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A    TREATISE 


ON   THE 


LAW  OF  AGENCY 


IXCLUDINQ  NOT  ONLY  A  DISCUSSION  OF  THE  GENERAL  SUBJECT, 


BUT  ALSO 


SPECIAL    CHAPTERS 


ATTORNEYS,  AUCTIONEERS,  BROKERS  AND  FACTORS. 


BT 

FLOYD    R.    MECIIEM. 


CHICAGO : 
CALLAGHAN  AND  COMPANY. 

1S89. 


T 

Entered  according  to  Act  of  Congress,  in  the  year  1888,  by 

FLOYD  R.  MECHEM. 
In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


FOURTH   IMPRESSION. 


Stereotyped  and  Printed  at  the 
Detroit  Free  Press  Printing  Hoosb. 


TO  THB 

Hon.   BENJAMIN  F.   GRAVES,  LL.  D., 

FOR  MANY   YEARS  A 

JUSTICE  OF  THE  SUPREIVIE  COURT 
OF  MICHIGAN, 

THIS  VOLUME  IS  RESPECTFULLY  DEDICATED. 

NOT  ONLY 

AS  A  TOKEN  OP  THE  GREAT 

PERSONAL  REGARD 

WHICH  THE  AUTHOR  FEELS  FOR  HIM,  BUT  ALSO 

A3  A  SLIGHT  RECOGNITION 

of  the  appreciation  which  he,  in  common  with  all  citizens,  feeh 
for  one  who,  in  the  course  of  a  career  extending  through  every 
grade  of  judicial  olHce,  from  the  local  magistracy  of  his  town 
to  the  chief-justiceship  of  his  State,  has  so  unsparingly 
devoted  the  best  energies  of  a  long  and  honorable 
life  to  one  of  the  highest  of  human  pursuits, — 
the  pure  and  impartial  administration  of 
justice;  and  who  now,  in  voluntary  retire- 
ment from  judicial  life,  is  experienc- 
ing that  satisfaction  which  must 
come  from  the  conscionsness 
of  such  work  well  done. 


f.na'^  on 


PEEFAOE. 


What  here  follows  is  the  result  of  an  earnest  endeavor  to  make 
a  reliable,  useful  and  comprehensive  statement  of  the  law  of 
Agency,  including  not  only  its  general  form,  but  certain  also  of 
its  more  important  special  forms.  How  far  this  effort  has  been 
successful,  those  who  use  the  book  can  alone  determine. 

The  plan  pursued  has  been  to  state  in  as  clear  and  accurate 
form  as  possible,  the  principles  of  law  involved,  supported  by  a 
full  citation  of  the  authorities,  and  to  illustrate  and  fortify  these 
statements  by  examples  and  quotations  from  leading  and  charac- 
teristic cases.  Upon  doubtful  questions  there  has  been  given, 
either  in  the  text  or  in  the  notes,  a  more  or  less  full  presentation 
of  the  conflicting  views,  and  the  writer  has  endeavored  to  extract 
from  them  what  seemed  to  him  to  be  the  true  principle.  This 
has  involved,  in  many  cases,  an  expression  of  his  own  opinion, 
for  which  he  is,  of  course,  alone  responsible. 

For  the  benefit  of  tliose  to  whom  complete  libraries  are  not 
accessible,  —  and  they  embrace  the  great  majority  of  the  profes- 
sion,— he  has,  in  many  instances,  made  the  statements  of  cases 
and  the  excerpts  from  the  opinions  of  the  courts,  fuller  than 
might  otherwise  seem  necessary.  While  this  course  has  added 
to  the  size  of  the  book,  the  writer  hopes  it  has  also  added  propor- 
tionately to  its  value.  If  he  has  erred  in  this  regard,  it  is  the 
error  of  a  too  abundant  caution.  To  further  increase  the  practi- 
cal usefulness  of  the  book  he  has,  at  the  expense  of  no  little 
additional  labor,  given  parallel  references  to  those  excellent  series 
of  reports,  the  American  Decisions,  American  Reports,  American 
State  Reports  and  Moak's  English  Reports,  as  well  as  to  the 
various  Reporters  and  Law  Journals.  In  several  of  the  States 
the  law  of  agency  has  been,  to  a  greater  or  less  extent,  reduced 


VI  PREFACE. 

to  the  form  of  a  code.     The  more  important  of  these  etatutorj 
provisions  will  be  found  collected  in  the  Appendix. 

The  work  is  divided  into  five  parts  or  books.  Of  these, 
the  first  four  are  devoted  to  a  general  exposition  of  the  law 
of  Agency,  while  the  fifth  contains  a  consideration  of  the  law 
applicable  to  Attorneys,  Auctioneers,  Brokers,  and  Factors. 
That  this  method  of  treatment  involves  something  of  repetition 
is  true,  but  in  the  writer's  opinion  the  advantages  of  consecutive 
and  separate  treatment  more  than  compensate  for  it.  The  sub- 
jects of  ship  and  bank  oflficers,  and  others  sometimes  treated  in 
works  upon  agency,  have  not  been  separately  dealt  with,  not  only 
because  they  belong  more  appropriately  to  other  topics,  but 
because  the  size  of  the  work  would  not  permit  of  it.  Each  of 
the  four  separate  forms  treated  might  well  be,  as  each  has  been, 
made  the  subject  of  an  independent  treatise,  and  to  compress 
them  into  single  chapters  p'revents  exhaustive  discussion.  It  is 
believed,  however,  that  no  important  principle  has  been  omitted, 
and  that  what  these  chapters  lack  will  be  matter  which  is  cumu- 
lative or  of  detail  only.  Trusting  that  his  work  will  be  of  use  to 
those  for  whom  it  was  intended,  the  writer  submits  it  to  the 
profession. 

Floyd  E.  Mechem. 

DXTBOIT,  GOTOBEB  1,  1888k 


TABLE    OF   CONTENTS. 


BOOK  I. 

OF  THE  RELATION  IN  GENERAL;  EOW  CREATED  AND 
TERMINATED. 

CHAPTER  I.— DEFINITIONS  AND  DIVISIONS. 

Agency  defined §  1 

Relation  to  Master  and  Servant 2 

Other  Names  employed 3 

Actual  and  Ostensible  Agencies 4 

Classes  of  Agents 5 

Universal,  General  and  Special  Agents 6 

Uses  of  these  Distinctions 7 

DiflBculty  of  Determination 8 

How  Question  determined 9 

Special  Forms  of  Agency 10 

Attorneys  at  Law 11 

Auctioneers 12 

Brokers 13 

Factors  and  Commission  Mercliants 14 

Officers  of  Ships 15 

Partners 16 

Bank  Officers 17 

CHAPTER  II.— FOR  WHAT  PURPOSES  AN  AGENCY  MAY 
BE  CREATED. 

General  Rule — For  any  lawful  Purpose §  18 

Illegal  and  personal  Acts  cannot  be  delegated 19 

I.    Undertakings  Contrary  to  Law  or  opposed  to  Public  Policy. 

In  general — Void 20 

The  Element  of  Contingent  Compensation 21 

Lobbying  Agents 23 

Same  Subject — Legitimate  Services 23 

Procuring  Contracts  from  Government  and  Heads  of  Departments 24 

Same  Subject — Illustrations 25 

Services  in  prosecuting  Claims 26 

Compromise  of  Crime .  27 

Services  in  procuring  Appointments  to  Office 28 

[vii] 


viii  TABLE    OF    CONTENTS. 

Same  Rule  applies  to  private  Offices  and  Employments §  29 

Services  in  improperly  influencing  Elections 30 

Same  Subject— What  Services  legitimate 31 

Services  in  procuring  Pardons 32 

How  when  Conviction  illegal 33 

Services  in  procuring  or  suppressing  Evidence 34 

Unlawful  dealings  in  Stocks  and. Merchandise 35 

Marriage  Brokerage  Contracts  void 36 

Corruption  of  Agents 37 

Other  Cases  involving  same  Principles 38 

Agent  must  participate  in  unlawful  Purpose 39 

Whole  Contract  void  when  entire 40 

II.     Powers  op  a  Personal  Nature. 
Personal  Duty,  Trust  or  Confidence  cann'ot  be  delegated 41 

CHAPTER  III.— WHO  MAY  BE  PRINCIPAL  OR  AGENT;  AND 
HEREIN  OF  JOINT  PRINCIPALS  AND  AGENTS. 

Purpose  of  Chapter §  42 

I.     Who  may  be  Princifals. 

The  general  Rule— Every  Person  competent  to  act  in  his  own  Right 43 

Same  Subject — Corporations 44 

Same  Subject— Part nerships 45 

Incompetency — In  general 46 

a.     Persons  Ifaturally  Incompetent. 

Persons  of  unsound  Mind 47 

Exceptions — Innocent  Party — Sane  Intervals 48 

Drunken  Persons  as  Principals 49 

Same  Subject — Ratification  or  Disafl3rmance 50 

6.     Persons  Legally  Incompetent. 

Infants  as  Principals 51 

Same  Subject — Ratification  by 52 

Further  of  this  Rule 53 

Same  Subject— Dissent— Exceptions 54 

In  Reason  how 55 

Married  Women  as  Principals 56 

II.     Who  mat  be  Agent. 

a.     Competency  in  Ocneral. 

General  Rule — Any  competent  Person 57 

Less  Degree  of  Competency  required  in  Agent  than  in  Principal 58 

Infanta  as  Agents 59 

Slaves  as  Agents 60 

Married  Women — As  Agents  for  third  Persons 61 

Same  Subject — Wife  as  Agent  for  her  Husband 62 


TABLE    OF    CONTENTS.  IX 

Husband  as  Agent  for  his  Wife §  63 

Corporations  as  Agents 64 

Partnerships  as  Agents 65 

b.     Disqualijicaiion  from  Adoirse  Interest. 

One  cannot  be  Agent  if  Duty  and  Interest  conflict 66 

One  cannot  be  Agent  of  both  Parties — When 67 

Cannot  be  Party  and  Agent  for  opposite  Party 68 

III.     Joint  Prikcipals. 

When  Power  of  Appointment  is  joint 69 

Partners "^ 

Joint  Tenants  and  Tenants  in  Common 71 

Associations,  Clubs,  Societies  and  Committees 73 

Same  Subject — Illustrations 73 

Same  Subject— The  Rule  stated 74 

Inchoate  Corporations '^5 

IV.     JoiKT  Agents. 

Authority  to  several 76 

Private  Agency  must  be  executed  by  all 77 

Public  Trust  or  Agency  may  be  executed  by  a  Majority 78 


CHAPTER  IV.— OF  THE  APPOINTMENT  OF  AGENTS  AND  THE 
EVIDENCE  THEREOF. 

Purpose  of  Chapter §79 

I.     How  Agents  may  be  appointed. 

Only  by  the  Will  of  the  Principal 80 

How  Principal's  Will  may  be  expressed 81 

Authority  by  Law  and  of  Necessity 82 

Authority  by  Implication — Presumption — Estoppel 83 

Same  Subject— The  Rule  stated 84 

Same  Subject — Limitations  of  this  Rule 85 

Same  Subject — What  sufficient — Instances 86 

Same  Subject — What  not  sufficient— Instances 87 

Authority  by  express,  unwritten  Appointment 88 

By  Parol — To  sell  or  lease  Lands 89 

By  Parol — To  demand  and  collect  Rents , 90 

By  Parol — To  execute  written  Instruments  not  under  Seal 91 

What  Writing  sufficient  when  Writing  required 92 

Authority  to  execute  sealed  lustrumeats  must  be  under  Seal 93 

Same  Subject — Authority  to  fill  Blanks  in  Deeds 94 

Same  Subject — How  when  Seal  superfluous 95 

How  in  Principal's  Presence  and  by  his  Direction 96 

Appointment  by  Corporations 97 

Same  Subject — To  execute  Deed  of  corporate  Realty 98 


X  TABLE    OF    CONTENTS. 

II,     Evidence  of  Appointment. 

Purpose  of  the  Subdivision §99 

Agent's  Authority  cannot  be  established  by  his  own  Statements  or  Admis- 
sions   100 

Agent's  Authority  cannot  be  proved  by  general  Reputation 101 

Agent  must  be  called  as  a  Witness 102 

Written  Authority  must  be  produced — When 103 

Construction  of  Writing  for  Court 104 

Effect  of  undisputed  Facts  to  be  determined  by  Court 105 

In  other  Cases,  Question  is  for  the  Jury 106 

Authority  by  Ratification 107 

Acceptance  of  Agency  by  Agent lOS 


CHAPTER  v.— OF  RATIFICATION. 

Purpose  of  Chapter §  109 

I.  What  is  meant  by  Ratification. 

What  Ratification  is 110 

II.  What  Acts  may  be  ratified. 

In  general ....  Ill 

The  general  Rule 112 

Torts  may  be  ratified 113 

Void  Acts  cannot  be  ratified  —  Voidable  Acts  may  be 114 

Illegal  Acts  cannot  be  ratified 115 

Ratification  of  Forgery 116 

III.  Who  may  ratify. 

General  Rule 117 

Corporations  may  ratify 118 

Partners  may  ratify 119 

Infant  cannot  ratify 120 

When  Agent  may  ratify 121 

Ratification  by  incompetent  Person ...   122 

Ratification  by  Guardian  or  Executor 123 

IV.  Conditions  of  Ratification. 

1.  Principal  must  have  been  identified 124 

2.  Principal  must  have  been  in  Existence 125 

3.  Principal  must  have  present  Ability 126 

4.  Act  must  have  been  done  as  Agent 127 

5.  Knowledge  of  material  Facts 128 

Same  Subject  —  General  Rule 129 

6.  No  Ratification  of  Part  of  Act 130 

7.  Rights  of  other  Party  must  be  prejudiced 131 

Burden  of  Proof 132 

Relief  of  Principal  when  Facts  not  fully  known 133 


TABLE    OF    CONTENTS.  XI 

V.  What  amounts  to  a  Ratification, 

Importance  of  Question §  134 

Written  —  Unwritten,  Express  — Implied 135 

a.  Express  Ratification. 

General  Rule 136 

Deed  at  Common  Law  ratified  only  by  Instrument  under  Seal 137 

Same  Subject  —  Rule  relaxed  in  Partnership  Cases 138 

Same  Subject  —  ^lassachusetts  Rule 139 

Same  Subject  —  Modern  Rule  more  liberal 140 

Unnecessary  Seal  may  be  disregarded 141 

By  Authority  subsequently  conferred 142 

By  Answer  in  Chancery 143 

Contract  for  sale  or  leasing  of  Land  ratified  by  parol 144 

"  Lawfully  authorized"  under  Statute  of  Frauds 145 

b.  Implied  Ratification. 

In  general 146 

Variety  of  Methods 147 

By  accepting  Benefits 148 

Same  Subject  —  Instances 149 

Same  Subject  —  Other  Instances 150 

By  bringing  Suit  based  on  Agent's  Act 151 

Mere  Delay  in  suing,  no  Ratification 152 

Ratification  by  Acquiescence  —  Silence 153 

Same  Subject  —  Election 154 

Same  Subject  —  Must  elect  within  a  reasonable  Time 155 

Same  Subject  —  Sleeping  on  Rights 156 

Same  Subject  —  Rules 157 

Same  Rule  applies  to  private  Corporations 158 

And  to  Municipal  and  Quasi-Municipal  Corporations 159 

How  when  assumed  Agent  is  a  mere  Stranger 160 

Same  Subject  —  True  Rule 161 

Silence  does  not  ratify  if  Stranger  acts  in  his  own  Name 163 

Information  by  Letter 163 

Ratification  by  Acquiescence  —  Illustrations 164 

Rule  applies  only  to  Principals 165 

VI.  Thb  Results  op  Ratification. 

"What  for  this  Subdivision 166 

1.  In  general. 

Equivalent  to  precedent  Authority 167 

Cannot  affect  intervening  Rights 168 

Ratification  irrevocable 169 

t.  As  between  Principal  and  Agent. 

In  general 170 

The  general  Rule 171 

Agent's  Motives  unimportant 172 

Efforts  to  avoid  Loss  no  Ratification 173 


Xii  TABLE    OF    CONTENTS. 

Ratification  must  be  in  ioto §  1'''4 

Ratification  of  Appointment  of  Subasient 175 

Ratification  of  Torts  does  not  discbarge  Agent's  Liability  to  third  Ter- 

sons *  * " 

Acts  of  Ratification  liberally  construed 177 

S.  As  between  Principal  and  the  other  Party. 

a.  Other  Party  against  Principal 178 

b.  Principal  against  the  other  Party 179 

4.  As  between  Agent  and  the  other  Party. 

In  general ^"" 

Ratification  releases  Agent  in  Contract 181 

Otherwise  in  Tort 1^^ 

CHAPTER  VI. -OF  DELEGATION  OF  AUTIIORITT. 
In  general §  ^^ 

I.  Delegation  by  the  Principal. 

II.  Delegation  by  the  Agent. 

Delegatus  non  potest  delegari 184 

General  Rule ^^^ 

Same  Subject  —  Judgment  and  Discretion  cannot  be  delegated 186 

Attorneys  cannot  delegate  personal  Undertakings 187 

Arbitrators  cannot  delegate  their  Powers 188 

Executors,  &c.  cannot  delegate  personal  Trusts 189 

Same  Rule  applies  to  Municipal  Corporations 190 

And  to  private  Corporations 1^1 

Exceptions  and  Modifications 192 

1.  Mechanical  and  ministerial  Duties  may  be  delegated 193 

2.  When  Necessity  requires  it 194 

3.  When  justified  by  Usage  or  Course  of  Trade 195 

4.  When  originally  contemplated 196 

Effect  of  Appointment ^^'^ 

CHAPTER  VII.— TERMINATION  OF  THE  RELATION. 

Purpose  of  Chapter §198 

Variety  of  Methods 199 

I.  By  original  Agreement. 

1.  By  Eflflux  of  Time 200 

2.  By  Accomplishment  of  Object 201 

Same  Subject 202 

II.  By  Act  of  the  Parties. 
1.  Revocation  by  the  Principal. 
A.  Private  Agency. 

General  Rule—  As  between  Principal  and  Agent,  Agency  is  revocable  at 

any  Time  if  not  coupled  with  an  Interest 204 


TABLE   OF   CONTENTS.  XI U 

What  Interest  sufficient §  205 

Same  Subject  —  Instances 206 

What  Interest  not  sufficient —  Instances 207 

Same  Subject  —  Bare  Powers 208 

Power  to  revoke  —  How  distinguished  from  Right  to  revoke 209 

When  Right  to  revoke  exists 210 

What  amounts  to  Contract  for  definite  Time  —  Unilaleral  Agreements. .  211 

Same  Subject  —  When  definite  Time  will  be  implied 212 

Agency  terminable  for  Agent's  Incompetence 213 

When  Agency  may  be  terminated  for  Agent's  Misconduct 214 

Same  Subject  —  Illustrations 215 

How  the  Authority  may  be  revoked 216 

Same  Subject  —  By  sealed  Instrument 217 

Same  Subject  —  Express  Pve vocation  not  required 218 

Revocation  may  be  implied 219 

By  disposing  of  Subject-matter 220 

By  Dissolution  of  Partnership  or  Corporation 231 

By  Severance  of  joint  Interest 222 

Notice  of  Revocation 223 

a.  To  third  Person. 

When  Authority  was  general 224 

When  Authority  was  special 22S 

b.  To  Agents. 

Notice  must  be  given  to  Agent 226 

c.  To  Subagents. 

Notice  must  be  given  to  Subagents  —  When 227 

Notice  —  How  given  —  What  sufficient 228 

When  Evidence  of  Agency  recorded,  Revocation  should  be  recorded . .  229 

Notice  should  be  unequivocal 230 

How  Sufficiency  of  Notice  determined 231 

B.  Public  Agency. 

Statutory  Agency  not  revocable  at  will  of  Principal 283 

S.  Renunciation  by  Agent. 

General  Rule  —  Agent  may  renounce  at  any  Time 288 

By  mutual  Consent 234 

Abandonment  may  be  treated  as  Renunciation 235 

Agent  may  abandon  if  required  to  do  unlawful  Act 236 

Notice  of  Renunciation 237 

III.   By  Operation  of  Law. 

1.  By  Death  of  one  of  the  Fartiet. 

a.  By  Death  of  the  Principal. 

In  general 239 

General  Rule  —  Death  of  Principal  terminates  Agency 240 

Same  Subject —  Not  when  coupled  with  an  Interest 241 

Same  Subject  —  What  Interest  sufficient 242 


XIV  TABLE    OF    CONTENTS. 

Same  Subject  —  What  Interest  sufficient  —  Instances §  243 

Same  Subject  —  What  Interest  not  sufficient  —  Instances 244 

Eow  when  Death  unknown 245 

Same  Subject  —  Instances 246 

Death  of  Partner  or  Joint  Owner  dissolves  Agency 247 

Death  of  Principal  dissolves  Authority  of  Substitute 248 

b.  By  Death  of  the  Agent. 

General  Rule  —  Death  of  At^ent  terminates  Agency 249 

Not  when  coupled  with  an  Interest 260 

When  Death  of  one  of  two  Agents  terminates  Agency 251 

Effect  on  Substitute 259 

2.  By  Insanity  of  one  of  the  Parties. 

a.  By  Insanity  of  the  Principal. 

In  general , 253 

General  Rule 254 

But  —  Ignorance  of  Insanity 255 

When  coupled  with  an  Interest 256 

What  Evidence  of  Insanity  sufficient 257 

b.  By  Insanity  of  the  Agent. 

In  general 258 

General  Rule  —  Terminates  Agency  unless  coupled  with  an  Interest 259 

How  when  Insanity  is  unknown 260 

Insanity  of  one  of  two  or  more  Agents 261 

Subagents 262 

S.  By  Bankruptcy  of  one  of  iJie  Parties. 

a.  Bankruptcy  of  Principal. 

General  Rule  —  Bankruptcy  of  Principal  terminates  Agent's  Authority.  263 

Mere  Insolvency  not  enough 264 

Agent's  Authority  not  dissolved  when  coupled  with  an  Interest 265 

How  when  Bankruptcy  unknown 266 

b.  Bankruptcy  of  the  Agent. 

General  Rule 267 

4.  By  Marriage. 

In  general 268 

5.  By  War. 

In  general 269 

6.  By  Termination  of  Prindpal's  AuiJiority. 

Principal's  Removal  from  Office  removes  Subordinates 270 


TABLE   OF   CONTENTS.  XV 

BOOK  II. 

OF  TEE  AUTHORITY  CONFERRED— ITS  NATURE  AND  EFFECT. 

CHAPTER  L— OF  THE  NATURE  OP  THE  AUTHORITY. 

Purpose  of  Book  II §271 

Nature  and  Extent  of  the  Authority 272 

I.  Op  Express  and  Implied  Authority. 

Where  Authority  is  express 278 

Where  Authority  is  implied 274 

II.  Universal,  General  and  Special  Agencies. 

In  general 275 

Persons  dealing  with  Agent  must  ascertain  his  Authority 276 

Different  Aspects  of  Question 277 

Authority  an  Attribute  of  Character  bestowed  by  Principal 278 

The  Province  of  Instructions — Apparent  Authority  cannot  be  limited  by 

secret  Instructions 279 

The  Doctrine  of  implied  Powers 280 

Powers  conferred  by  Usage 281 

What  constitutes  Authority 283 

General  and  special  Authority 283 

Same  Subject 284 

Same  Subject — The  true  Distinction 285 

General  Agency  not  unlimited 286 

General  Agent  binds  Principal  only  when  acting  within  the  Scope  of  his 

Authority 287 

Special  Agent's  Authority  must  be  strictly  pursued 288 

Third  Persons  must  act  in  good  Faith 289 

Person  dealing  with  Agent  must  exercise  reasonable  Prudence 290 

Same  Subject — Must  ascertain  whether  necessary  Conditions  exist 291 

Same  Subject — Authority  of  Public  Agents  must  be  ascertained 292 

CHAPTER  II.— OF  THE   CONSTRUCTION  OF  THE  AUTHORITY. 

Purpose  of  this  Chapter §  293 

I.  When  Authority  is  Conferred  by  Writing. 

Construction  of  Writing  for  Court 294 

Intention  to  govern 295 

How  Intention  discovered — Language  used 296 

Entire  Writing— Other  Writings 297 

Surroundings  of  the  Parties 298 

Parol  Evidence — Latent  and  patent  Ambiguities 299 

Same  Subject— Identifying  Subject-matter 800 

Same  Subject — Parol  Evidence  cannot  enlarge  Authority 801 

ii 


XVI  TABLE    OF    CONTENTS. 

Same  Subject— Parol  Evidence  cannot  contradict  Writing §  302 

Effect  must  be  given  to  every  Word  and  Clause 803 

Transaction  to  be  upheld  rather  than  defeated 304 

Authority  to  be  interpreted  in  Light  of  Lex  Loci 305 

General  Powers  limited  by  specific  Object  or  Recital 306 

Construed  to  apply  only  to  Principal's  private  Business 307 

Only  those  Powers  expressly  given  or  necessarily  implied 308 

IL  Wheke  Authority  is  Unwritten  ok  Implied. 

Where  Authority  is  unwritten  but  express 309 

Where  Authority  is  unwritten  but  implied 310 

Authority  carries  with  it  every  power  necessary  to  accomplish  Object. .  311 

Implied  Authority  not  to  be  extended  beyond  its  legitimate  Scope  313 

Implied  Power  limited  to  Principal's  Business 813 

III.  Where  Authority  is  Ambiguous. 

Duty  of  Principal  to  make  his  Instructions  clear 314 

Where  ambiguous,  Construction  adopted  in  Good  Faith  sufficient 315 

CHAPTER  III.— OF    THE    CONSTRUCTION   OF  AUTHORITIES  OF 
CERTAIN  KINDS. 

Purpose  of  this  Chapter §  316 

In  general 317 

1.  Of  Agent  authorized  to  sell  Land. 

What  Authority  is  sufficient 318 

When  Authority  to  be  exercised 319 

What  Execution  authorized 320 

Authority  to  sell  implies  Right  to  convey 321 

To  insert  usual  Covenants  of  Warranty 322 

But  not  to  mortgage 323 

Authority  to  receive  Payment 324 

Authority  to  give  Credit 325 

Authority  to  sell  does  not  authorize  Exchange  or  Gift 326 

Does  not  authorize  Waste,  or  Sale  of  Timber  separate  from  the  Land. . .  327 

Does  not  authorize  changing  Boundaries  of  Land 328 

Does  not  authorize  Partition 329 

Does  not  authorize  Dedication  to  Public  Use 330 

Nor  Conveyance  in  Payment  of  Agent's  Debts 331 

No  implied  Power  to  revolie  Contracts 332 

No  implied  Power  to  discharge  Mortgage 333 

No  implied  Power  to  .invest  Proceeds 334 

2.  Of  Agent  a/uthorized  to  sell  Personal  Pro2)erty. 

When  Authority  exists 835 

Authority  to  receive  Payment — In  general 836 

Authority  to  receive  Payment  not  implied  from  Possession  of  Bill 337 

Agent  having  Possession  or  other  Indicia  of  Ownership  may  receive 

Payment 838 


TABLE    OF    CONTENTS.  XVU 

Agent  to  sell  merely  or  to  solicit  Orders  without  Possession  of  Goods  not 

authorized  to  receive  Payment §  339 

When  travelling  Salesman  may  receive  Payment 340 

Same  Subject — When  Payment  to  Agent  Part  of  Terms  of  Sale 341 

Same  Subject— Notice  of  Want  of  Authority 343 

Same  Subject — No  implied  Authority  to  sell  his  Samples 343 

Same  Subject — Purcliaser  can  not  set  off  Debt  due  from  Agent 344 

Same  Subject— Implied  Authority  to  hire  Horses 345 

Same  Subject — Authority  to  procure  other  Supplies 346 

Implied  Authority  to  warrant  Quality.. 347 

Same  Subject — The  general  Rule 348 

Illustrations  of  this  Rule 349 

Limits  of  this  Rule 350 

Authority  to  warrant  Title 351 

No  implied  Power  to  exchange  or  barter 352 

No  implied  Power  to  give  Credit 353 

No  Authority  to  appropriate  to  his  own  Use 354 

No  implied  Authority  to  release  Principal's  Right  or  to  pay  Principal's 

Debts 355 

No  Authority  to  pledge  Goods 356 

No  Authority  to  promise  Commissions  for  Sub-sales 357 

No  Authority  to  sell  at  Auction 358 

Authority — When  to  be  exercised 359 

No  Authority  to  rescind  the  Sale 360 

No  Authority  to  mortgage 361 

Authority  to  fix  Price  and  Terms  of  Sale 362 

3.  Of  Agent  authorized  to  Purchase. 

May  not  buy  on  Credit  when  furnished  with  Funds 363 

May  buy  on  Credit  when  not  supplied  with  Funds 364 

Has  Power  to  agree  upon  Price  and  Terms  of  Purchase. 365 

May  not  exceed  Limits  as  to  Quantity 366 

Must  observe  Limits  as  to  Quality  or  Species 367 

May  be  restricted  as  to  Persons  with  whom  to  deal 368 

May  make  Representations  as  to  Principal's  Credit 369 

May  not  execute  negotiable  Paper 370 

4.  Of  Agent  authorized  to  Receive  Payment. 

What  constitutes  such  Authority 871 

When  implied  from  negotiating  the  Contract 372 

When  implied  from  Possession  of  the  Securities 373 

When  implied  from  having  sold  the  Goods 374 

Can  receive  nothing  but  Money 375 

No  Authority  to  release  or  compromise  the  Debt 376 

May  receive  part  Payment 377 

But  may  not  extend  Time 378 

Authority  to  collect  Interest  does  not  authorize  Collection  of  Principal.  379 

Not  authorized  to  receive  before  due 380 

No  Authority  to  take  Checks 381 


XVni  TABLE    OF    CONTENTS. 

If  authorized  to  take  Check  or  Note,  has  no  Authority  to  indorse  or  col- 
lect it §383 

Authority  to  collect  does  not  authorize  Sale 383 

No  Authority  to  deal  with  Funds  collected 384 

May  give  Receipt  or  Discharge 886 

Implies  Authority  to  sue 386 

May  sue  in  his  own  Name — When 387 

May  employ  Counsel 388 

5.   Of  Agent  authorized  to  Make  and  Iad>rt:e  NigotiaUe  Paper. 

What  constitutes  such  Authority 389 

Same  Subject— Authority  strictly  construed 390 

When  Authority  implied 391 

Must  be  confined  to  Principal's  Business 393 

Execution  must  be  confined  to  Limits  specified 893 

Negotiable  Paper  or  Deeds  delivered  to  Agent  in  Blank 394 

6.   Of  Agent  authorized  to  Manage  Business. 

Extent  of  Authority  depends  on  Nature  of  Business 395 

When  Power  implied  to  pledge  Principal's  Credit 396 

Implied  Power  to  sell  Product  of  Business 397 

None  to  bind  by  Negotiable  Instrument 398 

When  may  borrow  Money 399 

May  not  make  Accommodation  Paper 400 

May  not  pledge  or  mortgage  the  Property  of  his  Principal 401 

May  not  sell  Principal's  Land 402 

May  not  embark  in  new  and  different  Business 403 

May  not  sell  the  Business 404 

7.  Of  Agent  authorized  to  Settle. 

May  not  submit  to  Arbitration 405 

May  not  assign  Demand 406 


BOOK  III. 

OF  THE  EXECVTION  OF  THE  A  UTHORITT, 

CHAPTER  I.— IN  GENERAL. 

Purpose  of  Book  III §407 

Primary  Purpose  to  bind  Principal  and  not  Agent 408 

Must  act  within  Scope  of  Authority 409 

Necessity  of  proper  Execution 410 

How  Question  determined 411 

Execution  within,  and  exceeding  Authority. ...   413 

Slight  Deviation  does  not  invalidate 413 

When  separable,  authorized  Part  may  stand 414 


TABLE   OF   CONTENTS.  XIX 

When  Execution  lacks  essential  Elements §  415 

Summary  of  the  Rules  416 

Should  act  in  Name  of  the  Principal 417 

CHAPTER  II.— OP  THE  EXECUTION  OP  SEALED  INSTRUMENTS. 

Purpose  of  Chapter §  418 

Must  purport  to  be  made  and  sealed  in  Name  of  the  Principal 419 

How  Question  determined 420 

Same  Subject — Not  enough  that  the  Agent  is  described  as  such 421 

Same  Subject — Illustrations 432 

Same  Subject — Further  Illustrations 423 

Same  Subject — Further  Illustrations — DescripHo  Femonm 424 

Same  Subject — What  Form  sufficient 425 

Distinction  in  Case  of  Public  Agent 426 

Whether  necessary  that  Deed  should  purport  to  be  executed  by  Agent — 

Rule  of  Wood  v.  Goodridge 437 

Same  Subject— Further  of  this  Rule 438 

Same  Subject — How  in  Reason 429 

Parol  Evidence  not  admissible  to  discharge  Agent 430 


CHAPTER  III.— OP  THE  EXECUTION  OP  SIMPLE  CONTRACTS. 
Purpose  of  this  Chapter §  431 

1,     Of  the  Execution  of  Negotiable  Paper. 

In  general — The  proper  Manner 432 

Same  Subject — General  Rule 433 

Same  Subject — Not  necessary  that  Agent's  Name  appear 434 

Not  enough  that  Principal  be  named  only  in  Body  of  Instrument 435 

Same  Subject — Where  Intent  to  charge  Principal  is  manifest 436 

Same  Subject — Other  Cases 437 

Where  no  Principal  is  disclosed,  Agent  is  bound  notwithstanding  he  signs 

as  • '  Agent " 438 

Negotiable  Paper  drawn  payable  to  an  Agent  and  indorsed  by  him 439 

How  when  made  by  Public  Agents 440 

Admissibility  of  parol  Evidence  to  show  Intent 441 

Same  Subject — What  Rules  applied 442 

Same  Subject — The  true  Rule 443 

Further  of  this  Rule 444 

3.     Of  the  Execution  of  other  Simple  Contracts. 

The  proper  Manner 445 

Intention  of  the  Parties  the  true  Test 446 

Agent  may  bind  himself  by  express  Words 447 

Same  Subject — Contrary  Intention  manifest 448 

The  Admissibility  of  parol  Evidence  to  show  Intent 449 


XX  TABLE    OF    COI^TJiiJTa. 


BOOK  ly. 


OF  TEE  RIGHTS.  DUTIES  AND  LIABILITIES  AEISING  OUT  OF 
THE  RELATION. 

CHAPTER  I.— IN  GENERAL. 

Purpose  of  Book  IV §450 

What  Parties  interested 451 

How  Subject  divided 452 

CHAPTER  n.— OF  THE  DUTIES  AND.  LIABILITIES  OF  THE  AGENT 
TO  HIS  PRINCIPAL. 

In  general — Duty  the  Measure  of  Liability i^  453 

I.      AOENT  MUST  BE  LOYAL  TO   HIS   TRUST. 

Loyalty  to  his  Trust  the  first  Duty  of  the  Agent 454 

May  not  put  himself  in  Relations  antagonistic  to  his  Principal 455 

May  not  deal  in  Business  of  his  Agency  for  his  own  Benefit 456 

Agent  authorized  to  purchase  for  his  Principal  may  not  purchase  for 

himself 457 

Same  Subject — Same  Principle  applies  to  Leases 458 

Same  Subject— What  Evidence  of  Trust  sufficient 459 

Same  Subject — When  Rule  does  not  apply 460 

Agent  authorized  to  sell  may  not  become  the  Purchaser 461 

Agent  authorized  to  purchase  may  not  purchase  of  himself 409 

To  what  Agents  the  Rule  applies 46cJ 

Further  of  the  Rule — Indirect  attempts — Ratification 464 

This  Rule  cannot  be  defeated  by  Usage 465 

Agent  may  purchase  with  Principal's  Consent 466 

Agent  employed  to  settle  Claim,  may  not  buy  and  enforce  it  against  his 

Principal 467 

Agent  may  not  acquire  Rights  against  his  Principal  based  on  his  own 

Neglect  or  Default 408 

Profits  made  in  Course  of  the  Agency  belong  to  the  Principal 469 

Same  Subject — Illustrations 470 

When  Principal  entitled  to  Agent's  Earnings 471 

Same    Subject — Rule  does  not  extend  to  mere  Gratuities  received  by 

the  Agent 472 

II.     To  Obey  Instructions. 

Agent's  Duty  to  obey  Instructions 473 

Results  of  Disobedience— Agent  liable  for  Losses  caused  by  it 474 

Same  Subject — Illustrations 475 

Form  of  Action — When  Agent  liable  in  Trover 476 

Same  Subject — The  Rule  stated — Intent  immaterial 477 


TABLE   OF    CONTENTS.  XX  i 

How  when  Agency  is  gratuitous §  478 

Exceptions  to  this  Rule 479 

Agent  not  bound  to  perform  illegal  or  immoral  Act 480 

Departure  from  Instructions  may  be  justified  by  sudden  Emergency. . . .  481 

Same  Subject — Limitations 483 

Where  the  Authority  has  been  substantially  pursued,  Agent  not  liable 

for  immaterial  Departure 483 

Where  Instructions  are  ambiguous,  and  Agent  acts  in  good  Faith 484 

How  affected  by  Custom 485 

Same  Subject — When  Presumption  conclusive 486 

No  Presumption  of  Disobedience 487 

III.    Not  to  be  Negligent. 

In  general 488 

Difficulty  of  defining  Negligence 489 

The  general  Rule 49O 

Consideration  of  this  Rule 491 

Same  Subject 492 

Same  Subject — Agent  bound  to  exercise  usual  Precautions 493 

Same  Subject — Not  bound  to  exercise  highest  Care 494 

Same  Subject — Good  Faith — Reasonable  Diligence 495 

Same  Subject — When  Agent  warrants  Possession  of  Skill 496 

How  when  Agency  is  gratuitous 497 

Same  Subject — When  employed  in  a  Capacity  which  implies  Skill 498 

Same  Subject — Bound  to  exercise  the  Skill  he  possesses 499 

Reasonable  Skill — How  determined 600 

Agent  not  liable  for  unforeseen  Dangers 601 

Agent  presumed  to  have  done  his  Duty 602 

Agent  not  liable  if  Principal  also  negligent 503 

When  Agent  liable  for  Neglect  of    Subagents 604 

Effect  of  Ratification  upon  the  Agent's  Liability 505 

The  Measure  of  Damages 606 

Same  Subject — Judgments,  Costs,  Counsel  Fees 607 

Illustrations  of  this  Rule 608 

1.  Neglect  of  Agent  in  making  Loans. 

Liable  for  resulting  Loss 509 

2,  Neglect  of  Agent  to  effect  Insurance. 

When  liable  for  Loss 510 

S.     Neglect  of  Agent  in  making  Collections. 

Liable  for  Loss  from  Negligence 511 

Same  Subject — Neglect  in  making  Remittance 513 

Same  Subject — Liability  for  Neglect  of  Correspondents  and  Subagents.  513 

Same  Subject — Liability  of  Banks 514 

Same  Subject — Liability  of  Attorneys 515 

Same  Subject — Liability  of  Mercantile  or  Collection  Agencies 516 

Same  Subject — Liability  of  Express  Companies 517 


Xxii  TABLE   OF    CONTENTS. 

Same  Subject— The  Measure  of  Damages §518 

Principal's  Right  of  Actiou   against  Subagents 519 

Del  Credere  Agents — How  liable  to  Principal 520 

When  Agent  liable  for  selling  to  irresponsible  Parties 521 

IV.      To    ACCOUNT   FOR    MONET    AND    PllOPEUTT. 

In  general 522 

Account  only  to  Principal— Joint  Principal 523 

Subagents— Account   to  whom 524 

Agent  may  not  dispute  his  Principal's  Title  525 

May  not  allege  Illegality  of  Transaction  to  defeat  Principal's  Claim 526 

When  may  maintain  Interpleader 527 

Agent's  Duty  to  keep  correct  Accounts 528 

Duty  to  keep  Principal's  Property  and  Funds  separate  from  his  own- 
Liability  for  commingling 529 

When  Agent  should  account 530 

Necessity  for  Demand  before  Action 531 

When  Agent  liable  for  Interest 532 

When  Liability  barred  by  Statute  of  Limitations 533 

Form  of  Action— When  equitable 534 

Of  the  Right  of  Set-off 535 

How  far  Principal  may  follow  trust  Funds 536 

Same  Subject— Illustrations 537 

V.    To  GIVE  Notice. 

Duty  to  give  Notice  of  Facts  material  to  his  Agency 538 


CHAPTER  in.— THE  DUTIES  AND  LIABILITIES  OF  THE  AGENT 
TO  THIRD  PERSONS. 

A.    Private  Agents. 

Agent  not  liable  to  third  Person  for  Non-feasance I  539 

Liable  when  he  binds  himself —Liable  for  Misfeasance 540 

I.    In  Contract. 
1.     Where  he  acts  without  Authority. 

In  general "^^ 

Where  Agent  erroneously  believing  himself  authorized  makes  express 

Representations  as  to  his  Authority 542 

Where  Agent  makes  express  Representations  known  to  him  to  be  false.  543 
Where  Agent  knowing  he  has  no  Authority  makes  a  Contract  implying 

its  Possession ^^* 

Where  Agent  erroneously  believing  himself  authorized  makes  no  express 

Representations ^^^ 

Where  Agent  discloses  all  the  Facts  relating  to  his  Authority 546 

How  in  Case  of  Public  Agent 647 


TABLE    OF    CONTENTS.  XXiii 

Contract  must  have  been  one  enforceable  against  Principal  if  author- 
ized   §548 

In  what  Form  of  Action  is  Agent  liable 649 

When  Ageiit  liable  on  Contract  itself 550 

S.     Where  though  Authorized  lie  fails  to  bind  Jiis   Principal. 

In  general, 551 

Where  Agent  intending  to  bind  Principal  uses  apt  Words  to  bind  him- 
self    553 

Where  Agent  intending  to  bind  Principal  binds  no  one 553 

Where  Agent  conceals  Fact  of  Agency  or  Name  of  Principal 554 

Where  Agent  makes  lull  Disclosures 555 

Where  Agent  acts  for  foreign  Principal 556 

Where  there  is  no  responsible  Principal 557 

Where  Agent  contracts  personally 558 

Same  Subject — Public  Agent 559 

S.     Where  the  Agent  has  received  Money. 

[n  general 550 

a.     Where  Money  has  been  paid  to  him  for  Principal. 

Not  liable  for  Money  paid  over  to  Principal  before  Notice 561 

jN«t  liable  where  before  Notice  his  Situation  has  been  changed 563 

Agent  I  able  for  Money  mispaid  though  paid  over,  if  Agency  was  not 

linown 663 

A.gent  liable  without  Notice  for  Money  illegally  obtained 504 

Agent  not  liable  for  Money  voluntarily  paid 565 

Where  Ag^nt  is  a  mere  Stalieholder , 566 

b.     Where  Money  has  been  paid  to  Agent  for  Third  Person, 

Whea  Agent  liable  to  such  third  Person 567 

Same  Subject— What  constitute  Assent — Consideration 568 

II.  In  Tokt. 

o.  For  Non-feasance. 

In  general— Is  ol  liable 559 

Same  Subject — Illustrations 57O 

b.  For  Misfeasance. 

Agency  no  Excuse  for  Misfeasance 571 

Same  Subject — Distinction  between  Non-feasance  and  Misfeasance 672 

Same  Subject— Principal's  Knowledge  or  Direction  no  Defense 573 

Same  Subject — Illustrations 574 

Liability  in  Respect  to  Subagents 575 

Same  Subject— Agent  who  conceals  Principal  liable  as  Principal  to  Sub- 
agents 576 

B.  Public  Agents. 
I.  Liability  for  their  own  Torts. 

In  general — Classification 577 

No  Action  by  Individual  for  Breach  of  Duty  owing  solely  to  the  Public.  578 

Liable  for  Wrongs  committed  in  private  Capacity 579 


XXiv  TABLE    OF    CONTENTS. 

1,  Judicial  Officers. 

Judicial  Officers  not  liable  when  acting  within  their  Jurisdiction §  580 

Liability  not  affected  by  Motive 581 

This  Immunity  extends  to  Judicial  Officers  of  all  Grades 583 

Jurisdiction  essential 583 

Act  must  be  confined  within  his  Jurisdiction 584 

Same  Subject— When    Jurisdiction   presumed— Superior    and    inferior 

Courts ^^^ 

Same  Subject — Limitations  of  this  Rule 586 

Not  liable  when  Jurisdiction  assumed  through  Mistake  of  Fact 587 

g.   Quasi- Judicial  Officers. 

What  Duties  are  Judicial — Quasi-Judicial 688 

S.  Legislative  Officers. 

Same  Immunity  extends  to  legislative  Action 589 

4.  Ministerial  Officers. 

In  General— Liable  to  Party  specially  injured 590 

Same  Subject— Nature  of  Duty  governs  Liability 591 

Same  Subject— What  Duties  are  ministerial 693 

II.  Liability  for  Torts  op  their  Official  SuBORomATES. 
Public  Officers  of  Government  not  liable  for  Acts  of  official  Subordi- 
nates    593 

Same  Subject— To  what  Officers  this  Rule  applies 594 

c.  For  Torts  of  his  Private  Servant  or  Agent. 

Liable  for  Torts  of  his  private  Servant  or  Agent 595 

CHAPTER  IV.— THE  DUTIES  AND  LIABILITIES  OF  THE  PRINCI- 
PAL  TO  THE  AGENT. 

In  general — Payment  of  Compensation — Indemnity §  596 

I.  The  Payment  of  Compensation. 
1.   The  Agent's  Right  to  Compensation. 

Agreement  to  pay  Compensation 597 

Express  Agreement  conclusive 598 

Where  Agreement  must  be  express 599 

When  Agreement  to  pay  will  not  be  implied 600 

When  Promise  to  pay  will  be  implied 601 

Unauthorized  Agent  entitled  to  Compensation  if  Acts  are  ratified 603 

S.   Tlie  Amount  of  Compensation. 

Express  Contract  governs 603 

May  be  left  for  Principal  to  determine 604 

In  the  Absence  of  express  Agreement,  Law  implies  reasonable  Compen- 
sation    605 

What  Elements  may  be  considered 606 

What  Evidence  as  to  Value  is  admissible 607 


TABLE    OF    CONTENTS.  XXV 

Agent  continuing  after  Expiration  of  Term  presumed  to  be  at  prior 

Compensation §  608 

S,   When  Compensation  is  Considered  to  be  Earned. 

In  general 609 

Compensation  earned  when  Undertaking  fully  completed 61 0 

Same  Subject — When  full  Performance  a  Condition  precedent 611 

Same  Subject — Not  defeated  by  Principal's  Default 612 

Same  Subject — No  Defense  that  Principal  realized  no  Profit 613 

1.  Revocation  by  Act  of  Principal. 

When  Agent  is  entitled  to  Compensation  if  Authority  is  revoked  before 

Performance ■ ...  614 

a.  Authority  Rightfully  Revoked. 

Same  Subject — Authority  rightfully  Revoked 615 

Same  Subject — Agency  at  Will  of  the  Principal 616 

Same  Subject — Agency  terminable  on  Contingency 617 

Same  Subject — Agency    terminable    only    on    Breach    of    express    or 

implied  Condition 618 

Same  Subject — When  terminated  for  Agent's  Misconduct 619 

b.  Authority  Wrongfully  Revoked. 

When  Agent  discharged  without  Cause,  Breach  of  implied  Contract....  620 

Same  Subject — Breach  of  express  Contract,  Agent's  Remedies 621 

Same  Subject — The  Measure  of  Damages 623 

Same  Subject — Duty  of  Agent  to  seek  other  Employment 623 

When  Right  of  Action  accrues 624 

No  Damages  if  Agent  acquiesces  in  Discharge 625 

2.  Reoocation  by  Operation  of  Law. 

No  Damages  where  Agency  revoked  by  Death  of  the  Principal 626 

Same  Rule  where  Agency  revoked  by  Insanity  of  the  Principal 627 

Rule  where  Agency  revoked  by  Bankruptcy  of  Principal 628 

Rule  where  Agency  revoked  by  Death  of  the  Agent 639 

Rule  where  Agency  revoked  by  Insanity  of  the  Agent 630 

How  when  Aiiency  terminated  by  Agent's  Sickness  or  Incapacity 631 

S.  Abandonment  by  Agent. 

1.  When  Abandonment  lawful. 633 

2.  When  Abandonment  wrongful 633 

Same  Subject — Entire  and  severable  Contract,  Right  to  Compensation..  634 

Same  Subject— The  Rule  stated 635 

Same  Subject— The  more  liberal  Rule,  Britton  v.  Turner 636 

Same  Subject— Further  of  the  Rule  of  Britton  v.  Turner 637 

Brief  Absences  no  Abandonment 638 

Condonation  of  Abandonment 639 

What  will  excuse  Abandonment — Sickness— Epidemic 640 

Contracts  not  to  terminate  without  Notice,  Forfeiture  for  Breach 641 

SameSubject — What  works  a  Forfeiture 643 


XXvi  TABLE    OF   CONTENTS. 

A.gent  can  not  recoyer  Compensation  from  either  Party  when  double 

Agency  unknown §  643 

Same  Subject — Slay  recover  when  double  Agency  was    fully    known 

aud  assented  to 644 

Ae;ent  cannot  recover  Compensation  if  Agency  was  Uulawf ul 645 

When  Agent  can  recover  for  extra  Services 046 

Principal's  Right  of  Recoupment 647 

Same  Subject— What  damages  may  be  Recouped 648 

feame  Subject — Limit  of  Recovery 649 

Same  Subject — Not  cut  off  by  Assignment 650 

No  Recoupment  against  au  lof ant 651 

II.  The  Agent's  Right  to  Reimbursement. 

Agent  must  be  reimbursed  for  proper  Outlays 653 

III.  The  Agent's  Right  to  Indemnity, 

Agent  must  be  indemnified  against  Consequences  of  lawful  Acts 653 

No  Indemnity  where  Act  is  unlawful 654 

IV.  The  Agent's  Right  to  Protection  from  Injury. 

In  general 655 

1.  From  the  Risks  incident  to  the  Business. 

General  Rule — Principal  not  Liable 656 

g.  From  the  Negligence  of  the  Principal. 

Principal  responsible  for  his  own  Negligence 657 

1.  For  dangerous  Premises 658 

2.  For  dangerous  Tools  and  Machinery 659 

3.  For  Injuries  resulting  from  Failure  to  repair  as  agreed 660 

Same  Subject 661 

4.  For  Employment  of  Incompetent  Servants 662 

5.  For  Injuries  outside  of  Employment 663 

S.     For  Negligence  of  his  General  Superintendent. 

Principal  cannot  relieve  himself  by  delegating  Duties 664 

Liable  fo.  Negligence  of  General  Agent  cr  Superintendent 665 

When  liable  to  Agents  of  Contractors 6GG 

4.     For  Negligence  of  Fellow- Servants. 

Principal  not  liable  to  one  Servant  for  Negligence  of  a  Fellow-Servant. .  667 

Same  Subject — Who  is  a  Fellow-Servant? 668 

Volunteer  assisting  Servant  can  not  recover 669 

Contributory  Negligence  of  Servant  defeats  hie  Recovery 670 

Agreements  to  waive  Liability  invalid 671 

V.    Agent's  Right  to  a  Lien. 

In  general 672 

Lien  defined — General  and  Particular  Liens 673 

Foundation  of  the  Claim  of  Lien 674 


TABLE    OF    CONTENTS.  XXV 11 

Nature  of  Lien §675 

Requisites  of  Lien — Possession 676 

Possession  must  have  been  lawfully  acquired 677 

Possession  must  be  cent  inuous 678 

Possession  must  have  been  acquired  in  Course  of  Employment 679 

No  Lien  if  contrary  to  Intention  of  Parlies — Waiver 680 

"Waiver  by  inconsistent  Conduct 681 

Claim  of  Lien  no  Waiver  of  personal  Remedies 683 

How  Lien  may  be  enforced 683 

How  these  Rules  apply  to  Agents 684 

Agent's  Lien  ordinarily  a  particular  Lien 685 

For  what  Sums  the  Lien  attaches 686 

VI.  Agent's  Right  of  Stoppage  in  Transit. 

Agent  liable  for  Price  of  Goods  may  stop  them  in  Transit 687 

Right  exercised  as  in  other  Cases 688 

Right  of  such  an  Agent  to  retain  Title  until  paid  for 689 

VII.  Rights  of  Subagent  against  Pkincipal. 

When  Principal  liable  for  his  Compensation 690 

Same  Rules  govern  Reimbursement  and  Indemnity 691 

How  as  to  Protection  against  Injury 692 

When  Subagent  entitled  to  a  Lien 698 


CHAPTER  v.— THE  DUTIES   AND  LIABILITIES   OF  THE  PRINCI- 
PAL TO  THIRD  PERSONS. 

Purpose  of  Chapter §  694 

I.    Liability  of  Pkincipal  in  contract. 
1.     TJte  Liability  of  an   Undisclosed  Principal. 

Undisclosed  Principal  liable  where  discovered  on  simple  Contracts 695 

Same  Subject— The  Rule  stated 696 

Same  Subject— Of  the  first  Exception 697 

Same  Subject— Of  the  second  Exception 698 

Same  Subject — What  constitutes  an  Election 699 

Same  Subject — Election  must  be  made  within  a  reasonable  Time 700 

Rule  applies  to  all  simple  Contracts 701 

Does  not  apply  to  Contracts  under  Seal — When 702 

3.     The  Liability  of  a  Disclosed  Principal. 

a.     For  Agent's  Acts  and  Contracts. 

In  general 703 

Principal  liable  for  Agent's  Acts  and  Contracts  in  Execution  of  Author- 
ity   704 

Same  Subject — The  Rule  stated 705 

Third  Person  must  ascertain  Agent's  Authority 706 

What  constitutes  Authority , 707 

Same  Subject — Secret  Instructions  and  Restrictions 708 


XX  via 


TABLE    OF    CONTENTS. 


General  and  Special  Agents §  709 

Same  Subject — Special  Agent's  Authority  must  be  strictly  pursued 710 

Eflfect  of  Ratification 711 

Performance  of  unlawful  Act  not  enforced 713 

Principal  not  bound  where  Agent  has  an  adverse  Interest 713 

b.    For  the  Agent's  Statements  and  Representations. 

When  Agent's  Admissions  and  Representations  binding  on  Principal. . .  714 

What  embraced  within  Res  Gestm 715 

Agent's  Authority  must  be  first  shown 716 

When  Principal  bound  by  Agent's  Representation  of  extrinsic  Facts 

upon  which  Authority  depend 717 

c.     By  Notice  given  to  the  Agent. 

General  Rule — Notice  to  the  Agent  is  Notice  to  the  Principal 718 

Same  Subject — The  Reason  of  the  Rule 719 

Same  Subject — Notice  acquired  during  Agency 720 

Same  Subject — Knowledge  acquired  prior  to  Agency. 721 

Same  Subject — Of  the  first  Exception 722 

Same  Subject — Of  the  second  Exception 723 

What  Notice  includes — Actual  and  constructive  Notice 724 

Rule  applies  only  to  Matters  within  Agent's  Authority 725 

Notice  after  Termination  of  Authority  does  not  bind 726 

Notice  must  be  of  some  material  Matter 727 

Notice  to  Subagent  when  Notice  to  Principal 728 

These  Rules  apply  to  Corporations 729 

Same  Subject — When  Notice  to  Director  is  Notice  to  Corporation 730 

Same  Subject — Notice  to  Stockholder,  not  Notice  to  the  Corporation  .  .  731 

11.    Liability  op  the  Pkincipal  m  Tort. 

a.    For  Agent's  Wrongful  Acts. 

In  general 733 

Principal  liable  for  Acts  expressly  directed 733 

Liable  for  Agent's  negligent  Act  in  Course  of  Employment 734 

Same  Subject — Acts  in  the  Course  of  his  Employment 735 

Same  Subject — Illustrations 736 

Not  liable  for  Negligence  not  in  Course  of  Employment 737 

Same  Subject — Illustrations 738 

Liability  for  Agent's  fraudulent  Act 739 

When  Principal  liable  for  Agent's  willful  or  malicious  Act 740 

Same  Subject — Illustrations 741 

Same  Subject — Liability  for  excessive  Force 742 

Liability  of  Principal  for  Agent's  false  or  fraudulent  Representations. ..  743 

Same  Subject — Third  Person's  Remedies 744 

Principal's  civil  Liability  for  Agent's  criminal  or  penal  Act 745 

Principal's  criminal  Liability  for  Agent's  criminal  or  penal  Act 746 

Principal's  Liability  for  Acts  of  independent  Contractor 747 

Same  Subject — Illustrations 748 

Principal's  Liability  for  Acts  of  Subagent 749 

EfiEectsof  Ratification 750 


TABLE   OF   CONTENTS.  XXix 

The  Measure  of  Damages  against  the  Principal §  751 

Unsatisfied  Judgment  against  Agent  no  Bar  to  Action  against  Principal.    753 

CHAPTER  VI.— THE  DUTIES  AND  LIABILITIES  OF    THIRD  PER- 
SONS  TO  THE  AGENT. 

I.  In  Contract. 

In  general— Right  of  Action  in  Principal  alone. §  753 

Agent  may  sue  on  Contract  made  by  him 754 

Agent  may  sue  on  Contract  made  with  him  personally 755 

Agent  may  sue  when  he  has  a  beneficial  Interest. 758 

Same  Subject — Principal  may  sue  or  control  Action 757 

Agent  only  may  sue  on  sealed  Contract  made  with  him  persoQally 758 

Agent's  Rights  depend  upon  the  Contract 759 

Right  of  assumed  Agent  to  show  himself  Principal 760 

Agent  may  recover  Money  paid  to  him  under  Mistake  or  illegal  Con- 
tract  , 761 

What  Defenses  open  to  third  Person 763 

What  Damages  Agent  may  recover  on  Contract 763 

II.  In  Tokt. 

Agent  may  sue  for  personal  Trespass 764 

When  Agent  may  sue  for  Injuries  to  Principal's  Property 765 

CHAPTER  VII.— THE  DUTIES  AND  LIABILITIES  OP  THIRD  PER- 
SONS TO  THE  PRINCIPAL. 

In  general 766 

The  Rule  stated 767 

1.  The  Right  to  Sue  on  Contract  made  by  Agent. 

May  sue  on  Contracts  made  in  Name  of  Principal 768 

May  sue  on  Contracts  made  in  his  Behalf  but  in  Agent's  Name 769 

Same  Subject— How    when   Contract  involves    Elements    of    personal 

Trust  and  Confidence 770 

Same  Subject — Principal  can  not  sue  where  Contract  solely  with  Agent 

personally 77I 

Same  Subject — Principal's  Rights  superior  to  Agent's 773 

Principal  subject  to  Defenses  which  could  have  been  made  against 

Agent 773 

Same  Subject — Limitation  of  Rule 774 

How  Principal  affected  by  Agent's  Fraud 775 

Third  Person  cannot  dispute  Principal's  Right— When 776 

Summary  of  Rules 777 

S.  Right  to  Recover  Money  paid  or  used  hy  Agent. 
In  general 773 

A. 
Right  in  Cases  of  first  Class 779 


3^j  TABLE   OF   CONTENTS. 

B. 

Principal's  Right  to  follow  trust  Funds 780 

Same  Suliject— Illustrations 781 

Same  Subject— Further  Illustrations— Restrictive  Indorsements 783 

Right  to  recover  Money  wrongfully  paid  by  Agent 783 

S.  Right  to  Recover  Property. 
In  general— Principal  may  recover  Property  wrongfully  applied  or  dis- 
posed of  by  Agent 784 

Principal's  Title  can  not  be  divested  except  by  his  Consent  or  voluntary 

Act 785 

Where  Possession  is  Evidence  of  Authority 786 

Possession  coupled  with  Indicia  of  Ownership 787 

Same  Subject— Illustrations 788 

Principal  may  recover  Property  appropriated  to  Agent's  uses 789 

Right  to  recover  Securities  wrongfully  released 790 

Right  to  recover  Property  wrongfully  sold 791 

^.  Right  to  Recover  for  Torts. 

May  recover  for  Injuries  occasioned  by  third  Person's  Torts 792 

For  enticing  Agent  away 793 

For  preventing  Agent  from  performing 794 

For  personal  Injury  to  Agent  causing  Loss  of  Service 795 

Third  Person  not  liable  for  Agent's  Fraud  or  Neglect 796 

5,  Remedies  for  Double  Dealing. 

How  when  third  Person  conspires  with  Agent 797 

How  when  Agent  in  secret  Employment  of  the  other  Party 798 

6.  Conclusiveness  of  Judgment  against  Agent. 
Principal  not  bound  by  Judgment  against  Agent  to  which  he  was  not  a 

Party 799 


BOOK  V. 

PARTICULAR  CLASSES  OF  AGENTS. 

CHAPTER  I.— OF  ATTORNEYS  AT  LAW. 

Scope  of  Chapter §  800 

I.  Op  the  Office. 

Who  meant  by  Attorney  at  Law 801 

Attorney  at  Law  defined 802 

Is  an  Officer  of  the  Court 803 

Who  may  be 804 

Party  may  appear  in  Person 805 

May  not  appear  by  Agent 806 


TABLE  OF  CONTENTS.  XXXI 

n.  Of  the  Relation  of  Attorney  and  Client. 

1.  A  Relation  of  Agency. 
Rules  of  Agency  govern §  807 

S.  How  Created. 

No  formal  Power  necessary 803 

III.  Appearance  presumptively  Axtthorized. 

Presumption  of  Authority 809 

This  Presumption  not  conclusive 810 

IV.  Implied  Authority  op  Attorneys. 

Has  general  Control  of  Conduct  of  Suit 811 

Same  Subject — What  included 812 

Same  Subject — What  not  included 813 

Can  not  delegate  his  Powers 814 

May  employ  Subordinates 815 

Authority  to  bind  Client  b3''  Bonds 816 

Authority  to  receive  Payment 817 

Same  Subject — After  Judgment 818 

Same  Subject — What  constitutes  Payment 819 

Authority  to  enforce  Judgment 820 

V.  Duties  and  Liabilities  op  Attorney  to  Client. 

Bound  to  highest  Honor  and  Integrity. 821 

Duty  to  disclose  adverse  Interests , 822 

Duty  to  remain  loyal 823 

Duty  to  use  reasonable  Care  and  Skill 824 

Same  Subject — Errors  in  Law  or  Judgment 825 

Same  Subject — Negligence  in  Collecting 826 

Same  Subject — Negligence  in  bringing  Suit 827 

Same  Subject — Negligence  in  Trial  of  Action 828 

Same  Subject — Negligence  in  examining  Titles 829 

Same  Subject — Negligence  in  preparing  Contracts,  «S;c 830 

Same  Subject— Neglect  of  Partners,  Clerks,  «fec 831 

Liability  for  exceeding  Authority,  or  violating  Instructions 832 

Liability  for  Money  collected — Liability  for  Interest 833 

Attorney  liable  though  acting  gratuitously 834 

The  Measure  of  Damages 835 

VL  Liability  of  Attorney  to  Third  Persons. 

Not  liable  for  Breach  of  Duty  owing  to  Client  only 836 

Liable  when  he  contracts  personally 837 

Liability  for  Clerk's,  Officer's  and  Witness's  Fees 838 

Liability  to  third  Person  in  Tort 839 

VIL   Liability  of  Client  to  Attorney. 

1.  Attorney's  Right  to  Reimbursement  and  Indemnity. 

Attorney  entitled  to  Reimbursement  and  Indemnity 840 

iii 


XXXU  TABLE   OF   CONTENTS. 

2.  Attorney's  Right  to  Compensation, 

Attorney  entitled  to  Compensation §  841 

Attorney  may  sue  for  Compensation 843 

a.  Where  tliere  was  a  special  Contract. 

Parties  may  agree  upon  Amount  of  Compensation 843 

Contracts  for  contingent  Compensation 844 

What  Contracts  champertous 845 

Such  Contracts  do  not  prevent  Settlement  by  Client 846 

But  Attorney  may  recover  from  Client 847 

b.  Where  there  was  no  special  Contract. 

Attorney  entitled  to  reasonable  Value  of  his  Services 848 

What  Evidence  admissible 849 

What  Evidence  not  admissible 850 

Lack  of  Success  no  Defense 851 

Negliajence  or  bad  Faith  may  be  shown 853 

Fees  forfeited  by  Breach  of  Trust 853 

How  when  Attorney  abandons  Service 854 

What  will  justify  Abandonment 855 

When  discharged  by  Client 856 

What  will  justify  Discharge 857 

When  Attorney's  Claim  barred  by  Limitation 858 

S.  Attorney's  Bight  of  Lien. 

Two  Kinds  of  Lien. 859 

1.   The  General  or  Retaining  Kind. 

General  Nature  of  this  Lien 860 

Declared  by  Statute  in  some  States 861 

What  this  Lien  adheres  to 862 

a.  Upon  Papers. 

b.  Upon  Property. 

c.  Upon  Money. 

What  Charges  the  Lien  secures 863 

Against  what  Parties,  Lien  prevails 864 

How  Lien  may  be  lost 865 

How  Lien  may  be  waived 866 

Enforcement  of  Lien 867 

S.  The  Special  or  Charging  Lien. 

General  Nature  of  this  Lien SfS 

In  what  States  it  exists 8P9 

What  this  Lien  protects 870 

When  Lien  attaches 871 

To  what  Lien  attaches 873 

How  Lien  protected 873 

How  Lien  enforced 874 

How  Lien  lost  or  waived 875 

By  what  Law  governed 876 


TAELE    OF    CONTENTS.  XXXlll 

VIII.  Dealings  between  Attorney  and  Client. 

In  general— Good  Faith  and  perfect  Fairness  required §  877 

Purchases  from,  and  Sales  to  Client — Adverse  Purchases 878 

Relation  of  Attorney  and  Client  must  exist 879 

IX.  Privileged  Communications. 

Confidential  Communications  privileered 880 

Under  what  Circumstances  privileged 881 

Same  Subject 883 

Relation  of  Attorney  and  Client  must  exist 883 

Communications  must  have  been  made  to  an  Attorney 884 

Privilege  is  the  Client's 885 

How  long  it  continues 886 

Attorney  may  disclose  for  his  own  Protection 887 

X.  Termination  op  the  Relation. 

By  Operation  of  Law 888 

By  Act  of  the  Parties 889 


CHAPTER  II.— OF  AUCTIONEERS. 

Purpose  of  this  Chapter §  890 

1.     Of  the  Auctioneer. 

Definition 891 

Who  may  be 892 

Whose  Agent  he  is 893 

2.     Row  authorized. 

Like  other  Agents 894 

S.     Auctioneer's  implied  Powers. 

To  fix  Terms  of  Sale 895 

To  accept  the  Bid 896 

To  receive  the  Price 897 

To  sue  in  his  own  Name  for  the  Price 898 

None — To  delegate  his  Authority 899 

None— To  sell  on  Credit 900 

None— To  rescind  Sale 901 

None — To  sell  at  private  Sale 903 

None— To  bid  himself 903 

None — To  warrant  Quality 904 

4.    Auctioneer's  Duties  and  LiahiUiies  to  Principal. 

Bound  for  reasonable  Skill  and  Diligence 905 

To  obey  Instructions 906 

To  account  for  Proceeds 907 

To  take  care  of  Goods. 908 

To  sell  for  Cash  only 909 

To  sell  to  third  Parties  only 910 


XXXI V  TABLK    OF    CONTENTS. 

To  sell  in  Person §  911 

To  disclose  his  Principal 912 

B.    Auctioneer's  Duties  and  LialnHtiea  to  Third  Persons 

Liable  when  he  conceals  Principal 913 

Liable  when  he  exceeds  his  Authority 914 

Liability  for  selling  Propprty  of  Stranger 915 

Not  liable  for  not  holding  Auction  as  advertised 916 

6.     Auctioneer's  RigJds  against  his  Principal. 

Compensation,  Reimbursement,  Indemnity 917 

Recoupment  of  Damages 918 

Auctioneer's  Lien 919 

Can  not  dispute  Principal's  Title 920 

7.     Auctioneer's  Rights  against  Third  Persons. 

Right  to  sue  Bidder 921 

Right  to  sue  Wrong-doer 922 

8.     PrincipaVs  Rights  against  Third  Persons, 

To  recover  Purchase  Price 923 

Where  Bidder  refuses  to  complete  Purchase 924 

9.     Rights  of  Third  Persons  against  Principal. 

Principal's  Liability  for  Auctioneer's  Acts 925 

Liable  for  Breach  of  Contract 926 

CHAPTER  in— OF  BROKERS. 

I.  Definitions  and  Divisions. 

Brokers — In  general §  927 

Different  Kinds  of  Brokers 928 

Bill  and  Note  Brokers 929 

Exchange  Brokers 930 

Insurance  Brokers 931 

Merchandise  Brokers 933 

Pawnbrokers 933 

Real  Estate  Brokers 934 

Ship  Brokers 935 

Stock  Brokers 936 

II.     ArPOlNTMENT   AND   TERMINATION. 

Appointed  like  other  Agents 937 

How  Authority  terminated 938 

III.  Implied  Powers  op  Brokers. 

In  general ^Z%- 

How  affected  by  Usage 940^ 

Usual  and  necessary  Powers 941 


TABLE    OF    CONTENTS.  XXXV 

Effect  of  his  Instructions g  942 

Acting  for  both  Parties 943 

Cannot  delegate  his  Powers 944 

Usually  must  act  in  the  Name  of  his  Principal 945 

Implied  Power  to  fix  Price 946 

May  sell  with  Warranty — When 947 

When  may  sell  on  Credit 948 

No  Authority  to  receive  Payment 949 

No  Authority  to  rescind  or  arbitrate 950 

IV.  Duties  and  Liabilitiks  to  Principal. 

Reasonable  Skill  and  Diligence  required ,  951 

Fidelity  to  his  Principal 952 

Same  Subject — Acting  for  both  Parties 953 

Duty  to  obey  Instructions 954 

Duty  to  keep  and  render  Accounts  and  pay  Proceeds 955 

V.  Duties  ajid  Liabilities  to  Third  Persons. 

Not  liable  when  Principal  disclosed 956 

Liable  when  Principal  concealed 957 

Liable  when  he  expressly  charges  himself 958 

Liable  when  he  acts  without  Authority 959 

Liability  for  Money  received 960 

WheL  guilty  of  Conversion 961 

VI.  Rights  of  Brokers  against  Principal. 

1.  Right  to  Compensation. 

Entitled  to  Compensation 962 

How  Amount  determined 963 

Broker  must  show  Employment 964 

Broker  must  have  performed  Undertaking 965 

Same  Subject — Real  Estate  Brokers 966 

Same  Subject — Not  defeated — how 967 

Same  Subject — Revocation  of  Authority 968 

Employment  of  two  or  more  Brokers 909 

Broker  to  effect  Loan 970 

Broker  to  effect  Exchange 971 

Cannot  have  Commissions  from  both  Parties 973 

How  in  case  of  mere  Middleman 973 

No  Compensation  when  Undertaking  illegal 974 

How  affected  by  Misconduct 975 

How  when  not  licensed 976 

S.  Right  to  Reimbursement. 

Entitled  to  Reimbursement 977 

How  when  Undertaking  not  performed 978 

S.  Right  to  a  Lien. 

No  general  Lien 979 

Liens  in  special  Cases — Insurance  Brokers 980 

No  Lien  except  for  Debt  due  from  Principal 981 


XXXVl  TABLT5    OF    CONTKNT8 

VII.  Rights  op  Bkokers  against  Third  Persons. 

In  general,  no  Rightof  Action  on  Contracts §  982 

When  he  may  sue 983 

VIII.  Rights  op  Principal  against  Third  Persons. 
Same  as  in  the  other  Cases  of  Agency 984 

IX.  Rights  of  Third  Persons  against  Principal. 

Same  as  in  other  Cases  of  Agency 985 

No  Set-off  of  Broker's  Debts 986 


CHAPTER  IV.— OF  FACTORS. 

1.    Definitions  and  Distinctions. 

Factors  and  Commission  Merchants  defined §  986a 

2.     How  Appointed. 

Same  as  other  Agents 987 

3.    Implied  Powers  of  Factors. 

In  general -  988 

How  affected  by  Usage 989 

To  seU  on  Credit 990 

To  sell  in  his  own  Name 991 

To  warrant  Quality 992 

To  receive  Payment 993 

To  pledge 994 

To  pledge— Under  Factor's  Acts 995 

To  pay  his  own  Debts 996 

To  barter  or  exchange 997 

To  delegate  his  Authority 998 

To  compromise  the  Debt 999 

To  submit  to  Arbitration 1000 

To  rescind  Sale 1001 

To  extend  Time  of  Payment 1002 

To  receive  anything  but  Money  in  Payment 1003 

To  make  negotiable  Paper. 1004 

To  insure  Property 1005 

4.    Duties  and  Liabilities  to  Principal. 

To  use  reasonable  Care  and  Prudence 1006 

To  act  in  good  Faith 1007 

To  obey  Instructions 1008 

Same  Subject — Instructions  to  sell 1009 

Same  Subject — Instructions  to  sell  for  Cash 1010 

Same  Subject — Instructions  to  insure 1011 

Duty  to  inform  Principal 1012 

Duty  to  sell  only  to  responsible  Purchaser 1013 


TABLE   OF   CONTENTS.  XXXvii 

Same  Subject — Del  Credere  Commissions §1014 

Factor's  Duty  to  care  for  Property ...  1015 

General  Duty  at  the  Sales 1016 

Duly  as  to  the  Place  of  Sale 1017 

Duty  as  to  Time  of  Sale 1018 

Duty  as  to  Price 1019 

Duty  in  collecting  Price 1020 

Factor's  Duty  in  keeping  Accounts 1021 

Not  obliged  to  keep  Funds  separate 1032 

Factor's  Duty  to  account  for  Money  and  Property 1023 

Duty  in  remitting  Money 1024 

When  Principal  may  sue  Factor 1025 

Liability  for  Acts  of  Subagents 1026 

5.  Rights  op  Factou  against  Principaij. 

a.  Commissiont. 

Factor  entitled  to  Compensation 1027 

When  Factor  may  have  Commissions  from  both  Parties. 1028 

b.  Reimbursement. 

Factor  entitled  to  Reimbursement 1029 

Same  Subject — Conclusiveness  of  Accounts 1030 

c.  Indemnity. 
Factor  entitled  to  Indemnity  against  Losses 1031 

d.    Lien. 

Factor  entitled  to  Lien 1033 

When  Lien  does  not  exist 1033 

Nature  of  the  Lien 1034 

When  Lien  attaches 1035 

Who  may  confer  Lien 1036 

How  Lien  may  be  lost 1037 

How  Lien  enforced 1038 

6.  Rights  op  Factor  against  Third  Persons. 
a.    In  Contract. 

May  sue  for  Price  of  Goods  sold 1039 

May  sue  on  Contracts  made  in  his  Name 1010 

b.  In  Tort. 

May  maintain  Trespass,  Replevin  or  Trover 1041 

7.  Rights  of  PRmciPAL  against  Third  Person. 
a.    In  Contract. 

May  sue  for  Price  of  Goods  sold 1043 

Same  Subject — What  Defenses  Principal  subject  to 1043 

Right  to  follow  Property 1044 

b.  In  Tort. 
For  Injuries  to  or  Conversions  of  the  Goods 1045 


XXXVlll  TABLK    OF    CONTENTS. 

8.  Rights  op  Third  Person  against  Principal. 

Same  as  in  other  Cases §  1046 

How  when  Principal  undisclosed 1047 

How  when  exclusive  Credit  given  to  the  Factor 1048 

9.  Rights  op  Third  Person  against  Factor. 

Same  as  in  other  Cases 1049 

When  liable  for  Conversion 1050 

How  in  case  of  foreign  Factor 1051 

10.  How  RKiiATiON  Terminated. 
Ajsin  other  Cases  of  Agency 1052 


TABLE    OF    CASES    CITED. 


■^'  SECTION 

Abbe  V.  Rood  (6  McLean,  108) 155 

Abbey  v.  Chase  (6  Cush.   56).   . .  446,  549,  550 

Abbott  V.  Dutton  (44  VC.  546) 810 

V.  May  (50  Ala.  97) 149 

V.  McKiuley  (2  Miles,  220) 63 

v.Rose(62  Me.  194) 879 

V.  Kawmut  Ins.  Co.  (3  Allen,  215) . .      432 

V.  Smith  (4  Ind.  452)     514,  515 

Abell  1!.  Howe  (43  Vt.  403) 721,  722 

Abernathy  v.  Black  (2  Cold.   814) 635 

Abrahams  v.  Weiller  (87  111.  179).  78,  287,  339 

Acheson  v.  Chase  (28  Minn.   211) 745 

Ackar  V.  Ledyard  (8  N.  Y.   65) 810 

Ackenburg  v.  McCool  (36  Ind.  473) ....    4tJ9 
Ackerlf  y  v.  Parkmson  (3  Maule  &  Sel. 

425) 580,  585,  586 

Ackert  u.  Barker  (131  Mass.  436) 845 

Ackley  v.  Kellogar  (8  Cow.   223) 475 

Adams  v.  Boies  (24  Iowa,  96) 363 

V.  Bourne  (9  Gray,  100) 288 

V.  (apron  (21  Md.   186) 1016 

V.  Chirk  (9  Cush.   215) 685 

v.  Cost(62Md.   264) 738 

V.  Flanagan  (36  Vt.  400) 393 

V.  Fort  Plain  Bank  (36  N.  Y.  255) ...    858 

v.  Freeman  (9  Johns.   118) 839 

V.  Hannibal.  &c.,  R.  R.  Co.  (74  Mo. 

5.'J3) 714,  715 

«.  Hopkins  (5  Johns..  252) 838 

r.  Humphreys  (54  Ga.   496) 714 

V.  Manufacturers'  &  Builders'  Ins. 

Co.  (17  Fed.  Rep.   630) 931 

V.  McMillan  (7  Port.  73) 893,  934 

V.  Nelli.s  (59  How.  Pr.  385) 888 

V.  Pittsburgh  Ins.  Co.  (95  Penn.  St. 

348)  281 

V.  Powers  (52  Miss.  828) 93,  95,  141 

V.  Robinson  (65  Ala.  53)    ..  474,  476,  48.S 

».  Roller  (35  Tex.  711) 813 

V.  Say  re  (70  Ala.  818) 468 

Adams  Express  Co.  v.  Schlessinger  (76 

Penn.  St    246)  279 

V.  Trego  (35  Md.  47). . . .  129,  133,  215,  307 
Adams  Mining  Co.  v.  Senter  (26   Mich. 

73) 67,  644 

Adamson  v.  Jarvis  (4  Bing.  66).  653,  915,  917 

V.  Hartman  (40  Ark.  58) 94 

Addison  v.  Gandassequi  (4  Taunt.  574) 

698,  699 

Adrian  v.  Lane  (13  S.  C,  153) 360 

Adriance  v.  Rutherford  (57  Mich.   170).  210, 

249,  616 

Adsit  V.  Brady  (4  Hill,  630) 590 

Advertiser  &  Tribune  Co.  v.  Detroit  (43 

Mich.   116) 719 

JEtna  Ins.  Co.  v.  Alton  City  Bank  (25 

111.    243) 514 

r.  Church  (21  Ohio  St.   492) 472 

V.  N.  W.  Iron  Co.  (21  Wis.  458) 129 

«.  Olmstead  (21  Mich.  246) 931 

V.  Reed  (33  Ohio  St.   28.3) 743 

V.  Sabine  (6  McLean,  393) 171 

Agricultural  Bankt).  Commercial  Bank 

(7  Smedes  &  M.    69;!) 514 

Ahern  v.  Baker  (34  Minn.   98). . .  202,  220,  969 
V.  Goodspeed  (72  N.  Y.   108) 348,  349, 


IV,  ! 


[xxxi 


.,    ,  .  BCCTION 

Alabama,  &c.,  R.  R.  Co.  v.  Hawk  (72 

Ala.    112) ns 

r.  Waller  (48  Ala.   459) 662 

Alba  V.  Moriarty  (36  La  Ann.  680) ....  212 
Albany  &  Rensselaer  Co.  v.  Luudberg 

(121  U.S.    451) ^    7.55 

Albany  Fire  Ins.  Co.  v.  Bay  (4  N.  Y.  9)  SSi 
Albertson  v.  Goldsby  (28  Ala.  711).  ...  820 
Albro  V.  Agawam  Canal  Co.  (6  Cush.75),    668 

Alderman  v.  People  (4   Mich.  414) 683 

Aldrich  v.  Equitable  Safety  Ins.  Co.  (1 

Wood&M.   276) 931 

V.  Jackson  (5   R.  I.  218) 9:>9 

V.Kinney  (4  Conn.  3b0) 810 

Alernauy  v.  Daly  (36  Cal.   90) 3;i0 

Alexander  v.  Alexander  (2  Ves.  644)  .    416 

u.  Burns  (6  La.  704) 386 

V.  Gib.son  (2  Camp.  555) 348,350 

V.  Hoffman  (5  W.  &  S.   382) 635 

V.  Jones  (64  Iowa,  207) 155,  164,  324 

V.    Not  th western    University     (57 

Ind.  466). , .    67,  644,  953,  972 

V.  Vane  (1  Mees.  &  Wels.  511 1 600 

u.  Walter  (8  Gill.  239)  821 

Alsrer  V.  Gardner  (54  N.  Y.  360) 745 

Allaire  v.  Ouland  (2  Johns.  Cas.  62)....  917 
Allaire  Works  v.  Guion  (10  Barb.  55)..,  64S 
Allard  v.  Lamirande  (29  Wis.  502)  .     . .  843 

844,  845 
Allegheny  Valley  R.  R.  v.  McLain  (91 

Penn.  St.  442) 751 

Allen  V.  Allen  (60  Mich.  635) 599 

V.  Bennett  (3  Taunt.  175) 211 

V.  Bryson  (67  Iowa,  591) 600 

V.  Gray  (11  Conn.  95i 685 

V.  Harrison  (30  Vt.  219) 882 

V.  Ham  (63  Me.  532)...       674 

w.  McCalla  (25  Iowa,  464) 722 

V.  McKibben  (5  Mich.  449) 637,648 

V.  Mfgguire  (15  Mass.  496) 679 

V.  Mei-chants'  Bank  (22  Wend.  215) 

511,  514 

V.  Richard  (83  Mo.  55) 459 

u.  Root  (39  Tex.  589) 882 

V.  Suydam  (20  Wend.  321)..  511,  514,  518 

V.  Steers  (39  La.  Ann.  586) 1040 

V.  St.  Louis  Bank  (120  U.  S.  20)..  994,  995 

w.  Willard  (57Penii.  St,  374) 666 

V.  Williams  (12  Pick.  297) 1035 

Allerton  Packing  Co.  v.  Egan  (86  Qa. 

2.53) 670 

Allis  V.  Billings  (6  Mete.  415) 50 

AUredu.  Bray  (41  Mo.  484) 127 

Alsop  V.  Carnes  (10  Johns.  396) 755 

Alston  V.  Hartman  (2  Ala.  699) 755 

Althorf  V.  Wolfe  (22  N.  Y.  355) 669 

Alton  u.  Giluianton  (2  N.  H.  520) 812 

Amann  V.  Lowell  (66  Cal.  306) 773 

Amazon  Ins.  Co.  v.  Wall  (31  Ohio  St. 

6.'8) 931 

Ambrose  v.  McDonald  (53  Cal.  28) 813 

Ames  V.  Drew  (31  N.  H.  475) 383 

V.  Palmer  (42  Me.  197) 673,  1034 

V.  Port  Huron  Log  Driving  Co.  (11 

Mich.   139) 68 

V.  St.  Paul,  &c.,  B.  R  Co.  (12  Minn. 

413) 769 

xl 


xl 


TABLE    OF    OASES    CITED. 


SECTION 

Ames  V.  Union  Ry  Co.  (117  Mass.  541 . ) . .    795 
Ames  Packing  &  Prov.  Co.  v.  Tucker 

^8Mo.  App.  95) 699 

American  Ci'ntral  lus.  Co.  v.  McCrea 

(8  Lea,  513) 931 

V.  McLanaihau  (11  Kana.  533) 281 

American  Express  Co.  v.  Hairo  (21  Ind. 

4) 514,517 

V.  Milk  (73  111.  224) 287 

w.  Patterson  (73  Ind.  430) 751 

American  Steamship  Co.   v.  Landreth 

102  Penn.  St.  131) 714 

American  Ins.  Co.  v.  Stratton  (59 Iowa, 

696) 410,441 

Amiable  Nancy  (3  Wheat,  546) 751 

Amison  v.  Ewing  (2  Cold.  3tJ7) 439 

Amite  City  v.  Clementz  (21  La.  Ann. 

27)  892 

Amor  V.  Fearon  (9  Ad.  &  E.  548) 215 

Amory  v.  Hamilton  (17  Mass.  103) 474 

Amy  V.  Supervisors  (11  Wall.  136)  590 

Ancher  v.  Bank  of  England  (2  Doug. 

637) 799 

Anderson  v.  Bruner  (112  Mass.  14) 3.50 

t).  Burnett  (5  How.  165)     743 

V.  Coonley  (21  Wend.  279) 6 

V.  Cox  tie  Neb.  10) 966 

V.  Estate  (42  Vt.  850)  48 

W.Gregg  (44  Miss.  170) «3,  87 

».  Harold  (10  Ohio,  399) 211 

V.  Morrison  (22  Minn.  274) 658 

».  Radcliffe  (E.  B.  &  E.  806) 845 

V.  Rome,  etc.,  R.  R.  Co.  (54  N.  Y. 

834) 714 

V.  Sanderson  (2  Stark.  204) 87 

i>.  State  (2  Geo.  370) 532 

V.  Wallace  (8  CI.  &  Fin.  26) 188 

V.  Watson  (3  C.  &  P.  214) 812 

Andrews  v.  .ffltna  L.  Ins.  Co.  (92  N.  Y. 

596) 154 

V.  Estes  (11  Me.  267) 436,  445,  448 

V.  Kneeland  (6  Cow.  354) 349,  947,  992 

V.  Morse  (12  Conn.  444) 869,  870 

Andrus  v.  Howard  (36  Vt.  248) 735,  736 

Angle  V.  Hanna  (22  111.  429) 635 

Anglo-California  n    Bank  v.  Mahoney 
Mining  Co.  (5  Sawy.  255;  s.  a, 

104  U.S.,  192) 121 

Anonymous(l  Sal k.  86) 8l0 

Ansley  v.  Jordan  (61  Ga.  482) 622 

Anthony  v.  Eastabrook  (1  Colo.  75) 714 

Antram  v.  Thorndell  (74  Penn.  St.  442).      87 

Antrobus  v.  Sherman  (65  Iowa,  230) 814 

Appleton  V.  Binks  (5  East.  147) 558 

Appleton  Bank  v.  McGilvray  (4  Gray, 

518) 185,  194,  197 

Applegate  v.  Moffltt  (60  Ind.  104) 348 

Archard  v.  Horn  or  (3  C.  &  P.  34;j) 022 

Archer  V.  McMechan  (21  Mo.  43) 1037 

Arden  v.  Patterson  (5  Johns.  Ch.  44). . .    845 
Ardesco  OU    Co.  v.   North  American, 

&c.,  Co.  (66  Penn.  St.  375) 535 

Area  v.  Milliken  (35  La.  Ann.  1 150) ... .    510 

1005,  1011,  1012 

Arlington  v.  Hinds  (1  D.  Chip.  431). ...     769 

V.  Peirce  (122  Mass.  270 118 

Armfleld  v.  Nash  (31  Miss.  361) 623 

Armil  v.  Chicago,  &c.,  R.  R.  Co.  (70 

Iowa,   130) 715 

Armitage  v  Widoe  (3S  Mich.  124) 51 

52.  53,  112,  114 
Armour  v.  Michigan  Cent.  R.  R.  Co.  (65 

N.  Y.  11)  717 

Armstrong  v.  Clarion  Co.  (62  Penn.  St. 

218) 654 

V.  Cooley  (5  Gilm.  512) 739 

In  re  (33  Fed.  Rep.  405) 519.  782 

«.  Smith  (3  Blackf.  2.51) 522,531 

V.  Stokes  (L.  R.  7  Q.  B.  603) 556 

fiQ"    fiQS 

Arnold  v.  Clifford  (2  Sumner,  238) '653 


SECnOM 

Arnold  r.  Nye  (23  Mich.  286) 809 

V.  Richmond  Iron  Works  (1  Gray, 

434) 50 

V.  Spurr  (130  Ma«8.  847) 63, 86 

V.  Stevenson  (2  Nev.  2.34) 229 

Arno  V.  Wayne  Circuit  Judge  (42  Mich. 

36:.') 810 

Amot  i>.  Coal  Co.  (68  N.  Y.  5.58)  35 

Arrington  v.  Sneed  (18  Tex.  135) 27 

Arrott  V.  Brown  (6  Whart.  Penn.  9). 638,  1012 

Ash  V.  Guie  (97  Penn    St.  493) 72 

V.  Putnam  (1  HiU,  N.  Y.  302) 678 

Ash  by  V.  White  (2Ld.  Raym.  U:i8) 590 

Ash-rv.  Sutton  (31  Kans.  286) 287 

Ashley  v.  Bird  (1  Mo.  640) 801,  318 

Ashmore  v.  Penn.  Steam  Towing  Co. 

(38N.  J.L.  IJ) 714 

Aslop  V.  Caines  (10  Johns.  396) 756 

Aspain  V.   Austin  (5  Ad.  &  Ell.,  N.  S. 

671) 211,622 

Aspinwall  v.  Torrance  (1  L.ins.  38;) 555 

Atcheson  v.  Malton  (43  N.  Y.  149) 22 

Atchison,  &c.,    R.  R.   Co.  v.   Holt  (29 

Kans.  149) 659 

Atkin  V.  Acton  (4  C.  &  P.  208) 214,  215 

Atkins  V.  Brown  (59  Me.  90) 432 

Atkins  V.  Johnson  (43  Vt.  78) 654 

Atkinson  v.  Burton  (4  Bush.  299)...  1006,  1018 

V.  Manks  (1  Cow.  691) 527 

Atkyns  v.  Ambler  (2  Esp.  493) 756,  1039 

Atlantic  Cotton  Factory  Co.  v.  Speer  (69 

Ga.l37) 658 

Atlantic  Bank  v.  Merchants  Bank  (10 

Gray,  .532) 729 

V.  Savery  (18  Hun,  41) 730 

Atlantic  Cotti  >n  Mills  v.  Indian  Orchard 

Mills  (17  North  E.  Rep.  49b).. 723,  729 
Atlantic  National  Bank  v.  Harris  (118 

Mass.  147) 723 

Atlantic.  &c..  Ry  Co.  v.  Dunn  (19  Ohio 

St.   962) 7?.] 

Atlee  V.  Bartholomew  (69  Wis.  43) IV:* 

V.  Fink  (75  Mo.  100) 37,  357,  797,  9b^ 

Attorney  General  v.  Alford  (4  De  G.  M. 

&  G.  843) 469 

V.  Chesterfield  (18  Beav.  596) 623 

V.  Siddon  (1  Cromp.  &  .!er.  220). ...  746 
Attrill  V.  Patterson  (58  Md.  226).  .204,  612.  966 
Attwood  V.  Munnings  (7  B.  &  C.  278)        306 

807,  393 
Atwater  v.  Lockwood  (39  Conn.  45) ....  964 
Auburn  Bank  v.  Leonard  (40  Barb.  119) 

441,  443 
Audenried  v.  Betteley  (8  Allen,  302)...    267 

Aultman  v.  Lee  (43  Iowa,  404) 375 

Aurora  Agl.  Soc.  v.  Paddock  (80  III.  26.3)    148 
Au  Sable  Boom  Co  v.  Sanborn  (36  Mich. 

358) 6S0 

Austinv  Austin  (45  Wis.  523) 63 

V.  Helms  (65  N.  C.  5t.O) 78 

V.  Latham  (19  La.  88) 812 

Austin's  Case  (5  Rawle.  191) 803 

AverilU'.  Longfellow  (66  Me.  238)..  ..869,  871 

V.  Williams  (4  Denio,  295) 386,  820 

V.  Williams  (1  Denio,  ,501) 8.39 

Avery  v.  Dougherty  (102  Ind.  443) 4-18 

V.  Halsey  (14  Pick.  Mass.  174) 6.53 

V.  Lauve  (1  La.  Ann.  4-57) 390 

Aycrigp  v.  New  York,  &c.,  R.  R.  Co. 

(.30  X.  J.  L.  460) 738 

Ayrault  v  Pacific  Bank  (47  N.  Y.  570). .    514 
Ayres  v.  Farmers'  &  Merchants'  Bank 

(79  Mo.  421) 619 

«.  Hull  (5  Kans.  419) 599 

B. 

Babbettr.  Young  (51  N.  Y.  23.S)....  441,  443 

Babcock  v.  Beman  (1 1  N.  Y.  200) 441 

V.  Granville  (44  Vt.  325) .588 

V.  Orbison  (25  Ind.  75) 495,  1007 


TABLE    OF    OASES  CITED. 


Xli 


SECTION 

Bach  V.  BaUard  (13  La.  Ann.  487) 812 

Bacheller  v.  Pinkham  (68  Me.  255) 733 

Backman  v.  Chaiiestowu  (i-i  N.  H.  125)    322 

Backus  V.  ByroQ  (4  Mich.  53.3) 845 

Bacon  v.  Johnson  (5t>  Mich,  l&i) 100,  148 

V.  Markley  (46  Ind.  116) 796 

V.  Sondlev  (3  Strobh.  542) 554 

Badger  V.  Gallaher  (113  111.  662) 843 

V.Williams  (1  D.  Chip.  137) 34 

Badgley  v.  Beale  (3  Watts.  263)  38 

Bailey  v.  Bensiey  (87  111.  556). . .  281,  485,  989 

V.  Chapman  (41  Mo.  536) 9b7 

V.  Cornell  (33  N.  W.  Rep.  50) 561 

».  Mayor  (3  Hill,  531) 590 

V.  Shaw  (24  N.  H.  297) 683 

V.  Troy  &  Boston  R.  R.  Co.  (57  Vt. 

252) 747,748 

V.  Wiggins  (5  Harr.  462) 580 

Bain  v.  Brown  (56  N.  Y.  285)  ....  68,  461,  470 

V.  Clark  i39  Mo.  252) 102;^ 

Baines  v.  Burbrid^e  (15  La.  Ann.  628)..    149 

Baird  u  Randall  (58  Mich.  175) 376 

V.Walker  (12  Barb.  298) 531,533 

Baker  v.  Allegheny,  &e.,  R.  R.  Co.  (95 

Penn.  St.  211) 658 

V.  Bliss  (39  N.  Y.  70) 724 

V.  Chambles  (4  Greene,  488) 440 

V.  Cook  (11  Mass.  23G) 869 

V.  Cotter  (-IS  Me.  236) 118 

V.  Drake  (66  N.  Y.  518) 936,  954,  1009 

V.  Freeman  (35  Me.  485) 93 

V.  Fuller  (21  Pick.  318) 1035,  1037 

V.  Hughes(2Col.  79) 670 

V.  Humphrey  (101  U.  S.  494)....  877,  878 

V.  Joseph  (16  Cal.  173) 533 

V.  Knickerbocker  L.  Ins.  Co.   (24 

Wis.  630) 622 

V.    Mechanics'   Fire    Ins.     Co.    (3 

Wend.  94) 438 

V.  New  York  National  Bank  (100  N. 

Y.  31) 536,  780,  781, 1044 

V.  State  (27  Ind.  485) 588,  5S9 

V.  Wasson  (53  Tex.  157) 573 

V.  Whiting  (3  Sumner,  476) 457,  459 

Balch  V.  Symes  (1  Turn.  &  R.  92). . .  862,  866 

Baldwin  v.  Bank  (1  Wall.  239) 439,  441 

442,  443,  755 
V.  Bank  of  Louisiana  (1  La.  Ann.  13) 

194,  514 

V.  Bennett  (4  Cal.  392) 854,856 

V.  Burrows  (47  N.  Y.  812) 1 29 

r.  Cole  (6  Mod.  212) 574 

V.  Leonard  (39  Vt.  260).  119,  554,  957, 1049 

V.  Merrill  (8  Humph.  132) 819 

V.  Potter  (4(i  Vt.  4U3) 522,  526,  1023 

Balfe  V.  We.st  (13  C.  B.  466) 478 

Ball  V.  Bank  of  Alabama  (8  Ala.  590) 

714,  813 

V.  Bender  (22  La.  Ann  493) ...    397 

V.  Clark  (28  Fed.  Rep.  179) 936 

V.  Dunsterville  (4  T.  R.  313) 96 

Ballard  v.  Burgptt  (40  N.  Y.  314). . . .  786,  788 

Balliuger  v.  Bourland  (87  111.  513)  745 

Ballou  V.  Talbot  (16  Mass.  4';l). .  432,  549,  550 
Ballston  Spa  Bank  v.  Marine  Bank  (16 

Wis.  120) 121 

Balsbaugh  v.  Frazer  (19  Penn.  St.  95) . . 

862,  865 

Baltimore  v.  Eschbach  (18  Md.  276) 224 

V.  Reynolds  (20  Md.  1)  546 

Baltimore  Coal  Tar  Co.  v.  Fletcher  (61 

Md.  288) 773 

Baltimore  Marine  Ins.  Co.  v.  Dalrym- 

ple  (25  Md.  UM2) 936 

Baltimore,  &c.,  R.  R.  Co.  v.  Christie  (5 

W.  Va.  325) 714 

V.  Wilkens  (44  Md.  11) 717 

Baltimore  &  Ohio  R.  R.  Co.  v.  Jameson 

(13  W.  Va.  833) 647 

Baltimore  Turnpike,  Case  of  (5  Binn. 

481) 78 


SECTION 

BaltzeU  v.  Nosier  (1  Iowa,  588 1 810 

Baltzen  v.  Nicolay  (53  N.  Y.  467). . . .  548,  549, 
650,  554,  957 
Bangor  Boom  Co.  v.  Whiting  (29  Me. 

123) 118 

Bangs  V.  Hornick  (30  Fed.  Rep.  97). . . .     487 

Bank  v.  Bininger  (26  N.  J.  Kq.  345) 527 

V.Butler  (41  Ohio  St.  519) 514 

V.  Campl)ell  (4  Hump.  396) 721 

V.  Cook  (38  Ohio  St.  442) 438 

V.  Earp  (4  Rawle,  386) 514 

V.  Macalester  (9  Penn.  St.  475) 535 

V.  McWillie  (4  McCord,  438) 393 

V.  Sturgis  (9  Bosw.  660) 1037 

V.  Wheeler  (21  Ind.  90) 439 

Bank  of  Augusta  v.  Conrey  (.28  Miss. 

607)     151 

Bank  of  Batavia  v.  New  York,  &c.,  R. 

R.  Co.  (106  N.  Y.  195) 717 

Bank  of  Beloit  v  Beale  (34  N.  Y.  473). .     151 
Bank  of  Deer  Lodge  v.   Hope  Mining 

Co.  (3  Montana,  146) 393 

Bank  of  Hamburg  v.  Johnson  (3  Rich. 

L.  42) 307,400 

V.  Wray  (4  Strob.  87) 542,  543,  545 

Bank  of  Louisville  v.   First  National 

Bank  (8  Baxt.  101) 514 

Bank  of  Lindsborg  v.  Ober  (31  Kans. 

599) 514 

Bank  of  Mobile  v.  Huggins  (3  Ala.,  N. 

S.206) 511 

V.  King  (9  Ala.  279) S93 

Bank  of  New  Milford  v.  Town  of  New 

Milfoi-d  (30  Conn.  93) 729 

V.  Bank  of  Ohio  (29  N.  Y.  619) 439 

Bank  of  New  York  v.  Bank  of  Ohio  (29 

N.  Y.  619) 4-39 

v.Vanderhorst  (32  N.  Y.  553)...  247,  251 
Bank  of  North  America  v.  Hooper  (5 

Gray,  567) 437,  442 

Bank  of  Odessa  v.  Jennings  (18  Mo. 

App   651) 769 

Bank  of  Orleans  v.  Smith  (3  Hill,  560).    514 
Bank  of  Owensboro  v.  Western  Bank 

(13  Bush,  526) 129,  171,  172,  509 

Bank  of  Pittsburg  v.  Neal  (22   How. 

107) 394 

V.  Whitehead  (10  Watts,  397). . .       .    730 
Bank  of  Rochester  v.  Jones  (4  N.  Y. 

497)  684,  10.35 

V.  Monteath  (1  Denio,  402) 442 

Bank  of  St.  Mary's  v.  Calder  (3  Strob. 

403) 171 

Bank  of  Trinidad  v.  First  Nat.  Bank  (4 

Dill.   290) 514 

Bank  of   United  States  v.  Beirue   (1 

Gratt.  234)  ...   393 

V.  Davis  (2  Hill,  451 ) 714,  721,  730 

V.  Dandridge  (12  Wheat.  04) 97 

Bank   of  Utica  v.  Magher  (18  Johns. 

342) 441 

V.  Mersereau  (3  Barb.  Ch.  529)....    8«o, 
881,  883 
Bank    of    Washington    v.    Pierson   (2 

Cranoh,  685) 

V  Triplett  (1  Pet.  25) 51.S 

Bankhead  v.  Owen  (60  Ala.  457) 929 

Banks  v.  Evans  (10  Smed.  &  M.  35) 

813,  K-20 

«.  Horn  ick  (30  Fed.  Rep.  97) 4^7 

V.  Judah  (8  Conn.  145) 461 

V.  Sharp  (6  J.  J.  Marsh.  180) 421 

Banner  Tobacco    Co.    v.   Jenison    (48 

Mich.  459)   .  4.5,  7().  .396 

Bannon  v.  Warfield  (42  Md.  22)  129,  509 

Barber  v.  Mechanics'  Ins.  Co.  (3  Wend. 

94) 441 

Bard  v.  Stewart  (3  T.  B.  Mon.  72) 1037 

V.  Yohn  (  26  Penn.  St.  482) 737,  738. 

740,  741 
Barger  v.  Miller  (4  Wash.  284) 333 


xlii 


TABLE    OF    CASES    CITED. 


SECTION 

Barhydt  v.  Clark  (12  Ul.  App.  646) 130 

Barhyte  v.  Shepherd  (35  N.  Y.  238). ...     588 

Baring  v.  Corne  (2  B.  &  Aid  13?)..  773,  774, 

°  945,  949,  986,  991 

V  Peirce  (5  Watts  &  Serg.  548) 288 

Barker  v.  Barker  (14  Wis.  131) 536 

V.  Bradley  (42  N.  Y.  322) 567 

V.  Hraham  .3  Wils.  368) 839 

V.  Diusmore  (72  Penn.  St.  427) 785 

V.   Knickerbocker  L.    Ins.  Co.  (24 

Wis.  630) 622 

V.    Mechanics'    Fire   Ins.    Co.     (3 

Wend.  94) 438 

V  St   Que.itiu(12M.  &W.  441)...868,  869 
V.  Troy,  &c.,  K.  R.  Co.  (27  Vt.  766).  648 

Barkiey  v.   Rensselaer,  &c.,  Co.  (71  N. 

Y.205) 224 

Barksdale  v.   Brown  (1  Nott.  &  McC. 

517)  195,  2S1,  485,  1010 

Barksloo  v.  Randall  (4  Blackf .  476). . . .      580 
Barlow  v.   Congregational  Society   (8 

Allen,  460) 435,  438,  7.5^3 

V.  Myers  (64  N.  Y.  43)  567 

Barnard  v.  Backliaus  (ii2  Wis.  597) 35 

V.  Campbell  (55  N.  Y.  456) 787,  788 

V.  Coffin  (141  Mass.  37) 197 

V.  Duncan  (38  Mo.  170) 924 

V  Jewett  (97  Mass.  87) 4.59 

V  Kellogg  (10  Wall.  383) 281,486 

w.  Kobbe  (54  N.  Y.  516)   102i 

u  Monnot  (34  Barb.  90) 966 

Barnes  v.  Ewing  (L.  R.  1  Exch.  320) . . ..    274 

v.  Harris(7Cush.576) 884 

V.  Insurance  Co.  (45  N.  H.  21) 756 

V.  McCUnton  (3  Pen.  &  Watts,  67).. 

718,  721 

V.  Taylor  (30  N.  J.  Eq.  467) 869 

V.  Trenton  Gas  L.  Co.  (27  N.  J.  Eq. 

33) 729 

V.  State  (19  Conn.  398) 746 

Harnett  v.  Warren  (82  Ala.  557) 1036 

Barney  v.  Newcomb  (9  Cush.  46) 755 

Barr  v.  Schroeder  (32  Cal.  6U9) 6 

204,  206,  207 

Barret  v.  Rhem  (6  Bush,  466) 186 

Barrett  v.  Third  Ave.  R.  R.  Co  (45  N.Y. 

628) 812 

Barretto  v.  Snowden  (5  Wend.  181) 74o 

Barrow  v.  Dyster  (13  Q.  B.  Uiv.  635). ...     957 

Barron  v.  Tucker  (53  Vt.  3-^8) 27 

Barrows  v.  Cushway  (37  Mich.  481). 233, 1015 

Barry  v.  Boninger  (46  Md.  59) 685 

■'                                               879,  980,  981 
w.  McGrade  (14  Minn.  163) 816 

V  Page  (10  G^ay,3'^8) 1043 

V.  Pike  (21  La.  Ann.  221) 555 

V.  Schmidt  (57  Wis.  17:i) 9.i3 

V.  St.  Louis  (17  Mo.  121) 747 

Bar-tow  V.  Gray  (3  Cireenl.  409) 211 

Barteau  v.  West  (23  Wis  416) 8.30 

Bartholomew  v.  Jacksnn  (20  Johns.  28)    600 

V  Leech  (7  Watts,  472) 468,  469 

Bartlett  v.  Board  of  Education  (59  111. 

371) 788 

V.  Farrington  (120  Mass.  284) 648 

V.  Hamilton  (46  Me.  433) 5i;9 

V.  Hawley  (120  Mass.  92) 442 

V  PickersgiU  (1  Eden,  515;  S.  o  1 

Cox,  15,  4  East.  577) 459 

V.  Raymond  (1.j9  Mass.  275) 554 

V.  Smith  (13  Fed.  Rep.  2fi3) 487 

V  Sparkman  (14  West.  Rep  725)...     481 

V  Tucker  (104  Mass.  336),432,  543,  545,  5.^0 
Barton  v.  Grav  (57  Mich.  622) 93 

V.  Moss  (32  111.  50) 468 

Bartonsliill  Coal  Co.  v.  Reid  (8  Macq. 

266) 658 

Barzlza  v.  Story  (39  Tex.  354) 457,  4.=.9 

Bash  V.  Hill  (62  111.  216) 967 

Bass  V.  Chicago  &  N.  W.  Ry.  Co.  (42 

Wi«.  6M) 711  715.  741,  751 


SKOTION 

Bass  Furnace  v.  Glasscock  (8  Ala.  462).    215 

Bassett  v.  Brown  (105  Mass.  551) 464 

V.  Fish  (12  Hun,  209) 590 

V.  Kinney  (24  Conn.  267)  532 

Bast  V.  Byrne  (51  Wis.  531) 639 

Basten  v.  Carew  (3  B.  &  C.  652) 580 

Basye  v.  Ambrose  (28  Bio.  39) 641 

Bates  u.  Ball  (72  111.  10,^) 49 

V.  Copeland  (4  Mc Arthur,  50). . .  .953,  972 

V.  Desenberg  (47  Mich.  643) 843 

V.  Pilling  (6  B.  &  C.  38) 839 

Batligate  v.  Haskin  (59  N.  Y.  5.35).. .  .854,  858 

Batiey  V.  Carswell  (2  Johns.  48) 393 

Batty  V.  Fout  (54  Ind.  482) 835 

Baudouine  V.  Grimes  (64  Iowa,  370)  ...  224 
Bauerman  v.  Kadenius  (7  T.  R.  659)  .  .  1039 
Baugh  V.  Kirkpatrick  (54  Penn.  84).. 915,  1037 
Baulec  V.  New  York,  &c.,  R.  R.  Co.  (59 

N.  Y.  3.56) 662 

Baumr.  Dubois  (43  Penn.  St.  260) 414 

Bayard  v.  McLane  (3  Harr.  212) 845 

Bayley  v.  Onondaga  Co.  Mut.  Ins.  Co. 

.      (6  Hill,  476) 769 

Bayliffe  v.  Butterworth  (1  Exch.  425), 

947,  989 

Bayliss  v.  Peterson  (15  Iowa  279) 440 

Baxter  v.  Duren  (29  Me.  iU) 929,  9.57,  983 

V.  Lamont  (60  HI.  237) ^73,  -zHS 

V.  Maxwell  (8  Atl.  Rep  581) fi3 

V  Roberts  (44  Cal.  187) 659 

Beach  v.  Brauch  (57  Ga.  362).  ..652,  977,  1031 

Beadles  r.  Hartmus  (7  Baxt.  476) 1009 

Beal  V.  McKiernan  (6  La  O.  S.  407)....    462 
V.  Polhemus  (34  N.  W.  Rep.  532) ....       24 

BeaU  V.  January  (62  Mo.  434) 169 

Beals  1'.  All^-n  (18  Johns.  363) 288 

V.  See  (10  Petin.  St.  56) 48 

Bean  v.  Howe  (Sh  Penn.  St.  360) 9 

V.  Pioneer  Min.  Co.  (66  Cal.  451).. 432,  441 

Beard  v.  Kirk  (11  N.  H.  397) 224 

Beardslee  v.  Richardson  (11  Wend.  25).    497 

Beardsley  v.  Davis  (52  Barb.  159) 510 

V.  Root  (11  Johns.  464) 820 

Beatie  v.  Butler  i21  Mo.  313) 243 

Beattie  v.   Lord  Ebury  (L.  R.  7  H.  L. 

102) 545 

V.  Lord  Ebury  (L.  R.  7  Ch.  Ap.  777)  5.53 
Beaulieu  v.  Portland  Co.  (48  Me.  295) ...  668 
Beaubien  v.  Poupard  (Harr.  Ch.  206). ..  257 
Keauchamp  v   Higgins  (20  3Io.  Ap.  514)    966 

Beaui  ain  v.  Scott  (-i  Camp.  388) 585 

Beavan  v.  McDonnell  (0  Exch.  309) 48 

Beck  V.  Bellamy  (93  N.  C.  129) 811 

Becker  v.  Torrance  (31  N.  Y.  643) 567 

Beckham  v.  Drake  (9  M.  &  W.  99)  45 

70,  430,  62;J 

V.  Nacke  (56  Mo.  546) 74b 

Beckwith  v.  Beimer  (6  C.  &  P.  681) 882 

V.  Butler  (1  Wash.  224) 48 

V.  Sibley  (11  Pick.  482) 682,  1029 

Bedell  v.  Janney  (4  Gilm.  193) 522 

530,  531,  532 

Beebe  v.  Knapp  (28  Mich.  53) 86 

f.  Mead  ,33  N.  Y.  587) 1033 

V.  Young  (14  Mich.  136) 86 

Beecher  v.  Bennett  (11  Barb.  380) 206 

W.Venn  (.35  Mich.  466) 396 

Beedman  v.  Goodell  (56  Iowa,  592) 151 

Beeson  v.  Green  Mountain  Co.  (57  Cal. 

20) 604,  6i55,  667,  668 

Beers  v.  Hendrickson  (45  N.  Y.  665). . . .     819 

Behm  v.  Amour  (58  Wis  1) 659,  670 

Behrens  v.  McKenzie  (23  Iowa,  343)...        48 

Beidman  v.  Goodell  (5fi  Iowa,  592) 151 

Belding  v.  Smvthe  <138  Mass.  5.30) 845 

Belknap  r.  R*  inhart  (2  Wend.  375) 426 

Bell  V.  Bell  (3  W.  Va.  1&3)  470 

V.  Caflferty  (21  Ind.  411) 929 

V.  Cunningham  (3  Pet.  69).. .129,  171,  506 

V.  Day  (32  N.  Y.  165) 745 

V.  Josselyn  (3  Gray.  311). 539,  571.  572,  574 


TABLE    OF    OASES    CITED. 


xliii 


SECTION 

Bell  V.  Kaiser  (50  Mo.  150) 9ti(j,  967 

V.  McConnell  (37  Ohio  St.  396) 66 

67,  588,  643,  953,  97a 

«.  Oflfutt  (10  Bush,  632) 279 

t>.  Palmer  (6  Cow.  128) 1008 

V.  Pierce(40  Barb.  51) 588 

V.  Western,  etc.,  R.  R.  Co.  (70  Ga. 

566) 656,  659,  670 

Bell's  Gap  R  R.  Co.  v.  Christy  (79  Penn. 

1st.  .A) 74,125 

Bellas  V.  Hays  (5  Serg.  &  R.  427) 137,  421 

Bbllefontaiue  Ry  Co.  v.  Hunter  (33  Ind. 

335) 715 

Bellemire   c  Bank  of  U.  S.  (4  Whart. 

105) 514 

Belton  Compress  Co.  v.  Belton  Brick 

MiifgCo.  (64  Tex.  337) 354 

Beller  v.  Block  (19  Ark.  560) 898 

Beltzhoover  v.  Blackstock  (3  Watts.  20i 

880,881 

Benden  v.  Manning  (2  N.  H.  289) 478,  41)8 

Benedict  v.  Smith  (10  Paigre  126) 813 

V.  State  (44  Ohio  St.  679) 8&4 

Benjamin  v.  Benjamin  (15  Conn.  347). .      62 
311,  396,  869 

V.  Coventry  (19  Wend.  353) 8^5 

V.  Dockham  (134  Mass.  418) . .  1,  82 

Bennett,  Ex  parte  (10  Vesey,  384) 463 

V.  Austin  (SI  N.  Y.  308) 457,    459 

V.  Bates  (94  N.  Y.  370) 567 

V.  Ci  y  Ins.  Co.  (115  Mass.  241) 931 

V.  Covington  (22  Fed.  Rop.  81b) 977 

V.  Davis  (6  Cow.  393)  51,  53 

V.  Ives  (30  Coun.  3;]9) 571 

V.  Judson  (21  N.  Y.  238) 775 

«.  Stout  (98  111  47)     63 

V.  Truebody  (66  Cal.  509) 747,    748 

V.  Whitney  (94  N.  Y.  8ii2) 590 

Bennecke  v.  Ins.  Co.  (105  U.  S.  355). . . .     129 
Bennint;hoff  v.  Agricultural  Ins.  Co. 

(93  N.  Y.  495)  311 

Benny  v.  Pegram  (18  Mo.  191)  994,  99S,  1044 

V.  Rodes  (18  Mo.  147) 994,  996,  1044 

Benoit  v.  Conway  (10  Allen  528) 20i 

Bonschoter  v.  Lalk  (38  N.  W.  Rep.  746)    320 
Bensley  V.  Moon  (7  111.  App.  415)        ...  li»07 

Beuson  v.  Carr  (73  Me.  76) 811,    812 

V.  Liggett  (78  Ind.  452) 151 

Bent  V.  Cobb  (9  Gray  397) 12,    893 

Bentleyv  Craven  (18  Beav.  76) 455 

w.  Doggett  (51  Wis.  244) 845 

Bercich  v.  Marye  (9  Nev.  312) 784 

Berea  Stone  Co.  v.  Kraft  (31  Ohio  St. 

287) 668 

Bergen  v.  Bennett  (1  Caine's  Cases  1). . 

241,  243,  1052 

Berger  v.  Duff  (4  Johns.  Ch.  369) 189 

Berghoff  v.  McDonald  (87  Ind.  5)9). . . . 

554,  571,     574 
Beringer  v.  Meaner  (85  Penn.  St.  223)  9,    276 

Berkeley  v.  Hardy  (5  B.  &.  C.  355) 758 

Berkey  v.  Judd  (22  Minn.  287) 428 

Ben.shouse  v.  Abbott  (16  Vroom.  531)    339 

344,    773 

Berry  v.  Barnes  (23  Ark.  41 1) 8ti3 

V.  Harnage  (39  Tex.  638) 306,    3)8 

V.  Skinner  (30  Md.  567) 243,     2.i6 

Bertholf  V.  Quinlan  (68  111.  297)  784,  786,     789 

Berthoud  v  Gordon  (6  La.  579) 510 

Bessant  v.  Harris  (63  N.  C.  542) 315,    484 

Betteley  v.  Stainsby  (12  O.  B.  499) 510 

Betts  V.  Dimon  (3  Conn.  107) 592 

V.  Gibbins  (2  Ad .  &  E.  57) 653 

Sevan  V.  Waters  (8  Car.  &  P.  520)  673, 

674,    882 

Beveridge  v.  Rawson  (51  El.  504) 127 

Beverly  v.  Stephens  (17  Ala.  701) 812 

Bevin  v.  Conn.  Mut.  L.  Ins.  Co.   (23 

Conn.  244) 129 

Bexwell  v.  Christie  (1  Cowp.  395) . .  .912,    906 
Beyer  v.  Bush  (50  Ala.  19) 765,  922,  1041 


8B0TIOJJ 

Beymer  v.  Bonsall  (79  Penn.  St.  298) 

554    6!*9  957 
Bickerton  v.  Burrell   ;5  M.  &  S.'  385) 

757,  760,  769 
Bickford  v.  First  Nat.  Bank  (42  111.  2^8) 

438,  554 
V.  Menier  (107  N.  Y.  390)  85,  274,  370, 

3!il,  399 

Biddle  v.  Bond  (6  Best.  &  Smith  224).. .  625 
Bierce  v.  Red  BluflC  Hotel  (31  Cal.  160) 

721,  722 
Bierbauer  v.  Wirth  (5  Fed.  Rep.  336,  10 

Biss.  60) 34 

Bigelow  V.  Benedict  (70  N.  Y.  202) 35 

V.  Heaton  (6  Hill  43) 678 

V.  Stearns  (19  Johns.  39) 585 

V.Walker  (24  Vt.  149) 302,  1019 

Bigler  V.  Toy  (68  Iowa  687) 819 

Billings  V.  Mason  (6  N.  Eng.  Rep.  791).  341 

V.  Morrow  (7  Cal.  171) 129,  318 

Billingsley  V.  Dawson  (27  Iowa,  210;....  221 

Bills  V.  Polk  (4  Lea,  41)4).... 851 

Bingham  i\  Supervisors  (6  Minn.  136)..  812 

Birkbeck  v.  Stafford  (14  Ab.  Pr.  285. . .  831 

Bird  V.  Breedlove  (24  Ga.  623) 32 

V.  Brown  (4  Exoheq.  786) .  .  114 

V.  Daggett  ( 97  Mas,-,.  494) 392 

V.  Daniel  (9  Ala.  302) 755 

Birdsall  V.  Clark  (73  N.  Y.  73) 190 

Birt  V.  Burt  (11  Ch.  D.  773) 781 

Bischoffsheim  v.  Baltzer  (20  Fed.  Rep. 

890) 936 

Bishop  V.  Ranney  (7  Atl.  Rep.  820) 6.32 

V.  Williamson  (11  Me.  495) 593,  594 

Bissell  V.  New  York,  &c.  R.  R.  Co.  (29 

Barb.  fll5) 497 

V.  Roden(34Mo  63) 574 

V.  Terry  (69  111.  1S4) 220 

Bixby  V.  Dunlap  (58  N.  H.  456) 793 

V.  Parsons  (49  Conn.  483).. 214,  216,  648,  6.50 

V.  Moor  (51  N.  H,  402) 38 

Bize  V.  Dickason  (1  T.  R  285) 1014 

Black  V.  Herscli  (18  Ind.  342) ,531,  833 

V.  Wilmington,  &c.  R.  R.  Co.  (92  N. 

C.  42)   717 

V.  Woodrow(39  Md.  194). 211 

Blackburn  v.  Sclioles  (2  Camp.  348). . . .  201 

V.  Vigors  (17  Q    B.  Div.  553) 725 

Blackman  v.  Chailcstown  (42  N.  H.  125)  322 

V.  Green  (24  Vt.  17)   . .    ia44 

V.  Wright  (27  Vt,  187) 718 

Black  River  Lumber  Co.  v.  Warner  (93 

Mo.374) 449 

Blackstone  v.  Buttermore  (58  Penn.  St. 

266) 204,20.5,  207 

Blackwell  v.    Ketcham    (53    Ind.    184, 

273,  288,  393,  394 

V.  Willard  (65  N.  C.  555) 269,  888 

Blaine  r.  Bourne  (11  R.  L  119)   782 

Blair  w  Childs  (10  Heisk    199)        1009 

Blaisdell  v.  Ahern  (144  Mass.  393).. 844,  845 

Blake  v.  Ferris  (5  N.  Y.  48) 7:K,  736 

V.  Maine  Cent.  R.  R.  Co.  (70  Me  00) 

6G2,  667,  668 

Blakely  v.  Bennecke  (59  Mo.  193) 5.57 

Blakeley  v.  Blakeley  (33  N,  J.  Eq.  508)..  50 

V.  Jacobson  (9  Bosw.  140) 520,  1014 

Blakeniore  v.   Heymau  (23  Fed.   Rep. 

648) 936 

Blanchard  v.  Ely  (21  Wend.  342) 649 

V.  KauU  (44  Cal.  440) 4:66 

V.Page  (8  Gray,  281)  755 

Bland  v  0'Hai,'an  (64  N.  C:  472) 394 

Blaiie  V.  Proudflt  (3  Call,  207) 288 

Blantin  r.  Whitaker  (11  Hump.  313)...  175 

Bleaden  V.  Hancock  (4  Car    &P.  156)..  673 

Bleecker  v.  Franklin  (2  E.  D.  Smith,  93)  7.56 

Blevins  V.  Pope  (7  Ala.  371) 101,  149,  750 

Blin  V.  Hay  (2  Tyler  304) 77 

Bliss  V.  Arnold  (8  Vt.  252)  195,  281,  485, 

990.  1010 


xliv 


TABLE    OF    OASES    CITED. 


BECTION 

Bliss  V.  Bliss  (7  Bosw.  339) 774,  957 

V.  Clark  (16  Gray,  60 859 

V.  Cutter  (19  Barb.  9) 380 

V.  Railroad  Co.  (24  Vt.  424) 47 

Blivea  v.  Hudson  River  B.  R.  Co.  (36  N. 

Y.  406) 625 

Blodgett  V.  BerUn  Mills  Co.  (52  N.  H. 

215) 617,  648 

Blodgett's  Estate  v.  Converse's  Estate 

US  Atl.  Rep.  109) 532 

Blood  V.  French  (9  Gray,  197) 904 

V.  Goodrioli  (9  Wend.  68) 93,  li7 

t).  Palmer  (11  Me.  414>  1044 

Bloom  V.  Burdick  (1  Hill,  130) 585 

Blooming  Grove,  &c.  Ins.  Co.  v.  Mc- 

Anerney  (103  Penn.  St.  835)     . .  931 

Blore  V.  Sutton  (3  Mer.  237) 893,  998 

Blot  V.  Boiceau  (3  N  Y.  78) . . .  .474,  1008,  1009 

Boardman  v.  Sill  (1  Camp.  410) 6S1 

V.  Spooner  (13  Allen  353) 917 

V.  Taylor  (66  Ga.  638) 726 

Board  of  Commissioners  V.  Younger 

(29Cal.  147) 811 

Board  of  Ju-stioes  v.  Fennimore  (1  N. 

J.L  242) 532 

Bodlne  v.  Exchange  Ins.  Co.  (51  N.  Y. 

123) 193,  931 

Bogart  V.  DeBussy  (6  Johns.  94) 419 

Bogel  V.  Teutonia  Bank  (28  La.  Ann. 

953)  164 

Bohart  v.  Oberne  (S6  Kan.  234)  129,  148, 

273,  :W3 

Boisblanc's  succession  (32  La.  Ann.  109)  7i4 

Boinest  v.  Leignez  (2  Rich.  464) 901,  9.'4 

Bolanv.  Williamson  (1  Brev.  181) 594 

Bollman  v.  Loomis  (41  Conn.  581)  29,  S\ 

643,  797.  973 
Bolton  V.  Corporation  of  Liverpool  (1 

My.  &K.88) 881 

Bonito  V.  Mosqaera  (2  Bosw.  401) . .  994,  995 

Bonner  v.  Marsli  (10  S.  &  M.  376) 1035 

Bonney  v.  Morrill  (57  Me.  £68) 813 

V.  Smith  (17  111.  531) 204,  205,  207 

Bonynge  v.  Field  (44  N.  Y.  Super.  Ct.581)  838 

Bond  V.  Bond  (7  Allen,  1) 48 

V.  Hopkins  (1  Sch.  &  Lef .  433) 459 

Bool  V.  Mix  (17  Wend.  120)  51 

Boone  v.  Clark  ^8  Cran<-h.  390) 77,  240 

Boormanu  Brown  (3  Q.  B.  511) 918 

Booth  V.  Wiley  (102  111.  84) 1.55,  287 

Boothby  v.  Scales  (27  Wis.  626) 348,  849 

Boothe  V.  State  (4  Tex.  App.  202)  715 

Borcherling  v.  Katz  (37  N.  J.  Fq.  150) 

696,  701,  702 

V.  Trefz  (40  N.  J.  Eq.  502) 745 

Borden  t).  Fitch  (15  Johns.  121) 585 

Borelu.  Rollins  (30  Cal.  408) 309 

Boren  v.  McGehee  (6  Port  432) 819 

Borough    of    Freeport    v.     Marks    (59 

Penn.  St.  253) 689 

Borries  v.  Imperial  Ottoman  Bank  (L. 

R.  9  C.  P.  38) 773 

Borrowscale  v.  Bosworth  (99  Mass.  878)  755 

756,  757 

Borup  V.  Nininger  (5  Minn.  523) 518 

Bosseau  v.  O'Brien  (4  Biss.  395>..     ..89,  139 

Bostick  V.  McLaren  (2  Brev.  275) 34 

Boston  Ice  Co.  v.  Potter  (123  Mass.  28),  760, 

770 

Boswell  V.  Laird  (8  Cal.  469 > 666,  747 

Bosworth  V.  Tallman  (66  Wis.  22). .  .869,  873 

Botsford.  V.  Burr  (2  Johns.  Ch.  405) ....  4.59 

Bott  V.  McCoy  (20  Ala.  578) 004 

Bougher  v.  Scobev  (23  Ind.  583) 531 

Boulden  v.  Heber(17  S.  &  R.  312) 814 

Boulton  V.  Jones  (2  H.  &  N.  564).. .  .760,  770 

Bourne  «.  Diggles  (2  Chit.  311) 8;« 

Boursot  V.  Savage  (L.  R.  2  Eq.  134).     . .  536 

Bowcher  r.  Noidstrom  (1  Taunt.  568)..  741 

Bowen  V.  Bowen  (74  Ind.  470) 607 

V.  Morris  (2  Taunt.  374) 181 


SECTION 

Bower  V.  Jones  (8  Bing.  65) 963 

V  Peate  (L.  R.  1  Q,  B.  Div  341). ...  747 
Bowers  v.  Evans  (3i>  N .  W.  Rep.  639)  536,  537 

V.  Johnson  (18  Miss.  169) 775 

Bowie  V.  Napier  (1  McCord,  1) 991 

Bowlbv  r.  Bell  (3  O.  B.  284) 977 

Bowling  V.  Arthur  (84  Miss.  41) 514 

Bowling  Green  Savings  Bank  v.  Todd 

(.52  N.  Y.  489) 8ii2.  863 

Bowman  v.  Cofifroth  (59  Penn.  St  19)..  m 

V  Hilton  (11  Ohio,  303) 67S 

V.  Omoer(53  Iowa,  640) 468 

Boyce  v.  Commerce  Bank  (22  Fed.  Rep. 

53) 994 

Boyd  V.  Boyd  (4  McCord.  246) 6:^5 

V.  Brinckin  (55  Cal.  427) 536 

V.  Chesapeake,  &c..  Canal  Co.  (17 

Md.   195)  730 

V.  Corbitt  (37  Mich.  52) 243,  387 

V.  Satterwhite  (10  S.  C.  45) 811 

V.  Vandeiibuig  (1  Barb.  Ch.  2731. ...  7^28 

V.  Vanderkemp  (1  Barb.  Ch.  273)...  728 

Boy  Ian  V.  Holt  (4.)  Miss.  277) 850 

Boyle  V.  Boyle  (lOH  N.  Y.  654) 873 

"  V.  Parker  (46  Vt.  343) 635 

Boyl.stonr.  Bain  (90  III.  283) 746 

Bozon  V.  Bolland  (4  Myl.  &  C.  354). ...  f-60 

867,  868 
Brabbits  v.  Chicago,  &c.,  R.  R.  (38  Wis. 

289) 1)6(1664,  665 

Bracken  v.  Miller  (4  Watts  and  Serg. 

110) 721 

Braekett  t;.  Norton  (4  Conn.  517). .  ..830,  8.^3 

r.  Sears  (15  Mich.  244) 851 

Braden  v.  Ward  (43  N.  J.  L.  518) 869 

V.  Louisiana  State  Ins.  Co.  (1  La. 

220) 931,  983 

Bradford  v.  Bush  (10  Ala.  386) 348,  8.50 

r-.  Menard  (35  Minn.  197) 966 

Bradlee  v.  Boston  Glass  Co.  (16  Pick. 

.S47) 432,  435 

Bradley's  Case  (7  Wall.  364) 803 

Bradley  v.  Chester  VaUey  R.  R.  Co.  (36 

■penn  St.  141) 843 

V.  Fisher  (13  WaU.  335) 

580,  581,  584,  586,  588 

V.  Richardson  (23  Vt.  720) 520 

V.  Salmon  Falls  Mufg  Co.  (30  N.  H. 

487) 641 

t».  Wheeler  (44  N.  Y.  500)  281,  486 

Braily  D.  Mayor  (1  Sandf.  569) 841 

V.  Mayor  (16  How  Pr.  4:^2), 112 

V.  Todd  (9  C.  B.  N.  S.  592)  6,  281,. ..  8.50 

Bradstreet  v.  Baker  (14  R.  L  546) 425 

u.  Everson  (72  Penn.  St.  134) 516 

Bradt  v.  Walton  (8  Johns.  298) 834 

Bragg  V.  Bradford  (33  Vt.  35) 635 

Brahn  v.  Jersey  City  Forge  Co.  (38  N. 

J.  L.  74) 167 

Brandao  v.  Barnett  (12  CI.  &  F.  787)  680,  933 

Brainard  v.  Elwood  (53  Iowa,  30) 869 

Brainerd  v.  Dunning  (30  N.  Y.  211) Vi7 

Brandt  w.  Klein  (17  Johns.  335) 882 

Branham  v.  San  Jos6  (34  Cal.  585)    565 

Brannan  v.  Strauss  (75  III.  234) 619,  1027 

Brantley  v    Southern  Life  Ins.  Co.  (.53 

Ala.  554)     390,391,  392 

Brass  t'.  Worth  (40  Barb.  648)  129 

Braswell  v.  American  L.  Ins.  Co.  (75  N. 

C.  8) 224.  228 

Brawn  v.  Chicago,  &c.   R.   R.   Co.   (53 

Iowa,   595) 659 

Brayr.  Giinn(53  Ga.  144) 155,  171 

w.  KettelKl  Allen.  80) 556,  1051 

V.  Morse  (41  Wis.  343)   67 

Breck  v.  Jones  (16  Tex.  461) 169 

Bredin  v.  Dubarry  (14  Serg.  &  R.  27)...  155 

B-ee  V.  Holliech  (2  Dongl.  6.54) 714 

Breed  v.  Central  City  Bank-  (6  Col.  235)    155 

V.  First  Nat.  B.Tnk  (4  Colo.  481) 893 

Breithaupt  v.  Thurmond  (3  Rich.  216).  149 


TABLE   OF    CASES  CITED. 


xlv 


SECTION 

Bremsen  v.   Engler  (49  N.  Y.  Super. 

Ct.  173) 3-2 

Brennan  v.  Wilson  (71  N.  Y.  502) 77 

Brent  v  Green  (6  Leigh.  16) 893 

V.  MiUer(8l  Ala.  309) 554 

Brewster  v.  Games  (103  N.  Y.  556).  .373,  379 

V.  Saul(8La.  296) 1042 

Bridge  v.  Wellington  (1  Mass.  219) 4'-:!l 

Bridges  v.  Garrett  (L.R.  5  C.P.  454)  375,  .-181 

Brldgtonw.  Bennett  (23  Me.  420) 810 

Brigham  v.  Gurney  (1  Micii.  848) 387 

V.  Hawley  (17  111.  38) 648 

V.  Myers  (51  Iowa,  397) 745 

r.  Peters  (1  Gray,  145) 100,  155 

Briggs  V.  Boston,  &c.  R.  R.  Co.  (6  Allen, 

246) 6a3 

V.  Briggs  (46  Vt.  571) 599 

t>.  Central  National  Bank  (89  N.  Y. 

182) 511 

r.  Georgia  (10  Vt.  68) 816,  814 

V.  Hodffdon  (78  Me.  514) 878 

V.  Munchon  (56  Mo.  467) 769 

V.  Partridge  (64  N.  Y.  3.57) 419,  421, 

430,  449,  696,  701,  702 

Bright  V.  Taylor  (4  Sneert.  159) 843 

Brind  v.  Hampshire  (1  Mees.  &  Wels. 

365) 567 

Brink  v.  Dolsen  (8  Barb.  837) 1025,  1024 

Brinkman  v.  Shaffer  (2:1  Kan.  528) 810 

Brinley  v.  Mann  (2  Cush.  337).  .417,  419,  422 

Brisban  v.  Boyd  (4  Paige.  N.  Y.  17). 510,  1005 
British  &  Amer.    Mtg  Co.  v.  Tibballs 

(63  Iowa,  46S)  375 

Britton  v.  Lorenz  (45  N.  Y.  51) 8S0,  882 

V.  Niceolls  (104  U.  S.  757) 514 

V.  Turner  (6  N.  H.  481)  636,  637,  633,  649 

Broadman  v.  Brown  (25  Iowa,  489) 843 

Brock  «.  Jones  (16  Tex.  461) 169 

V.  Rice  (27  Gratt.  812) 903 

Brockway  v.  Allen  (17  Wend.  40) . .  .441,  443 

V.  Mullin(46N.  J.  L.  448) 396 

Brocklebank  v.  Sugrhe  (5  0  &  P.  21). . .  84 
Broderick  v.  Detroit  Union  Depot  Co. 

(56  Mich.  261) 663 

Brook  r.  Hook  (L.  R.  6  Exch.  89) 116 

Brooke  v.  New  York,  &c.,  R.  R.  Co. 

(108  Penn.  St.  529) 717 

Brooklyn  v.  Breslin  (57  N.  Y.  591) 190 

V.  Railway  Co.  (47  N.  Y.  475) 507 

Brooks  V.  Fletcher  (56  Vt.  621) 150 

V.  Hanover  Bank  (26  Fed.  Rep.  301)  995 

V.  Jameson  (55  Mo.  505) 338,  714 

V.  Martin  (2  Wall.  70) 526 

V.  New  Durham  (.55  N.  H.  559) 812 

Brookshire  u.  Brookshire  (8  Ired.74)..  217 

Brookshire  v.  Voncannon  (6  Ired.  231).  204 

Bronson  v.  Coffl.'i  (118  Mass.  156) 822 

r.  Chappell  (12Wall.681) 84,  167 

Brothers  v.  Cartter  (52  Mo.  373) 664, 

665,  667,  668 

Brotherton  v.  Hatt  (2  Vern.  574) 721 

Broughton  «.  Silloway  (114  Mass.  71)..  897 

Brower  v.  Peabody  (13  N.  Y.  121) 677 

Brown  v.  Arrott  (6  Watts  &  S.  402) 474 

V.  Austin  (1  Mass.  208) 426 

t>.  Bankers,  &c.,  Tel  Co.  (30  Md.  39)  698 

V.  Beauchamp  (5  T.  B.  Mou.  413). ..  845 

t>.  Bigley  (.3  Tenn.  Ch.  618) 860, 

867,  869,  871,  872 

V.  Blydenburgh  (7  N.  Y.  141) 373 

V.  Central  Land  Co.  (42  Cal.  257)  ...  325 

«  Combs  (63  N.  Y.  598) 1032 

».  Dean  (123  Mass.  269) 539 

V.  Eaton  (21  Minn.  409) 89,  92,  93 

V.  Fitch  (33  N.  J.  L.  418) 635 

V.  Foster  (113  Mass.  136) 281 

V.  Hiatts  (15  Wall.  177) 269 

©.Hodgson  (4-Taunt.  189) 756 

«.  Howard  (14  Johns.  119)  480 

V.  Johnson  (12  Smedes  &  M.  398)... 

288.  27S 


BSOTION 

Brown  v.  Lent  (20  Vt.  533) 539 

V.  McGran  (14  Pet.  479) 1009 

V.  Minneapolis,  &c.,  Ry.  (31  Minn. 

553)   667 

».  Nichols  (42  N.  Y.  26) 810 

V.  Parker  (7  Allen,  339) 391,  443 

V.  I'ayson  (6  N.  H.  443) 882 

V.  Pforr  (38  Cal.  .550) 204,  207,  968 

V.  Purviance  (2  H.  &  G.  316) 740 

V.  Rundlett  (15  N.  H.  300) ...  558 

V.  Seunett  (68  (,'al.  225) 664,  665,  668 

V.  Smith  (24  Barb.  419) 588 

V.  Smith  (67  N.  C.  245) 352 

V.  Wiggin  (16  N.  H.  312) 1035 

V.  Winnisiinratt  Co.  (11  Allen,  8','6).  118 
V.  Winona,  &o.,  R.  R.  (27  Minn.  162) 

667,  668 
Browning  v.  Provincial  Ins.  Co.  (L.  R.  5 

P.  C.  App.  263) 696,  760,  931,  983 

Brownell  v.  Pacific  R.  R.   Co.  (47  Mo. 

239) 715 

Bruce  v.  Baxter  (7  Lea,  477) 835 

V.  Dickey  (116  111    527). . . .    849 

Brunson  v.  Martin  (17  Ark.  270).647,  648,  649 

Brush  V.  Miller  03  Barb.,  N.  Y.  481) 388 

Bryan  v.  Brazil  (52  Iowa,  350) 449 

V.  Reynolds  (5  Wis.  200) 22 

u.  Nix  (4M.  &W.791) 1035 

Bryant  v.  Burlinu'ton,  &c.,  R.  R.  Co.  (66 

Iowa,  30.5) 6.56 

V.  Hendricks  (5  Iowa,  256) 457 

V.  Moore  (26  Me.  84) ... .  129,  273,  279,  282, 

318,  36.5,  !t94 

V.  Rich  (106  Mass.  180) 734,740,  741 

Byrne  v.  Schwing  (6  B.  Mon.  201) 990 

Bryson  v.  Lucas  (84  N.  C.  680) 425,  558 

V.  Rayner  (25  Md.  424) 936 

V.  Wylie  (1  Bo.s.  &  Pul.  83) 1044 

Buck  V.  First  National  Bank  (87  Mich. 

293) 27 

Buckbee  v.  Brown  (21  Wend.  110) 753 

Buckland  v.  Conway  (16  Mass.  396) . . .  194, 

195,  812 

Buckley  v.  Hanrly  (2  Miles,  449) 681 

V.  Wells  (33  N.  Y.  518) 62 

Buckwalter  v.  Craig  (55  Mo.  71) 8.58 

Budd  V.  Zoller  (52  Mo.  238) 970 

Buell  V.  Chapin  (99  Mass.  594). ..475.  511,  512 
Buffalo  Catholic  Institute  v.  Bitter  (87 

N.  Y.  250) 421 

Buffalo,  &c.,  R.  R.  Co.  v.  Supervisors 

(48  N.  Y.  93) 588 

Buffum  V.  Chadwick  (8  Mass.  103) 755 

Bull  V.  Sigerson  (24  Mo.  53) 1037 

Bulkley  v.  Derby  Fishing  Co.  (2  Conn. 

252) 118 

Bnller  v.  Harrison  (2  Cowp.  568). . .  .561,  662 
Bulmer  v.  Gilman  (4  Man.  &  Qrang. 

1C8) 825 

Bunce  v.  Gallagher  (5  Blatch.  U.  S.  C. 

C.  481) 254,  257 

Bunker  u.  Bliles  (30  Me.  431) 456,  470 

Bunnell  v.  St.  Paul,  &c.,   R.  K.  Co.  (29 

Minn.  305) 662 

Bunney  v.  Poyntz  (4  B.  &  Ad.  568) 680 

Buuton  u.  Ly f  ord  (37  N.  H.  512) 808 

Biirbridge  v.  Sackler  (2  McAr.  407) ■s!6 

Burden  v.  Sheridan  (36  Iowa,  125) 4rj9 

Burgan  w.  Lyeil  (2  Mich.  102) 45 

Burgess  V.  Carpenter  (2  S.  0.  7) 795 

V.  Stevens  (76  Me.  559) 811 

Burk  V.  Webb  (32  Mich.  173)  765 

Burks  V.  Hubbard  (69  Ala.  379) 853,  8M 

Burley  v.  KItchell  (20  N.  J.  L,  305) 896 

Burling  v.  Gunther  (12  Daly,  6) 9i)6,  967 

Buriingame  v.  Brewster  (79  111.  515)  435,  438 

Burn  t).  Brown  (2  Stark,  N.  P.  272)  677 

Burnap  v.  Marsh  (13  111.  5:  5). . .  182,  &39,  855 

Burnet  v.  Hope  (9  Ont.  Rep.  10). . .  .240,  247 

Burnett  v.  Gustafson  (54  Iowa,  86) 536 

Burnham  v.  Ellis  (39  Me.  319) 714 


xlvi 


TABLE    OF    CASES    CITED. 


SECTION 

Burnham  v.  Grand  Trunk  Ry  Co.  (63 

Me.  298) 714 

V.  Holt  (14  N.  II.  367) 786 

V.  Stevens  (3.3  N.  H.  247) 580 

V.  Webster  (19  Me.  232) 4^9,     .511 

Burns  v.  Campb.-ll  (71  Ala.  271,  292).750,    751 

V.  Lynfle  (6  Allen,  305) 94 

V.  Pillsbuiy  (17  N.  H.  66) 1023 

Burnside  v  (irand  Trunk  Ry  Co.  (47  N. 

H.  5541 714 

Burr  V.  Beers  (24  N.  Y.  178)  567 

Burrell  v.  Bull  (SSanforrt  Ch,  15).... 457,    459 

V.  Jon.-s  (3  Bnrn.  &  Aid.  47) 447 

V.  Phillips  (1  Gall.  3h0)     1029,  1032 

Burrill  v.  Nahant  Bank  (2  Mete.  163). .      97, 

98,    121 

Burrough  v.  Skinner  (5  Burr,  2639) 566 

Buirusv.  Kyle  (56  Ga.  24) 1035 

Biirsot  V.  Savage  (L.  R.  2  Eq.  134) 536 

Burt  u.  Dutcher  (34  N.  Y.  493) 1009 

V.  Lathrop(52Mich.  106) 72 

r.  Palmer  (5  Esp.   145)     87 

Burtis  V.  Thompson  (42  N.  Y.  346) 624 

Burton  v.  Collin  (3  Mo.  315) 531 

V.  Fulton  (49  Penn.  St.  151) 588 

V.  Qoodspeed  (69  111.  238)  990 

V.  Great  Northern  Ry    Co.   (9  Ex- 

cheq.  "'07) 211 

V.  Lark-in  (36  Kans.  246) 567 

r.  Lyfordi37N   11.512) 810 

V.  Wilkinson  (18  Vt.  186) 525 

Bush,  ex  parte  7  Vin.  Ab  74) 864 

V.  Br.  inig  (113  Penn.  St.  310)  47,  49,        50 
V.  <  ole  1 28  N.  Y.  261  ... .  326,  895,  913,    925 

V.  Devine  (5  Harr.  375) 698 

V   Miller  (13  Barb.  481)     386 

V.  Steinman  (1  B.  &  P  404) 575 

Bushbv  V.  New  York,   &c.,  R.  R.   Co. 

'  (107N.  Y.374) 665 

Bushell's  Case  (1  Mod.  119)  580 

Bushuell  V.  Chicago,  &c.,  Ry  Co.  (69 

Iowa  620)     396 

Busteed  v.  Parsons  (.54  Ala.  393) 580 

Butcher  v.  Krauth  (14  Bush  713). ..  461,    465 

Butler  V.  Basing  i2  C.  &  P.  613) 737 

V.  Dorman  (68  Mo.  298) 338,  339,    340 

U  Hunter  (7  H.  &  N.  826) 748 

V.  Keniiard  (36  N.  W.  Rep.  579) 967 

V.  Kent  (19  Johns.  N.  Y.  223) 578 

V.  Knight  (L.  R  2  Exch.  109) 816 

V.  Maples  (9  Wall.  7b6i  279 

r.  Potter  (17  Johns.  145) 580,    582 

«.  Price  (110  Mass.  97)     61 

V.  Winona  Mill  Co.  (28  Minn.  205)...    604 
Butlers  V  Glass  (81  U.  C.  Q  B.  379)....     932 

Butterfleld  V.  Beal  (3  Ind.  20.3) 422 

u.  Stephens  (59  Iowa,  596) 1009 

Button  V.  Winslow  (53  Vt.  430) 554,    957 

Butts  V.  Collins  (13  Wend.  139) 756 

V.  Newton  (29  Wis.  632) 375 

V.  Phelps  (79  Mo.  302) 475 

Buzard  v.  Jolly  (6  S.  W.  Rep.  422) 289 

Buzzell  V.  Laconia  Mfg  Co.  (43  Me.  113) 

659,    670 

Byan  v.  Jackson  (4  Conn  291) 87 

Byarsv   Doores  (20  Mo.  284)       5.50 

Byerlee  r.  Mendall  (39  Iowa,  382) 637 

Byers  u.  Dan  ley  (27  Ark.  77) 1035 

Byington  v.  Simpson  (134  Mass.  169) —  449, 

696,    701 

Byne  v.  Hatcher  (75  Ga.  S89) 775 

By  rd  v.  Boyd  (4  McCord,  246) 635 

w.  Hughes  (84  111.  174)  29 

Byrne  v.  iSchwing  (6  B.  Mon.  199).. .  .485,    990 


Cady  V.  Shepherd  (11  Pick.  400) 188 

Caimes  v.  Bleecker  (12  Johns.  300).  171,  476 
Cairo,  &c.,  R.  R.  Co.  v.  Mahoney  (82  111. 

73) 121,  89« 


SECnOM 

Calais   Steamboat   Co.  v.  Van  Pelt  (2 

Black.  S72) 788 

Calder  v.  Dobell  (L.  R.  6  C.  P.  486)... 696  699 

V.  Halket  (3  Moo.  P.  C.  28) 587 

Caldicott  V.  Griff  (22  Eng.  L.  &  Eq.  527)      72 
Caldwell  V.  Dawson  (4  Mete.  121).. 281,    486 

V.  Dickson  (17  Mo.  575) 635 

V.  Waters  (13  Penn.  St.  79) 56 

V.  Harrison  (11  Ala.  755) 77,     78 

V.  Meshew  (44  Ark.  564) 769 

Caledonia  Ry  Co.  v.  Lockhart  (3  Macq. 

808) 188 

California,  The  (1  Sawyer,  603) 189 

California  Bank  v.  Western  Un.  Tel.  Co. 

(52  Cal.  280) 7-19 

Call  V.  Palmer  (116  U.  S.  98) 745 

Callaghan  v.  Hall  (1  Serg.  &  R.  241)....    469 

Callahan  v.  Shotwell  (60  Mo.  398) 640 

Callander  v.  Oelrichs  (5  Bing.  N.  C.  58).    510 

538,  908,  954,  1011,  1012 

Callender  v.  Golsan  (27  La.  Ann.  311). . .    893 

CalUs  V.  Bothamly  (17  Wk.  Rep.  87). . . .    211 

CaUo  V.  Brouncker  (4  C.  &  P.  518) 214 

215,    622 
Cambridge  Valley  Bank  v.  Delano  (48 

N.  Y.  326) 724 

Camden  Safe  Dep.  Co.  v.  Abbott  (44  N. 

J.  L.  2.57)   ...  307,     392 

Camerlin  v.  Palmer  Co.  (10  Allen,  5:39)  63 
Cameron  v.  Stratton  (14  111.  App.  270) . .     818 

V.  Lewis  (56  Miss.  76) 457,    459 

V.  Durkheim  (55  N.  Y.  425). 35 

Camp  V.  Gan  (6  Wend.  535) 838 

Campan  v.  Konan  (39  Mich.  362). ..  718,  721 
Campbell  v.  Atlantic,  &e.  R.  R.  Co.  (53 

Ga.  488) 670 

r.  Benjamin  (69  UL  244) 723 

V.  Boggs  (48  Penn.  St.  524) 533 

V.  City  of  Providence  (9  R.  I.  263)..     738 

V.  Cothran  (56  N.  Y.  279) 838 

V.  Dmke  (4  Ired.  Eq  94) 536 

V.  Goddard  (17  111.  App.  385) 849 

V.  Hastings  (29  Ark.  512) 403,    714 

V.  Hassel  (1  Stark.  2.33) 949 

V.  Hillman  (15  B.  Mon.  508) 571,     574 

V.  Hooper  (3  Smale  &  Q.  153) 48 

V.  Kuhn  (45  Mich.  513) 50 

V.  Portland  Sugar  Co.  (62  Me.  552), 

570,     571 

V.  Sherman  (49  Mich.  534)     288 

V.  Smith  (71  N.  Y  26) 394,    567 

V.  Somerville  (114  Mass.  334) 648 

V.  Reeves  (3  H^ad.  226) 197,    998 

Campbell's  Appeal  (29  Penn.  St.  401). . .  819 
Camp  Point  Mnfg  Co.  v.  Ballou  (71  111. 

417) 659,    670 

Canadian     Bank    of     Commerce     v. 

Coumbe  (47  Mich.  358) 168 

Cannee  v.  Spauton  (8  Scott's  N.  R.  714)  6S1 
Canney  v.  Railroad  Co  (63  Cal.  501)  ...  396 
Cannon  v.  Mitchell  (2  Desaus.  Eq.  321)..    895 

Cantine  v.  Phillips  (5  Harr.  428) 54 

Cantrell  v.  Colwell  (3  Head.  471) 62 

Capel  -I).  Thornton  (3  Car.  &  P.  352). ...  338 
Capen   v.    Pacific     Mut.    Ina.   Co.    (1 

Dutch.  67)   234,3-37 

Capron  v.  btrout  (11  Nev.  304) 634 

Carey  v.  Rochereau  (16  Fed.  Rep.  87), 

539,    570 
Carleton  v  Brickford  (13  Gray,  B91). ...    810 

V.  Haywood  (49  N.  H.  314) 61 

w.  I  ion  Co.  (99  Mass,  216) 658 

V.  Taylor  (50  Vt.   220) 585 

Carley  v.  Jenkins  (46  Vt.  721) 45,      70 

Carlisle  v.  Quattlebaum  (2  Bailey,  452).  674 
Carman  v.  Railroad  Co  (4  Ohio  St.  899)    748 

Carmichael  v.  Buck  (10  Rich.  332) 279 

282,  287,    288 
V.  W.  &  L.  Railway  Co.  (13  Ir.  L. 

R.  313) 761 

Carnahan  v.  Alderdice  (4  Harr.  99) 61 


TABLE    OF    CASES    CITED. 


xlvii 


SECTION 

Carnochan  v.  Gould  (1  Bailey,  L.  179).    1000 
Carpenter  v.  American  Ins.  Co.  (1  Story 

57) 714 

V.  Blake  (60  Barb.  488) 493 

V.  Farnsworth  (106  Mass.  561) 43(> 

V.  Holcomb(105  Mass.  2S1) 622 

w.Le  Count  (93  N.  Y.  562) 892 

V.  Le  Count  (22  Hun,  106) 907,  917 

V.  Rodgers  (61  Mich.  384) 50 

Carr  v.  Chartiers  Coal  Co.  (25  Fenn,  St. 

337) 646 

w.  Houser  (46  Ga.  477)  462 

Carrick  v.  Lamar  ( 1 16  U.  S.  423) 593 

Carrier  v.  Sears  (4  Allen,  337> 50 

Carrigan  v.  Lycoming  F.  Ins.  Co.  (53 

Vt.  418) 931 

Carroll   County  v.  Cheatham  (48  Mo. 

385) 817 

Carroll  v.  Welch  (26  Tex.  147) 619,  637 

Carrugi  v.  Atlantic  Fire  Ins.  Co.  (40  Ga. 

135) 931 

Carson  v.  Cummings  (69  Mo.  32.5) 161 

V.  Jersey  City  F.  Ins.  Co.  (14  Vroom, 

300) 931 

V  Smith  (5  Minn.  78) 324,  325 

Carter  v.  Bennett  (6  Fla.  214) 869,  870 

V.  Buchannon  (3  Ga.  513) 715 

V.  Burnham  (31  Ark.  212) 100,  396 

V.  Chaudron  (21  Ala.  72) 419 

V.  Davis  (8  Fla.  183) 869,  870 

V.  Dow  (16  Wis.  298) 580,582 

V.  Harrison  (5  Blackf.  138) 588 

V.  Howe    Hewing  Machine  Co.  (51 

Md.  290) 740,  741 

Cartmell  v.  AUard  (7  Bu?h.  482) 529 

Cartwright  v.  Greene  (47 Barb.  16).. 520,  1014 

V.  Wilmerding  (24  N.  Y.  521) 995 

Casco  Bank  v.  K-^ene  (53  Me.  103) 116 

Case  of  the  Marshalsea  (10  Coke,  68)  . .    585 

Case  V.  Carroll  (35  ti.  Y.  385)..  ..467,  468,  878 

V.  Jennings  (17  Tex.  661) 21.5 

V  Woolley  (6  Dana,  17) 686 

Casey  t».  March  (30  Tex.  180) 862,  869 

"^assarlay  v.  Seeley  (69  Iowa,  509)  966 

Cassel  V.  Thornton  (3  Car.  &  P.  352>. . . .    338 
Cassiday  v.  M.-Kenzie  (4  W.  &  S.  282), 

240,245 

Casson  v.  Field  (52  N.  Y.  196) 10U9 

Castellain  v.  Thompson  (13  G.  B.,  N.  S. 

105) 685 

Castle  V.  Noyes  (14  N.  Y.  332) 654,  917 

Castrique  v.  Buttigieg  ( 10  Moore,  P.  C. 

94) 443 

Caswell  V.  Cross  (120  Mass.  545) 747 

Catlin  V.  Bell  (4  Camp.  183) 481,  998 

V.  Smith  (24  Vt.  85) 195,  281,  485 

Cator  V.  Merrill  (16  La.  Ann.  137) 1037 

Catterall  v.  Hindle  (L.  R.  1  C.  P.  187))..    354 

375,  1043 

C^tterlin  v.  Somerville  (23  Ind.  482) 531 

Caudle  V.  Rice  (3  S.  E  Rep.  7) 8:3 

Caiilfleld  V.  Bullock  (18  B.  Mon.  494). ...    588 

Caulkins  v.  Fry  (35  Conn.  170) 49 

Cavanagh  v.  Dinsmore  (12  Hun,  465)  . .    738 

Cave  V  Cave  (16  Ch.  Div.  639) 723 

V.  McKenzie  (46  L.  J.  Ch.  Div.  564).    459 
Cavender  v.  Waddingham  (5  Mo.  Add. 

457) ..:.      49 

Caverly  v.  McOwen  (123  Mass.  574) 834 

V.  McOwen  (126  Mass.  222) 8.")2 

Cavin  v.  Gleason  (105  N.  Y.  2o6) 536,  537 

Cecil  Bank  v.  Farmers'  Bank  (22  Md. 

148) 783 

Cedar  Rapids,  &c.,  R.  R.  C3o.  v.  Stew- 
art (25  Iowa,  115) 77 

Central  Bank  v.  Hammett  (50  N.  Y.  158)    786 
Central  Branch  U.  P.  R.  R.  Co.  v.  Bat- 
man (22  Kan  639) 714 

Central   Penn.    Tel.  Co.  v.  Thompson 

(112  Penn.  St.  118) 106 

Central  E.  R.  Co.  v.  Pettus  (113  U.  S.  116)    869 

iv 


SECTION 

Chadsey  v.  McCreery  (27  HI.  253) 438 

Cbadwick  V.  Collins  (26  Penn.  St.  138). .     976 

r\  Knox  (31  N.  H.  234) 32,  600 

Chaff e  V.  Stubbs  (37  La.  Ann.  656) 273 

276,  289 

Challise  V.  McCrum  (22  Kans.  157) 929 

Challoner  v.  Bouck  (57  Wis.  652) 89 

Chamberlain  v.  Chandler  (3  Mason,  242)    740 

V.  Clayton  (56  Iowa,  331) 588 

Chamberlin  v.  Morgan  (68  Penn.  St.  168)    623 

Chambers  v.  Seay  (73  Ala.  372) 204 

205.  207,  616 

V.  Short  (79  Mo.  204) 339,  340 

u  Miller  (7  Watts,  63) 876 

C!hampii)  v.  King  (ti  Jar.  35) 840 

Champlin  u.  Parish  (11  Paige,  405) 89 

Chandler  v.  Beldeu  (18  Johns.  157) 680 

V.  Hogle  (58  III.  46)  495,  951,  10(i6 

V.  Mason  (2  Vt.   193) 34 

Chapel  V.  Raymond  (20  La.  Ann.  277). .    378 

Chapman  v.  Burt  (77  111.  337) 833 

V.  Cowles  (41  Ala.  103)  819 

V.  Durant  (10  Mass.  47) 699,  1048 

V.  Erie  Ry  Co.  (55  N.  Y.  579) 662 

V.  Glassell  (13  Ala.  50) 724 

V.  Lee  (47  Ala.  143) 114,  750 

V.  McCrea  (63  Ind.  360) 511 

V.  Spence  (22  Ala.  588) 827 

CSiarles  v.  Eschelmann  (5  C'ol.  107) 45,  70 

V.  Taylor  (L.  R.  3  C.  P.D.  49;i) 668 

Chase  - .  Heaney  (70  111.  268) 824,  H29 

v.  Pattberg  (12  Daly,  171) 432 

V.  Westmore  (5  Maule  &  Sel.  180)...     6ho 

Chase's  Case  (1  Bland.  Ch.  206) 885 

Chastain  v.  Bowman  (1  Hill.  270) 60 

V.  Smith  (30  Ga.  96), 457,  459 

Chat  field  V.  Simonson  (93  N.  Y.  209) ....    8.=;2 
Ched worth  v.  Edwards  (8  Ves.  Jr.  46)..    469 

Clieeseman  v.  Sturges  (9  Bosw.  255) 791 

Cheever  v.  Smith  (15  Johns.  276) 698 

V.  Mirrick  (2  N.  H.  376) 820 

Cheney  v.  Eberhardt  (8  Neb.  423) 745 

V.  White  (5  Neb  261) 745 

V.  Woodruff  (6  Neb.  151) 745 

Cherry  v.  Colonial  Bank  of  Australasia 

(L.  R  3P.  C.  24) 553 

Chesapeake,  &c.,  Co.  v.  County  Com- 
missioner (57  Md.  201) 507 

(Chester  Co.  v.  Barber  (97  Penn.  St.  463)    844 
thesterfleld  Mnfg  C!o.  v.  Dehon  (5  Pick 

7) 536,1044 

Chetwood  v.  Berrian  (39  N.  J.  Eq.  203).    790 

ChewD.  Bank  (14  Md.  318) 48 

Chicago  Citv  Ry  Co.   v.  McMahon  (103 

111.  485 734 

Chicago,   &c.,  Ry  Co.  v.    Bayfield  (37 

Mich.  205)... 21 4,  657,  663,  668,  670,  737 

V.  Clarke  (11  111.  App.  104) 670 

V.  Dickson  (C3  111.  151) 734,  740,  741 

V.  Doyle  (18  Kan.  58) 662 

t).  Doyle  (60  Miss  977) 667 

V.  Flexman  (103  111  546) 734.740,741 

V.  Fillmore  (57  111.  265.) 715 

w.  Fox  (41  111.  106)     100 

t>.  Harney  (28  Ind.  28) 662 

V.  James  (22  Wis.  194) 84 

w.  Keefe  (47  HI.   108).... 667 

t>.  Mav  (108  111.288) 668 

t»   Rulule(60Ill  534) 714,715 

V.  Scurr  (59  Miss.  456) 751 

Chickering  v.  Robinson  (3  Cush.  Mass. 

543) ,580.  688 

Child  V.  Dwight  (1  Dev.  &  Bat.  Eq.  171)    819 
V.   Eureka,  &c..  Works  (44    N.   H. 

854) 813 

r.  Hugg  (41  C3al.  519) 936 

C^iilders  v.  Bowen  (68  Ala.  221) 774 

Childs  V.  Bank  of  Missouri  (17  Mo.  213)    741 
(ihillicothe  Ferry,  &c.,  Co.  v.  Jameson 

(48111.281) 882 

Chinn  v.  Chinn  (22  La.  Ann.  599). .  .526,    5:i^ 


xlviii 


TABLE    OF    OASES    CITED. 


SECTION 

Chlpman  v.  Foster  (119  Mass.  189) 437 

Chirac  >:  Reinicker  (11  Wheat.  280)  .. .    882 
Chorpenningv.  Royce  (58  Penn.  St.  476)    714 

Choteau  v.  Allen  (70  Mo.  290) 121,  721 

Chouteau  v.  Goddins  (39  Mo.  229)..  ..119,  895 
Chouteaux  v.  Leech  ( 18  Perm.  St.  224) .     281 

Christians.  Smith  (30  Ga.  96) 459 

Christy  v.  Dou-lass  (Wright,  485) 862 

Christie  V  Siiwyer  (44  N.  H.  29S) 845 

Church  V.  Mansfield  (20  Conn.  284) 740 

V.  Sterling  (lb  Conn.  383).  118, 457,  459,  461 
Churchward  v.  The  Queen  (6  B,  &  S. 

807) 211 

V.  The  Queen  (L.  R.  &  Q.  B.  178)...    211 

Cilley  V.  Tenny  (31  Vt.  401) 647,  648 

Cincinnati,  &c.,R.R.  Co.  v.  Lee (37  Ohio 

Si.  479) 600 

Citizens'  Bank  v.  Grafflin  (31  J5Id.  507). 

281,  486 
Citizens'  Sa\  .  Bank  v.  HBrt(32  La.  Ann. 

23) 392  893 

Citizens'  Bank  v.  Howell  (8  Md.  530). ...    514 
Citizens'  National  Bank  v.  Culver  (51 

N.  H.  3-,>7) 876 

City  Bank  v.  Barrow  (5  App.  Cas.  654). .    786 

V.  Bateman  ( 7  Har.  &  J.  104) 714 

V.  Weiss  (67  Tex  333) 519 

City  of   Cleveland  v.   State    Bank  (16 

Ohio  St.  24fi) 352 

City  of  Decatur  u.Vermillion  (77 111.315),    646 
City  of  Detroit  v.  Jackson  (1  Doug.  106), 

'  118,  446 

City  of  Kansas  v.  Hannibal,  &c.,  R.  R. 

Co.  (77  Mo.  180) 422 

City  of  Pontine  v.  Carter  (82  Mich.  164)    589 
City  of   Providence  v.  Miller  (11  R.  L 

272) 419 

Caty  of  Richmond  v.  Long  (17  Gratt. 

375) 593 

Catv  of  St.  Pai'l  V.  Seitz  (8  Minn.  297).. 

747,    748 
Claflln  V.  Lenheim  (66  N.Y.  801). . .  .221,    228, 

230,    2:n 

«.  Ostrom  (54  N.  Y.  584) 567 

Clap  fl.  Day  (2  Greenl.  30.5) 755 

Clapp  w.  Hughes  (1  Phila.  382) 967 

Clark  V.  Courser  (29  N.  H.  170) 816 

V.  Cox  (32  Mich.  204) 62 

«.  Cushman  (5  Mass.  505) 892 

V  Des  Moines  19  Iowa,  199) 291 

V.  Dobbins  (52  Gn.  C56) 103.5 

«.  Foster  (8  Vt.  98>  650 

V  Fry  (8  Ohio  St.  .358) 747 

».  Gilbert  (28  N.  Y.  279) 635 

V.  Holdridge  (58  Barb.  61)  580 

«.  Jones  (16  Lea.  351) 653 

V  JKingsland  (1  S.  &  M.  248)  819 

V.  Lowell,  &c.,  R.  B.  Co.  (8  Gray, 

231) 677 

t>.  Marshall  (34  Mo.  429) 829 

»  Maur.an  (3  Paige,  373) 1035 

t>.  Miller  54  N.  Y  528) 590 

t>.  Moody  (17  I\Iass.  145) 528,  628,    630, 

531,  53i  533,  1022.  1084,  1025 

r.  Morse  (16  La.  575) 812 

r.  Perrier  (2  Freeman,  48) 171 

V.  Randall  (9  Wis.  135).  .388,  811,  816,    frW 

V  Roberts  (26  Mich.  506). .  .475,  521,    1013 

V.  School  District  (29  Vt.  217) 635 

V.  Smith  (88  III.  298) 839,    340 

V.  Tipping  (9  Beav,  284) 1007 

V.  Van  North  wick  (1  Pick.  343). .  195,  281, 

485,    1010 

V.  Wa.shlngton  (12  Wheat.  54) 190 

Clarke  v.  Holmes  (7  H.  &  N.  937)  656,  659,  661 

V.  Lyon  Co.  (8  Nev.  188) 112 

V.  May  (2  Gray,  410).  ...580,  685,  586,    687 

r.  Shee  (Cowp.  200) 781 

«,  Spence  (4  A.  &  E.  448) 634 

V.  Van  Reimsdyk  (9  Cranch,  158) . . 

168,    179 


BEOTIOM 

Classman  v,  Lacoste  (28  Eng.  L.  &  Eq. 

140) 621 

Clay  V.  Spratt  (7  Bush.  334) 155,  171 

Claypool  V.  Gish  (9  N.  E.  Rep.  382) 581 

Clayton  v.  Martin  (31  Ark.  217) 395 

V.  Merrett  (52  Miss.  35.3) 240,  245 

Clayton's  Case  (1  Mer.  5;2) 781 

Clealand  v. Walker  (11  Ala.  1058)  167, 417,  698 

Cleave  V.  Jones  (7  Exch.  421) 881 

Clegg  V.  Baumberger  (110  Ind.  536). . .  .  888 
V.  Townshend  (16  L.  T.   R.,  N.  S. 

180) 977 

Cleghom  v.  New  York  Cent.  R.  R.  Co. 

(56  N.  Y.  44) 741 

Clendenon  v.   Pancoast  (75  Penn.   St. 

213) 966 

Clerks'  Savings  Bank  v.  Thomas  (2  Mo. 

App.  367) 730 

Cleveland  v.  Newsome  (45  Mich.  62). . ..  715 

V.  Spier  (15  C.  B..  N.  S.  398) 669 

V.  Williams  (29  Tex.  204). ..  .240,  245  246 
aeveland,  &c.,  R.  R.  Co.  v.  Mara  (28 

OhioSt.  185) 715 

V.  Pattison  (15  Ind.  70) 619 

Clifford  V.  Burton  (1  Bing.  199) 87 

V.  Turrill  (2  De  G.  &  Sim.  1) 862 

Clippenger  v.  Hepbaugh  (5  W.  &  S.  815) 

Clough  V.  Whitcomb  (105  Mass.  482)  . . .'  341 

Clute  V.  Barron  (2  Mich.  194) 461,  463 

Coat  u.  Coat  (63  111.  73)    468 

Cobb  r.  Cowdery  (40  Vt.  25) 34 

V.  Hall  (49Iovva,366) 87 

V.  Johnson  (2  Sneed.  73) 714 

V.  Judge  (43  Mich.  289) 806 

V.  Knapp  (71  N.  Y.  349). . . .  554,  658, 

696,  699,  957,  1049 

V.  Prell  (15  Fed.  Rep.  77) ,.  85 

Coburn  v.  Omega  Lodge  (71  Iowa,  581).  438 

V.  Paine  (36  Me.  105) 100 

Cochran  r.  Chit  wood  (59  El.  53). . . .  150,  151 

Cocke  V.  Campbell  (13  Ala.  286) 348 

V.  Dickens  (4  Yerg.  29) 764,  755 

Coakcrof  t  v.  Muller  (71  N.  Y.  367) 928 

Cockerell  v.  Acompte  (2  Com.  B.  4401. .  72 

Coekran  v.  Trlam  (2  M.  &  S.  301). ..  6.<)3,  993 

Cockrill  V.  Kirkpatrick  (9  Mo.  688).. 530,  531 

Coddington  v.  Bay  (20  Johns.  637) 519 

Cod  wise  v.  Hacker  (1  Cal.  526) 148 

Cody  V.  Raymond  (1  Col.  272) 635 

Coe  V.  Smith  (4  Ind.  79)  631,  637 

V.  Wager  (42  Mich.  49) 599,  600 

Cofian  V.  Landis  (46  Penn.  St.  426) 204, 

210,  2.33,  616 

V.  LinxweUer  (34  Minn.  820) 964 

Coffman  v.  Hampton  (2  Watts  &  Serg. 

377) 875 

V.  Harrison  (24  Mo.  524) 650 

Cohen  v.  Teller  (12  Norris,  123) 116 

Colburn  v.  Phillips  (13  Gray,  64) . . .  755,  756 

Cole  u.  Bennett  (6  Price,  15) 871 

V.  Northwestern  Bank  (L.  R.  10  C. 

P.  354) 788 

V.  Pennoyer  (14  111.  158) 51 

Coleman  V.  Billings  (89X11.  183) 845 

V.  First  National  Bank  (53  N.  Y.  893) 

801,698,  701 

V.  Meade  (18  Bush.  358) 966 

V.  Stark  (1  Oregon.  115) 130 

Coles  V.  Trecothick  (9  Ves.  Jr.  234) 899 

CoUen  t>.  Wright  (8  E.  &  B.  647). . . .  645, 

649,  553 

Collender  v.  Dinsmore  (55  N.  Y.  800). . .  968 

Colley  V.  Merrill  (6  Greenl.  50) 682 

(jollier  V.  Palliam  (13  Lea,  114) a35 

V.  Steinhart  (51  Cal.  118) 668 

CoUlns  V.  Allen  (12  Wend.  856) 550 

V.  Buck  (63  Me.  459) 676,    678 

V.  Buckeye  State  Ins.  Co.  (17  Ohio 

St  215) 448 

V.  Fowler  (8  Mo.  App.  688) 953,    973 


TABLE    OF    CASES    CITED. 


XllX 


„   „,  „  SECTION 

OoIIins  V.  Hopkins  (7  Iowa,  568) 250 

V.  Insurance  Co.  (i:  Ohio  St.  215)...  441 
V.  New  England  Iron  Co.  (115  Mass. 

„23) 641 

r.  Rainey  (43  Ark.  531) 468 

V.  St.  Paul,  &c.,  R.  R.  (30  Minn.  31).  667 

V.  Suau  (7  Robt.  623) rj7 

t>.  Sullivan  (13.5  Mass  461) 459  460 

V.  Tillou  (26  Conn.  368) 525 

t».  WagB;oner  (Breese,  26) 127 

Colorado,  &c.,  R.  R  v.  Ogden  (3  CoL 

499)  667 

Colt  V.  Noble  (5  Mass.  167). ...  511 

Col  ton  V.  Richards  (123  Mass.  481)...!."  667 
Columbia  Bridge  Co.  v.  Geisse  (33  N.  J. 

L.  39) g4^  J03 

Columbia  Ins.  Co.  v.  Cooper  (50  Pen n! 

St.  331) 93J 

Columbus,  &c.,  R.  R.  Co.  v.  Arnold"  (31 

Ind.  174) :..  668 

9.  Troesch  (68  lU.  543) 660.  662.  667 

V.  Webb  (12  Ohio  St.  475). ...  667 

Colvln  V.  Holbrook  (2N.  Y.  126)  , . .  531  539 
Colweil  V.  Keystone  Iron  Co.  (36  Mich. 

53)    67 

V.  Simpson  (16  Ves.  Jr.  275) 866 

Combe's  Case  (9  Co.  76) 419  993 

Combs  V.  Hannibal  Ins.  Co.  43  Mo'  148)'  931 

».  Scott  (12  Allen,  493) 128,129;  148 

Commercial  Bank  v.  Cunningham  (24 

Pick.  270) 7*^  730 

V.  French  (21  Pick.  488) ... .  .■.'.■■  753*  755 

t>.  Jones  (18  Tex.  811)  127,  129  197 

V.  Kortright  (22  Wend.  848).  .94,  279'  788 

t>.  Martin  (1  La.  Ann.  344). . . .  194 

r.  Norton  (1  Hill,  501) 188  193 

V.  Union  Bank  (11  N.  Y.  212)            '  514 

«.  Warren  (15  N.  Y.  577) . .              ""  116 
Commercial  Nat.  Bank  v.  Heilbroniier 

(108  N.  Y.  439) 1044 

Commercial  Ins.  Co.  v.  Ives  (58  HI  402)  931 

»•  Spankneble(52m.  53)...  931 
Commissioners  v.  Chambers  (75  Ind 

_  409) •      Qiyf 

Commissioners,  &c.    v.    Reynolds   (44 

.Ind.  559) \  463 

Commissioners  v.  Rose  (1  Desau,  461)  819 
Commonwealth  v.   Boynton  (2  Allen' 

160) '  745 

V.  Commissionprs  (9  Watts,  470)  77 

V.  Cooper  (130  Mass.  288) .  950 

«.  Eastman  (1  Cnsh.  189) '  163 

V.  Emmons  (98  Mass.  6) * "  746 

V.  Farren  (9  Allen,  489) '.'."  745 

V.  Finnegan  (124  Mass.  324) "  745 

t».  Hackett  (2  Allen,  138)        ....  715 

t>.  Harnden(]9Plek.  482)....       "'"  8')9 
V.  Holbrook  (10  Allen,  200). . .         '746 

r.  Holmes  (119  Mass.  195) 84.'  746 

».  McPike  (3  Cush.  181).. 715 

V.  Nichols  (10  Mete.  259) '"  74R 

V.  Park  (1  Gray,  553).... 745 

u  Putnam  (4  Grav,  16)    '  746 

V.  Raymond  (97  Mass   667) 746 

V.  Smith  (103  Mass.  444). . . .  74A 

V.  Waitedl  Alien,  264)....          ""■  745 

»•  Wentworth  (118  Mass.  441)....  !'  746 

Condit  V.  Baldwin  (21  N.  Y.  219)  74'i 

Condon  v.  Pearce  (43  Md.  83) . . . ! 449 

Coney  v.  Sanders  (28  Ga.  511)  ... .".'  ■8'4'4'  245 
Congar  v.  Chicago,  &c.  Ry  Co.  (24  Wis' 

157) ,721'  725 

Conger  v.  Fincher  (28  III.  347)                 '  648 

Congregation  v.  Peres  (2  Cold.  6m  619.  622 

Conkey  v.  Bond  (36  N.  Y.  427) . . . . . .  .68  462 

Conley  v.  Portland  (78  Me.  217)  668 
Connecticut  Mut.  L.  Ins.  Co.  v  'Buite 

(45  Mich.  113) 84 

Conners  v.  Hennessey  (112  Mass.  96). . .  748 

V.  Holland  (113  Mass.  .50) ZiS 

Connett  v.  Chicago  (114  EL  233).  ...165,  813 


Connop  V.  Challls  (2  Exch.  484)         ""^'^ 
Connor  V.  Chicago,  &c.  R.  R.  (59' Bio'. 

285) 667 

Connor  v.  Parker  (114  Mass.  331)  ' ' '  '185'     993 
Conover  v  Van  Mater  (18  N.  J.  Eq.  481)    745 
Conrey  v.  Braudegee  (2  La.  Ann.  132) 
o  ^  ,  234,    236 

Conroy  V.  Vulcan  Iron  Works  (6.;  Mo. 

^       ..35) ...660,'    661 

Considerant  v.  Brisbane  (23  N.  Y.  389) 

Continental  L.   Ins.   Co.  v.   Perrv'(65 

Iowa,  709) 468 

Continental  Nat.  Bank  v.  Weems  '(6's' 

W.  Rep.  802) ^      ■     53« 

Couturier  v.  Hastie  (8  Exch.  4'o')      1014 

Co.iverse  V.  Bluiurich  (14  Mich   lo'g')  714 

Conway  County  v.  Little  Rock,  &c  Rv 

Co.  (39  Ark.  50) '..... '818,    820 

Conway  v.  Lewis  (13  Atl.  Rep.  826). . . ..  1016 
Conwell  V.  Voorhees  (13  Ohio.  52;?)  594 

Cony ers  v.  Masrath  (4  McCord.  392) '."    555 
Cook  V.  Berlin  Woolen  Mills  Co    (43 

Wis.  433) •.463.    466 

r.  Bradley  (7  Conn.  57) 600 

v.  Fiske  (12  Gray,  491) ggg     967 

w.  Gray  (133  Mass.  106) *      '    448 

V.  Hopper  (23  Mich.  511).... i'.i 839 

V.  Kroemeke  (4  Daly,  268)  *    966 

V.  Sanford  (3  Dana,  237)....     430 

y.  Tullis  (18  Wall.  332)  111,  126,  'I'eS,    167 
Cooke  V.  Thrt-sher  (51  Conn.  105). .  .862     863 
W.Welch  (9  Allen.  350)   ....  '954 

Cooley  V.  Betts  (24  Wend.  203)531,  1023', 

„,„  1024!  1025 

«.  O'Connor  (12  Wall,  391)...  73 

V.  Perrine  (12  Vroom,  322) m    350 

V.  Willard  (34  111.  68). . .....  274.  872^    373 

Coolldge  V.  Smith  (129  Mass.  554).  .  63 

Coombs  V.  New  Bedford  Cordage  Co' 

(102  Mass.  572) 658!     6.59 

Cooney  v  Wade  (4  Humph.  444)  375 

Coons  V.  Rpnick  (11  Tex.  134)....       '45       70 

Cooper  V.  Borrall  (10  Penn.  St.  491)  *    '    934 

v.  Rankin  (5  Binn.  613). ..  "      93 

V.  Schwartz  (40  Wis.  54).. '.'.".".'.' 155'     163 

Cope  V.  Dodd  (1  Harris  33) '    963 

Copeland   v.    Mercantile   Ins.    Co     (6 

Pick.  198) 67,217,219,    461 

Copenrath  v.  Kienby  (83  Ind.  18). ...  48 

Copley  V.  Grover  &  Baker  Sewing  Ma- 
chine Co.  (2  Woods,  494). .  741 
Coppin  V.  Craig  (2  Marsh,  501). . . .         "756 

V.  Craig  (7  Taunt.  243 1 898     912 

V.  Walker  (7  Taunt.  237) 769*    897 

Coquillard  v.  French  (19  Ind.  274).. 806     818 

V.  Suydam  (8  Blackf.  24) '    .f>3t 

Corbett  v.  Underwood  (83  111.  824) 938 

Corbin  v.  Adams  16  Cush.  93) .'    714 

V.  American  Mills  (27  Conn.  274)'.!!    747 
Corbitt  V.  Salem  Gas  Co.  (6  Oreg.  405)"    211 
Corby  V.  Hill  (4  C.  B..  N.  S.  556)   . . . . . .';    658 

Corcoran  v.  Holbrook  (59  N.   Y    517) 

«     ,.  ^  .        -„      659,664,665,     668 

Corlies  V.  Cummmg  (6  Cow.  181)  n,  757, 

993!  1029 

V.  Widdifleld  (6  Cow.  181) 1021 

Coming  v.  Calvert  1 2  Hilt.  56). ....       "    9,0 

t>.  Southland  (3  Hill.  5.52) ""     irq 

V.  Strong  (1  Ind.  329) "'     3-5 

Corser  v.  Paul  (41  N.  H.  24) "iVe!    151 

Corzierw.  Carr(ll  Tex.  876)  414 

Cosgrove  v.  Ogden  (49  N.  T.  255)  279', 

Cossitt  V.  Hobbs  (56  111.  233) '  894 

Cost  V.  Qenette  (1  Port.  212) "  819 

Costigan  V.  Railroad  Co.  (2  Den.  609)  623 

Coster  V.  Mayor  (43  N.  Y.  411) "  557 

Cothay  v.  Fennell  (10  B.  &  C.  671). ! ! '  *  698 

Cothren  v.  Connaughton  (24  Wis.  124)'  803 

Cottom  ».  Holliday  (59  m,  175) ^  461 


TABLE    OF    CASES    CITED. 


SECTION 

Coudert  v.  Flagg  (31  N.  J.  Eq.  394) . . ...     745 
Couchlin  v.  N>-w  York  Ceutral  R.  R. 

Co.  (71  N.  Y.  443) 846,869,     871 

Coughtry  v.  Globe  Woolen  Co.  (66  NY. 

124) 666,    748 

County  Commissioners  v.  Duckett  (20 

Md.  469) 589 

Courcler  v.  Ritter  (4  Wash.  549)  171, 

1008,  1009 

Coursin's  Appeal  (79  Penn.  St.  220) 469 

Courtn'-y  v.  Baker  (2  Jones  &  Sp.  629).    715 

V.  McQavock  (i-i  Wis.  622) Wl 

Couturier  v.  Hastie  (8  Exch.  40) 1014 

Covellw.  Hill(6N.  Y.  374) 9.^5 

Coveney  v.  Tannehill  (1  HiU,  33)  880,  881,    &i2 
Coventry  v.   Great  Eastern  R.  R.  Co. 

11  Q.  B.  Div.  776)   717 

V.  Barton  (17  Johns.  142) 654 

Covey  ti.  t^ampbell  (52  Ind.  157) 849 

Covin  V.  HiU  (4  Den.  323) 788,     786 

Covington  v.  Newberger  (6  S.  W.  Rep. 

205)   346 

Cowell  V.  Simpson  (16  Ves.  Jr.  280) 680 

Coweta    Falls  Mnfg  Co.  v.  Rogers  (19 

Ga.  416) 287,    714 

Cowles  V.  Richmond,  &c.  B.  Co.  (84  N. 

C.  309)   664,  665,    667 

Cowley  V.  Smith  (46  N.  J.  L.  380)  743 

Coxe  V.  Devine  (5  Harr.  375) 6!tS 

Cox  V.  Adams  (1  N.&McC.  284) 635 

r.  Hoffman  (4  D.  &  B.  180) 62 

V.  Leech  (1  Com.  B.  617) 8-.i7 

V.  Life  Ins.  Co.  (113  111.  382) 745 

V.  Livingston  (2  \V.  &  S.  103)  515,  826,    8  J2 
V.  New  York,  &c.  R.  R.  Co.  (63  N. 

Y.414) 813 

V.  Prentice  (3  M.  &  S.  348) 562 

w.  Sullivan  (7  Ga.  144)  . .   .8,21,826,    8S5 

Cozzens  v.  wnitney  (8  R.  I.  79) 872 

Cracker  v.  Chicago  &  N.  W.  Ky  Co.  (36 

Wis.  657)   741 

Craft  V.  McConoughy  (79  111.  346) 35 

Craig  V.  Chambers  1 17  Ohio  St.  253) ....    498 

il  Ely  (5  Stew.  &  P.  .354) 813,    819 

V.  Burnett  (32  Ala.  728) 680,    5»5 

u  Godfroy  (1  Cal.  415) 8!t3 

V.  Mansfield  (1  Ves.  379) 878 

Craighead  v.  Peterson  (72  N.Y.  279)  129, 

^  308.  311,  890.    393 

Crandall  v.  State  (28  Ohio  St.  479) 892 

Crane  v.  Bedwell  (25  Miss.  507) 1^ 

t).  Burntrager  (1  Ind.  165)  527 

V.  OndHrdonk(67  Barb.  4T) 671 

Crans  v.  Hunter  (28  N,  Y.  389) 130 

Cravens  V.  Gillilan  (63  Mo.  28) 116 

Crawford  v.  Barkley  (18  Ala.  270) 130 

V.  Dean  (6  Blackf.  181) 755 

V.  Fisher  (1  Hare,  436) 527 

V.  Reders  (54  Miss.  700) 63,      87 

V.  Russell  (62  Barb.  92) 36 

«.  Spencer  (92  Mo.  498) 35 

Crawshayu  Homfray  (4  B.  &  Aid.  50).    680 

t).  Thornton  (2  Mv.  &  Cr.  1> 527 

Cray  v.  Mansfield  (1  Ves.  Sr.  379) . . .  .^_. .    878 
Craycraf t  v.  Selvage  (10  Bush.  696)  273,    290 

Creager  v.  Link  (7  Md.  259) 204 

Crenshaw  v.  Harrison  (8  Ala.  342) 820 

Cresswell  v.  Byron  (14  Vesey.  Jr.  272). .    854 
Crew  V.  St.  Louis,  &c.  Ry  (20  Fed.  Rep. 

87) 667 

Cribben  v.  Maxwell  (34  Kans.  8) 48 

Crichfleld  V.  Porter  (3  Ohio,  518) 810 

Crispin  v.  Babbitt  (81  N.  Y.  516) 667 

Critchett  v.  American  Ins.  Co.  (53  Iowa, 

404) 931 

Crltchfleld  v.  Porter  (3  Ohio,  518) bio 

Croaker   v.  Chicago,  &c.  By  Co.  (35 

Wis.  657) 740,  741,    751 

Croft  V.  Alison  (4  B.  &  Aid.  590). .  .737,    741 
Crooker  ».  Hutchinson  (2  D.  Chip.  117) 

820,    836 


PKonoN 
Crooker  v.  Hutchinson  (1  Vt.  73). .  .495,    496 

Crookham  v.  State  (5  W.  Va.  510) 715 

Croom  u.  Shaw  (1  Fla  211) 348 

Crosby  v.  Berger  (11  Paige,  377). . .  882,    880 
V.  Hill(39  Ohio  St.  100)     ...339,773,    986 

Cross  u.  Riggins  (.50  Mo.  3-35) 883 

Crothers  v.  Leo  (29  Ala.  337) 5:34 

Croutw.  DeWolf  (1  R.  L  393) 116 

Grower.  Ballard  (2  Bro.  (,  h.  117) 469 

Crowley  r.  LeDue  (21  Minn.  412) 869 

Croy  V.  Busenbark  (72  In.l.  48)   84,      96 

Crozier  u.  Carrdl  Tex.  376) 414 

Crumbacker  v.  Tucker  (9  Ark.  365). . . .     683 

Cruzan  v.  Smith  (41  Ind.  2-!8) 273,    279 

CubbHrly  V.  Scott  (98  111.  .38) 63 

Cuff  V.  Newark,  &c.  R.  R.  Co.  (35  N.  J. 

L.  17) 747 

Culver  w.  Ashley  (10  Pick.  301) 161 

V.  Benedict  (13  Gray,  7) 519 

CuUen  V.  O'Hara  (4  Mich.  132) 765 

Cumberland    Coal    Co.    v.     Hoffman 

Steam  Coal  Co.  (30  Barb.  1.59) . .    463 
Cumberland,  &c.  CoaA  Co.  v.  Scally  (27 

Md.  5S9) 667 

Cumberland  Coal  Co.  v.  Sherman  (30 

Barb.  553) 461 

Cumberland,  &c.  R.  R.  Co.  v.  State  (44 

Md.  283) 664,  665,     667 

CJumming  v.  Roebuck  (1  H.)lt,  172) 932 

Cummings  v.  Collins  (61  SIo.  S.'O) 6<p3 

Gumming  v.  Forester  (1  M.  &  S.  497) ...    756 

Cummings  v.  Gann  (52  Penn.  St.  4'<4)..     674 

V.  Harsabraugh  (14  La.  Ann.  711)..    721 

w.  Powell  (8  Tex.  80) 55 

V.  Sargent  (9  Mete.  172) •3!J6 

Cummins  V.  M -Lain  (2  Ark.  412) .'•31 

V.  McLain  (2  Pike,  402) 515 

u  Heald  (24  Kan.  600)   515 

CJumpston  v.  Lambert  (18  Ohio,  81) 654 

Cunningham  v.  Bucklia  (8  Cow.   178) 

580,    581 

V.  Cochran  (18  Ala.  479) 714 

V.  International  B.  B.  Co.  (51  Tex. 

503) 748 

w.  Jones  (.37  Kans.  477) 878 

V.  Morrell  (10  Johns  203) 634 

V.  National  Bank  (71  (ia  400) 35 

V.  Railway  Co.  (17  Fed.  Bep.  882). . .    670 

Cupples  V.  Whelan  (61  Mo.  583) 83,    224 

Curran  v.  Merchant's  Mnfg   C3o.    (130 

Mass.  374)  687 

Currier  v.  Railroad  Co.  (37  N.  H.  223)  878,    874 

Curry  V   Currvni4Pfnn   St.—') 599 

1!.  Hale  (15  W,  Va.  869) 129 

Curtis  r.  Blair  (26  Miss.  309) 89 

«.  Gibney(59Md.  131)  102.J 

V.  Leavitt  (15  N.  Y.  190) 189 

V.  United  States  (2  Nott.  &  Hun. 

144) 291.     546 

V.  WiUiamson  (L.  B.  10  Q    B.   57) 

554,699,    700 

Curtsv.  CJisna  (7  Biss.  260) 46<! 

Cushing  V.  Rice  (46  Me.  803) 769 

Cushm.n  V.  Glover  (17  111.  600) 219 

V.  Loker  (2  Mass.  106) 148 

Custer  V.  Tompkins  County  Bank  (9 

Penn.  St.  27) 730 

Cutter  V.  Powell  f6  T.  R  320)  6.35 

Cuyier  v.  Merrifleld  (5  Hun.  559) .393 

Cyphert  v.  McLune  (22  Penn.  St.  195) . .    810 


Dagnall  v.  Wigley  (11  East.  43) 74."! 

Dalby  v.  Stearns  (132  Mass.  230) 1009 

Dale  V.  Pierce  (85  Penn,  St.  474) 9 

«.  Hamilton  (5  Hare  Ch.  369) 459 

Dallas  V.  HoUingsworth  (3  Ind.  587). ..    651 

Dally  t).  Young  (3111.  App.  39) 741 

Dalton  V.  Goddard  (104  Mass.  497) 1027 


TABLE    OF   OASES   CITED. 


u 


SECTION 

Daly  V.  Commonwealth  (75   Penn.  St. 

831) 893 

V.  Butchers'  &  Drovers'  Bank  (S6 

Mo.  94) 514 

Damon  v.  Granby  (a  Pick.  345) 77 

Dana  v.  Turlay  (33  N.  VV.  Rep.  860) ....    330 
Danby  u.  Coutts  (L.  R.,  29  Ch.  Div.  500) 

2)0,     306 

Dancer  v.  Hastings  (4  Bing.  2) 758,    763 

Dane  v.  Kirkwall  (8  Car.  &  P.  679) 48 

Danforth  v  Pratt  (43  Me.  50) 680,    684 

Daniel  v.  Adams  (Arab.  495) 902 

V.  S  svearengen  (6  S.  C.  297) 793,    795 

Daniels  v.  Barney  (22  Ind.  207) 5-26 

w.  Newton  (114  Mass  530) 624 

Danley  v.  Crawl  (28  Ark.  95) 814 

D' Aqnila  v.  Lambert  (1  Amb.  399 687 

Danube  &  Black  Sea  Co.  v.  Xenos  (13 

Com.  Bench,  N.  S.  835) 624 

Darlins  v.  Lewis  (11  H^isk.  125) 269 

V.  Stanwood  (14  Allen.  504) 195,    197 

V.  St.  Paul  (19  Minn.  389) 190 

V.  Yonkers  (37  Ohio  St.  487) 384 

Darlington    v.     Chamberlin     (20    HI. 

App.  443) 1037 

V.  Chamberlin  (120  III.  585) 1043 

Darr  v.  Darr  (.59  Iowa  81) 240 

Darrow  v.  Haiiow  (21  Wis.  302)  9R7 

V.  St.  G(^org-e  (8  Col .  592)) 204,    207 

Darstu.  Gale  (83  111.  136) 121 

Daubigny  v.  Duval  (5  T.  R.  606).  ...675.  1034 

Daune  v.  Dubois  (7  Wright,  2o0) 414 

Davenport  v.  Riley  (2  McCord,  198) 554 

V.  Peoria,  etc.,  Ins.  Co.  (17  Iowa, 

276) 279 

V  Sleight  (2  Dev  &  Bat.  381) 894 

Daver  v.  Harrell  (58  Ga.  572) 882 

Davey  w.  .Tones  (13  Vrooin,  28 51 1 

Da  vies  v.  Lyon  (36  Mmn.  427) 367 

V.  Waters  (9  M.  &  W.  611) 882 

DavidsoQV.  Gun<olly  (1  Mich.  388) 765 

V.  Lanier  (4  Wall..  U.  S.  456) 394 

v.  Porter  (57  111.  3n0)  276 

w.  Stanley  (2  M.  &  G.  721)  391 

Davis  t>.  Arledge  (3  Hill,  L.  170) 654 

V.  Ayres  (9  Ala.  292) 622 

r.  Barger  (57  Ired.  54)  480 

V.  Bradley  (38  Vt.  118) 1035 

».  Burnett  (4  Jones,  L.  71) 348 

w.  Cadwell  (2  Rob.  271) 38 

V.  Central  Vermont  R.  R.   (55  Vt. 

84) 667 

V.  Detroit,  &a.  R.  R.  Co.  (20  Mich. 

105) 662 

V.  England  (141  Mass.  587). 438,  441,    442 

V.  Garrett  (6  Bing.  716) 908,    954 

«.  Hall  (90  Mo  659) 812 

t>.  Hamlin  (108111.  39) 458,     952 

V.  Haj'den  (y  Mass  54) 421 

V.  Henderson  (25  Mi.ss.  549) 4-37,    443 

V.  Kobe  (38  Minn.  214)..  ..989,  1009,  1015 

V.  Kmm  (12  Mo.  App.  279) 148 

V.  Lane  (ION.  H.  156) ]ii, 

126,  354,  255,  256,    257 

«.  Lee  (20  La.  Ann.  348) 819 

V.  Lee  (26  Mass.  505) 394 

V.  Maxwell  (12  Me^c.  286) 634,    635 

V.  Pre.stou  (G  Ala.  83) 622 

V.  Read  (05  N.  Y.  56;i) 190 

V.  Sharrow  (15  B.  Mon.  64) !    815 

V.  Smith  (43  Vt.  269) 487     878 

V.  Smith(48  Vt.  51) 854,    858 

V.  Waterman  (10  Vt.  526) 336,    388 

V.  Waters  (9  M.  &  W.  611) 8,S2 

V.  Wetherell  (11  Allen,  19) 459 

V.  Whitesides  (1  Dana.  177) 714 

V.  Windsor  Savings  Bank  (46  Vt 

728) 340,    246 

Davison  v.  Davison  (13  N.  J.  Eq.  246) . .    600 

V.  Donaldson  (9  Q  B.  Di v,  623) 697 

Davol  V.  Quimby  (11  Allen,  208) 219 


SKOTION 

Davoue  v.  Fanning  (2  Johns.  Ch.  252) 

457,462,463,    469 

Dawson  v.  Atty  (7  East.  367) 714 

V.  Cotton  (26  .11a.  501) ...    432 

V.  Dawson  (12  Iowa,  513) 600 

t).  Kittle  (4  Hill,  107) 486 

Dawes  y.  Jackson  (9  Mass.  490) 426 

V.  Lnndreaux  (29  La.  Ann.  3G3) 100 

Day  V.  Boyd  (6  Hei><k,  458) 274 

V.  Crawford  (13  Ga.  508) 1008 

V.  Holmes  (103  Mass.  306) 195, 

281,  485,     936 

V.  McAllister  (15  Gray,  433) I14 

V.  Toledo,  &c.  Ry  (42  Mich.  523) 667 

V.  Wamsley  (33  Ind.  147) 721 

Daylight  Burner  Co.  v.  Odlin  (51  N.  H. 

56) 281,362  916.948,990,  1046 

Dayton  v.  Hoogland  (39  Ohio  St.  671) . .  349 
Dayton  Ins.  Co.  v.  Kelly  (24  Ohio  St. 

345) 931 

Dayton  v.  Wame  (43  N.  J.  L.  659)  ....      424 

Dean  v.  Bassett  (57  Cal.  640) 133 

V.  Swoop  (2  Binn.  72) 963 

Deakin  v.  Underwood  (33  N.  W.  Rep. 

618) 65,70,  77,    820 

Dearborn  v.  Dearborn  (15  Mass.  316) 

820,    835 

DeBaun  v.  Atchison  (14  Mo.  543) 83 

DeBouchoutv.  Goldsmid  (5  Ves.  Jun. 

211) 355 

DeBriar  v.  Minturn  (1  Cal.  4.50).     .  .212,    632 

DeCamp  v.  Stevens  (4  Biackf .  24) 635 

Decatur  v.  Paulding  (14  Pet.  497) 592 

Decker  Ex  parte  (6  Cow.  60) 94 

V.  Fredericks  (47  N.  J.  L.  469) 818 

DeComas  v  Prost  (3  Moo.  P.  C.  158). ...    206 

Decorah  i>.  Dunstan  (38  Id.  96) 892 

DeCordova  v.  Knowles  (37  Tex.  19) 818 

Decuir  V.  Lejeune  (15  La.  Ann.  569) 114 

Deering  v.  Tbom  (29  Minn.  120) 849,    449 

Def ord  v.  State  (30  M<i.  200) 5] 

DeForest  v.  Fulton  Firelns.CJo.  (1  Hall 

84) 1005 

DeForrest  v.  Wright  (2  Mich.  368).. 748,    747 

Def  ord  v.  Keyser  (30  Md.  179 666 

Degg  V.  Midland  Ry  Co.  (1  H.  &  N.  773)  669 
DeGi  oot  V.  Van  Duzer  (17  W^end.  170) . .  39 
Delhi  V  Adams  Ins.  Co.  (58  Penn.  St. 

443) 129 

Delafleld  v.  State  (26  Wend.  192).... 291,    292 

Delaiiey  v.  Levi  (19  La.  Ann.  251) 129 

V.  Rochereau  (34  La.  Ann.  1123)  539, 

569,570,    571 
Delaware,  &c   Canal  Co.  v.  Carroll  (89 

P«nn.  St.  374) 667 

DeLazardi  v.  Hewitt  (7  B,  Mon.  Ky.  697)    485 

DeLeon  v.  Trevino  (49  Tex.  88) 526 

DeLouis  v.  Meek  (2  G.  Greene,  55).  .810,  811 
Demarest  v.  Barbadoes  (40  N.  J.  L.  604)    783 

DeMets  v.  Dasrron  (53  N.  Y.  635) 819 

Deming  y.  Bullett  (1  Blackf.241) 421 

V.  Chase  (48  Vt.  328) 348,    360 

Den  V.  ZellTS  (7 N.  J.  L.  153) 896 

Denew  v.  Daverell  (3  Camp.  451)... 905,    975 

Denison  u.  Seymour  (9  Wend.  9) 575 

Dennis  V.  McCaKg  (32  111.  444)  457 

Dennett  V.  Cutts(ll  N.  H.  163) 8GH 

Denny  ".  Lincoln  (5  Mass.  385) 567 

V.  Manhattan  Co.  (2  Den.  N.Y.  115)    .539 

Dent  u.  McGrath  (3  Bush.  174) 914 

Denton  v.  Ja<-kson  (1U6  III.  433) 936 

V.  Noyes  (6  Johns.  295) 810,    809 

DePoret  v.  Gusman  (30  La.  Ann.  930)..    386 

Deposit  V.  Pitts  (18  Id.  475)  892 

Derocher  v.  Continental  Mills  (58  Ms, 

217).... 50,    651 

DeRoufigny  v.  Peale  (3  Taunt.  484). ...    828 

Derringer  v.  Meyer  (42  Wis.  311) 214,    215 

Desha  v.  Pope  (6  Ala.  690)  1035 

Desha  t).  Robinson  07  Ala.  228) "     648 

Deshler  v.  Beers  (,o2  Ill.s.  368). .  .495,  987,'  1006 


Hi 


TABLE    OF    CASES    CITED. 


SECTION 

Desmond  v.  Stebbins  (140  Mass.  339)  . .  966 
Despatch  Line   v   Bellamy    Mnfg  Co. 
(12  N.  H.  205)  78  93,  118,  136,  137, 

167,  401 
De  Stelger  v.  Hollington  (17  Mo   App. 

%87) 67,643,  972 

DeTastett  v.  Crousillat  (2  Wash.   133) 

315,  475,  484,  510,  954,  1008,  1011 

Detroit  v.  Jackson  (1  Doug.  106) 97 

Detroit.  &I3.  R.  R.Co.  v.  Barton  (61  Ind. 

29i) 741 

DevaU  v.  Burbridge  (4  W.  &  S.  305)  538,  101 -' 

Devaynns  v.  Robinson  (24  Beav.  86) 3-iS 

Devenport  v.  Sleight  (2  L.  &  B.  3S1). ...  94 
Devendorf  v.  West  Virginia,  &c.  Co. 

(17  W.  Va.  135) 443 

DeVignier  v.  Swanson  (1  B.  &  P.  346,  n)  769 

Devinney  v.  Reynolds  (1  W.  &  S.  328). .  428 

Devlin  V.  Brady  (32  Barb.  518)  Si 

Devoss  V.  Gray  (22  Ohio  St.  169) 72,  73 

DeWitt  V.  Cullings{32  Wis.  298) 647,  648 

DeWolf  V.  Strader  (26  HI.  225) 883 

DeWittw.  Walton  (9  N   Y.  570) 432 

Dexterr.  Hall(15  Wall.  9) 51 

Dias  V.  Chirkering  (61  Md.  348) 1046 

Dieas  v.  Stookley  (7  C.  &  P.  587) 865 

Dicas  V.  Lord  Brougham  (6  C.  &  P.  349)  580 

Dickt».  Cooper  (24  Penn.  St.  217) 714 

Dick  V.  Page  (17  Mo.  234) 245 

Dickey  V.  Linscott  (20  Me.  453) 640 

Dickens  v.  Jones  (6  Yerg.  483)  561 

Dickerman  v.  Ashton  (21  Minn.  538)  414, 

89,  414,  937 

Dickerson  v.  Wason  (47  N.  Y.  439) 519 

V.  Pyle  (4  Phila.  259) &44 

Dickinson  v.  Conway  {12  Alien,  491)...  129 

V.  Gay  (7  Allen,  34) 947 

Dickinson  (Dounty  v.  Mississippi  VaUey 

Ins.  Co.  (41  Iowa,  286) 9,  276 

Dlckman  ».  Williams  (50  Miss.  500)....  714 

Dickson  v.  Caldwell  (17  Mo.  595) 635 

V.  Screven  (23  S.  C.  212) 474 

t>.  Wright  (52  Miss.  5a5) 814 

Diefenback  v.  Stark  (59  Wis.  462) .  .634,  637 

Diehl  V.  Friester  (37  Ohio  St.  473) .  .839,  862 

Dieringer  v.  Meyer  (42  Wis.  311) 214 

Dietrich  '•.  Baltimore,  &c.  R.  R.  (58  Md. 

847) 715 

Dietz  V.  ilcCallum  (44  How.  Pr.  493) ...  871 

Dillaway  v.  Butler  (^135  Mass.  479) ....  723 

Dillingham  v.  Snow  (5  Mass.  547)  .  .586,  588 

Dillon  V.  Brown  (11  Gray,  179) 138 

Dingle  v.  Hare  (7  C.  B.  N.  S.  145).  ..348,  947 
Dingeldpin  v.  Third  Ave.  R.  R.  Co.  (37 

N  Y.577) 567 

Dirks  V.  Richards  (5  Scott's  N.  R.  534) .  681 
Distilled  Spirits,  The  (H  WaU.  U.S.  367) 

721,  722 

District  Bank,  In  re  (11  Ch.  D.  772)  .536,  781 

Diversy  v.  Kellogg  (44  111.  114) 224,  360 

Dixon,  Ex  parte  (4  Ch.  Div.  133) 773 

Dixon  V.  Eivart  (3  Meriv.  322) 265,  267 

V.  Stansfeld  (10  C.  B.  398) 679 

Dobell  V.  Hutchinson  (3  A.  &  E.  355) . .  12 

Docker  v.  Somes  (2  M.  &  K.  655) 469 

Dockham  v.  Potter  (27  hi.  Ann.  73) . . .  810 

Dodd  V.  Brott  (1  Minn.  270) 869,  873 

V.  Farlo w  (11  Allen,  426) 904,  947 

V.  Wakeman  (26  N.  J.  Eq.  484). 459,  469 

Dodds  V.  Vannoy  (61  Ind.  89) 533 

Dodge  V.  Favor  (15  Gray,  82) 486 

V.  Hopkins  (14  Wis.  630) 89,  179 

V.  McDonnell  (14  Wis.  553) 129,  287 

V.  Lambert  (2  Bosw.  570) 151 

V.  Perkms  (9  Pick.  Mass.  398) .  .530, 

531,  532,  1025 
V.  TUeston  (12  Pick.   833)  474,  483, 

975,  1027 

Dodson  V.  Swan(2W.  Va.  £11) 27 

Doeu.  Andrews  (Cowp.  845) 882 

V.  Qoldwin(2Q.  B.  143) 167 


SEoncni 

Doe  V.  Roberts  (16  M.  &  W.  778) 51,  63 

V.  Smith  (1  Jones,  N.  C.  L.  185) 240 

V.  Thompson  (22  N.  H.  217) 7M 

V.  Walters  (10  B.  &  C.  625) 167 

Doggett  V.   Illinois  Cent.  R.  R.  Co.  (34 

Iowa,  284) 658 

Dolan  V.  Scanlan  (57  Cal.  261)     . . .  .966,  967 

V.  Thompson  (126  Mass.  183) 1029 

Donald  v.  Hewitt  (33  Ala.  534) 676 

Doonan  v.  Ives  (73  Ga.  295) 967 

V.  Mitchell  (26  Ga.  472) 100 

Dorchester.  &c.  Bank  v.  New  England 

Bank)  1  Cush.  177).  186,  194,  514,  998 

Dorsey  v.  Abrams  (85  Penn.  St.  299) ....  121 

t).  Kyle  (30  Md.  512) 810,  809 

V.  Packwood  (12  How.  126) 211 

Dorranct-  v.  Scott  (3  Whart.  313) 66 

Doss  V.  Missouri,  &c.  R.  R.  Co.  (59  Mo. 

27)  751 

Dotterer  v.  Pike  (60  Ga.  29) 536 

Dotyv.  Hawkins  (6  N.  H.  247)  525 

V.  Miller  (43  Barb.  529) 967 

.  V.  Wilder  (15  111.  407) 694,  893 

V.  Wilson  (14  Johns.  378) 654 

Doubleday  v.  Kress  (50  N.  Y.  410) .  .373, 

379,  380,  817 

Doughaday  v.  Crowell  (1 1  N.  J.  Eq.  201).  131 

Dougherty  v.  Whitehead  (31  Mo.  255) . .  601 
Douglass  V.  Bernard  (Anthons  N.    P. 

278) 1002 

Douglass  V.  Murphy  (16  U.  C.  Q.  B. 

113) 510 

V.  Spears  (2  Nott.  &  McCnrd,  207) . .  211 

Douvielle  v.  Supervisors  (40  Mich.  585) .  201 

Dove  V.  Marten  (28  Miss.  588) 151 

Dover  v.  Harrell  (58  Ga.  572) 882 

V.  Plemmons  (10  Ired.  L.  23) 636 

Dowdallv.  Pennsylvania,  &c.  R.  R.  Co. 

(13BIatch.  403) 714 

Dowell  V.    Burlington,  &c.  RyCo.  (62 

Iowa,  629) 656,  659 

V.  Williams  (33  Kans.  819) 102 

V.  McKinzie  (65  Ga.  630) 150 

Dowling  V.  Allen  (74  Mo.  13) 659, 

664, 665,  668 

D.  Eggemann  (47Mlch.  171) 862 

Downer  v.  Collins  (26  Ala.  591) 432 

v.  Lent  (6  Cal.  94)     688 

V.  Morrison  (2  Gratt.  2.37) 86 

Downey  v.  Burke  (23  Mo.  228) 638 

Downing  v.  Herrick  (47  Me.  462) 680 

Dows  V.  Greene  (24  N.  Y.  638) 995 

V.  Morewood  (10  Barb.  183) 681 

Dozier«.  Freeman  (47  Miss.  647).  .273 

276,  289 

Drain  v.  Doggett  (41  Iowa.  682 875 

Drake  v.  Flewellan  (33  Ala.  106) . .  .438,  558 
Draper  v.  Massachusetts  Steam  Heat- 
ing Co.  (5  Allen,  338) . .  .432,  442,  550 

V.  Rice  (56  Iowa,  114) 882 

Dreisback  u  Rollins  (18  Pac.  Rep.  187)  966 
Dresden  School  District  v.  iEtna  Ins. 

Co.  (62  Me.  3301) 948 

Dresser  v.  Norwood  (17  C.  B.,  N.  P.) 

466) 721,  1048 

Drew  V.  Nunn  (4  Q.  B.  Div.  661) . . .  .254,  255 

Drexel  v.  Raimond  (23  Penn.  St.  21). ..  533 
Drinkwater  v.   Goodwin   (Cowp.    251) 

206,  263.  679,  993,  l(i32,  1039 
Drovers'    National    Bank    v.    Anglo- 
American,  &c.  Co.  (117  m.  100) 

513.  514 

Drummond  v.  Drummond  (2  Cai.  810).  481 

V.  Humphreys  (39  Me.  847) 653 

V.  Wood  (2  Cai,  310) 481,  942,  1015 

Drumright  v.  Philput  (16  Ga.  424)..  .93, 

137,  414 

Drury  v.  Foster  (2  Wall.  24) 94,  394 

DuBois  V.  Delaware  &  Hudson  Canal 

Co.  (4  Wend.  285) 702 

Dubois  Appeal  (38  Penn.  St.  231) . .  .865,  862 


TABLE   OF    OASES  CITED. 


Im 


SECTION 

Dnclose  v.  Cunningham  (102  N.  Y  678).  966 

Ducongo  V.  Forgay  (15  La.  Ann.  37) . . .  390 

Duffey  ('.  Duffey  (44  Penn.  St.  399) ....  599 

Duffy  V.  Hobson  (40  Cal.  240) 9B6 

Dufresne  v.  Hutchinson  (3  Taunt.  117)  476 

Dugan  V.  Anderson  (36  Md.  567) 624 

Dugdale  v.  Lovering  (L.  R.  10  C.  P.  196)  917 

Du?uid  V.  Edwards  (50  Barb.  200) 536 

Duke  V.  Harper  (66  Mo.  51) 844 

Dumont  v.  Williamson  (18  Ohio  St.  515)  9^9 

Duncan  v.  Baker  (21  Kan.  99) 637 

V.  Gilbert  (29  N.  J.  L.  521) 392 

V.  Hill  (L.R.  8Exch.  242) 977 

«.  NUes  (32  111.  532) 5.50 

V.  Spear  (11  Wend.  54) 525,  765 

Dundee  Mort.  &  Trust  Co.  v.  Hughes 

(:.'0  Fed  Rep.  39) 836 

Duner  V.  Parker  (52  X.  Y.  494) .  .548,  549,  550 

Dunklee  v.  Locke  (13  Mass.  525) 869 

Dunlap  V.  Hand  (26  Miss.  460) 647,  648 

V.  Lambert  (6  CI.  &  Fin.  600). 755 

V.  Mitchell  (10  Ohio,  117) 463 

Dunlop  V.  Monroe  (7  Cranch.  24^)..593,  594 
Dunn  V.  Hartford,  &c.  R.  ,R.  Co.  (43 

Conn.  434) 148 

V.  Moore  (16  III  151)  635 

V.  Sayles  (1  Dav.  &  M.  579) 211 

Dunton  v.  Chamberlam  (1  111.  App.  361)  555 
Dunwidie  v.  Kerley  (6  J.  J.    Marsh. 

501) 528 

Du  Pierat  v.  Wolfe  (29  N.  Y.  436) 1052 

Dupont  V.  Wertheman  (10  Cal.  354). 129,  326 
Du  Quoin,  &c.  Mining  Co.  v.  Thorwell 

(3  HI.  App  394) 619 

Durant  v.  Fish  (40  Iowa,  559) 1015 

Durgin  v.  Somers  (117  Mass.  55) 45 

Durkee  v.  Central  Pac.  R.  R.  Co.  (69 

Cal.  533) 714,  715 

Durnford  v.  Patterson  (7  Martin,  La. 

460) 498,  618 

Dusar  u  Perit  (4  Binn..  Penn.  361) 481 

Dusenbury  v.  Ellis  (3  Johns.  Cas.  70)..  550 

V.  Seeley  (87N.  Y.  634) 745 

Du  Souchet  v.  Dutcher  (15  North  E. 

Rep.  459) 775 

Dutcher  v.  Beckwith  (45  lU.  460) ...  .87,  337 

Dutton  V.  Marsh  (L.  R.  6Q.  B  361). 43t),  755 

V.  Warscliauer  (21  Cal.  609) 95,  414 

V.  Willner  (52  N.  Y.  319) 68,  469 

Duval  V.  Craig  (2  Wheat.  45) 421.  558 

Dwight  t'.  Blackmar  (2  Mich.  330). .  .461-463 

V.  Simon  (4  La.  Ann.  490) 831,  833 

r.  Weir  (6  La.  Ann  706) 816 

Dwyer  v.  American  Express  Co.  (to 

Wis.  453) 667 

Dyer  v.  Pearson  (3  B.  &  C.  38) 787 

Dykers  v.  Townsend  (24  N.  Y,  61) .  .696,  701 

Eaddie  v.  Ashbaugh  (44  Iowa,  519) .  148,  349 
Eads  V.  Williams  (4  DeQex.   Mac.  & 

Gor.  674) 18S 

Eagle  Bank  v.  Smith  (5  Conn.  71)  . .  .84,  86 
Eagleston  Mnfg  Co  v.  West  Mnfg  Co. 

(18  Blatch.  22;B) 244 

Eaken  v.  Harrison  (4  McCord.  249)....  619 

Earl  V.  Grout  (46  Vt.  113) 883 

Early  v.  Wilkinson  (9  Gratt.  68) 443 

Eames  v.  Sweetser  (ICl  Mass.  78) 62 

Earp  V.  Cummins  (54  Penn.  St.  394)  ...  966 

Eason  v.  S.  &  E.  T  Ry  Co.  (65  Tex.  577)  669 

Eastern  Bank  v.  Taylor  (41  Ala.  93) 464 

Eastern  Railroad  v.  Benedict  (5  Gray, 

561)  449,  696,  701,  769 

East  Haddam  Bank  v.  Scovil  (12  Conn 

303) 514 

East  India  Co.  u  Hensley  (1  Esp.  112).  181 

Eastman  v.  Wright  (6  Pick.  322) 772 

Easton  v.  Calendar  (11  Wend.  90) 588 

V.  EUis  (1  Handy,  70) 240 


SECTION 

East  River  Bank  v.  Kennedy  (9  Bosw. 

513)  813 

East  River  Gas  Light  Co.  v.  Donnelly 

(93  N.  Y.  557) 580,  588 

East  Tennessee.  Ac.  R.  R.  Co.  v.  Duf- 

fleld  (12  L^-a,  63)  . .  .661,  664,  665,  670 

V.  Gurley  (12  Lea,  46) 662 

Eastwood  V.  Kenyon  (11  Ad.  &  El.  438)  600 
Eaton  V.   European,   &c.    Ry  Co.   (59 

Me.  520) 733,  747 

V.  Truesdail  (52  Ul.  307) . .  1032,  1035,  1037 
V.  Welton  (22  N.   H.   352)  530,  5n, 

533,  1028 

Eberhart  v.  Reister  (96  Ind.  478) 531 

Eberts  --.  Selover  (44  Mich.  519) 130 

Eby  V.  Schumacher  (29  Penn.  St.  40) . .  954 

Eccles  V.  Stephenson  (3  Bibb.  517)  &J4,  835 

Echols  V.  Cheney  (28  Cal.  157) 419 

Eclipse  Wind  Mill  Co.  v.  Thorson  (46 

Iowa,  181 773 

Eddy  V.  Badger  (8  Bias.  238) 745 

V.  Livingston  G55  Mo.  493) 497,  500 

Edgerton  v.  Bracket!  (11  N.  H.  218). ...  811 

v.  Thomas  (9  N.  Y.  40)  62 

Edings  V.  Brown  (1  Rich.  255) 557 

Edwards  v.  Davenport  (20  Fed.  Rep. 

756) :.  48 

t».  Edwards  (29  La.  Ann.  597) 813 

V.  Golding  (20  Vt.  30) 769 

V.  Hodding  (5  Taunt  815) 566 

V.  Levy  (2  Fost.  &  Fin.  94) 215,  638 

V.  Midland  Ry  Co.  (6  Q.  B.  Div.  287)  741 

Egerton  v.  Logan  (81  N.  Oar.  172) 533 

Eggleston  v.  Austin  (27  Kan.  245) 969 

V.  Board  man  (37  Mich.  14)  65,  175, 
187,  608,  607,  760,  770,  814,   815, 

824,842,  849 

V.  Wagner  (46  Mich.  610) 96 

Ehle  V.  Judson  (24  Wend.  97) 600 

Eichbaum  o.  Irons  (6  Watts  &  Serg. 

67) 72,73,  557 

Eickman  v.  Troll  (29  Minn.  124) . . .  .808,  810 
Eilenberger  v.  Protective  Mut.  F.  Ins. 

Co.  (89  Penn.  St.  464) 743,  931 

Ela  V.  Smith  (5  Gray,  Mass.  136) 580 

Elam  V.  Carruth  (2  La.  Ann.  275 130 

Elbin  V.  Wilson  (33  Md.  135) 588, 

Elderton  v.  Emmons  (6  M.  Q.  &  S.  160) 

621,  622 

Eldridge  v.  Holway  (18  111.  445) 193 

V.  Rowe  (2  Gilm.  91) 634,  635 

V.  Walker  (60  111.  230).   ...  457,464,  791 

Eliot  V.  Lawton  (7  Allen,  274) .  .854,  855,  858 
Elkhart  County  Lodge  v.    Tracy    (98 

Ind.  'Sm 22,  24 

Elkington  v.  HoUand  (9  M.  &  W.  65S) 

824,  825 
Elkins  V.  Boston,  &c.  R.  R.  Co.  (19  N. 

H.  337) 769 

Elliott  r.  Bradley  (23  Vt.  217) 676,  103.) 

V.  Cox  (48  Ga.  39) 10,5 

w.  Pray  (10  Allen,  378) 6ii6 

V.  stocks  (67  Ala.  336) 93 

V.  Swartwout  (10  Pet.  137)  519,  561, 

562,  564,  565 

V.  Walker  (1  Rawle,  126) 652 

Ellis  u  Hamlen  (3  Taunt.  51)  635 

V.  Turner  (8  Term  Rep.  531) 741 

V.  Wild  (6  Mass.  821) 929 

Ellsner  u  Radcliff  (21  111.  App.  195)...  1044 

Ellsworth  V.  Cordrev  (63  Iowa,  675)...  468 

Elmore  v.  Brooks  (6  Heisk.  4.5) 480 

Elseeu  Gatward  (5  T.  R.  143) 478 

Elston  V.  Jasper  (45  Tex.  409) 50 

Eltin?  V.  Sturtevant  (41  Conn.  176) 607 

Elwell  V.  Chamberlain   (31  N.  Y.  611) 

178,  775 

t>.  Dodge  (33  Barb.  336) 439 

V.  Shaw  (16  Mass.  42) 419  4^2 

Ely  V.  Hanf ord  (65  III.  267) 462 

V.  James  (123  Mass.  36) 148 


liv 


TABLE    OF    CASES    CITED, 


SECTION 

Ely  V.  Thompson  (3  A.  K.  Marsh.  70) . .  580 

Kiuersoii  v.  Coggswell  (16  Mh.  77) 86 

V.   Providence    Hat  Mnfg  Co.   (12 

Mass.  237) 91,  l.-b,  89:,  432.  1004 

Emmena  v.  Elderton  (13  Com.   B.  495) 

212, 622,  623 
Emmerson  v.  Heelis  (2  Taunt.  38,  47) 

12,  893 

Endsley  v  Strock  (50  Mo.  503) 4^1 

Eugland  v.  Garner  (90  N.  C.  197) 810 

Knglehart  v.  Peoria  Plow  Co.  (21  Neb. 

211) 392 

English  V.  Uevarro  (5  Blackf .  588) 521 

Euoch  V.  Wehrkamp  (3  Bosw.  398)....  1033 

Enos  V.  Tuttle  (3  Conn.  250) 715 

Episcopal  Church  v.  WUey  (2  Hill,  Ch. 

584) 696 

Episcopal  Society  v.  Episcopal  Church 

(1  Pick.  372) 179 

Erickson  v.  BeU  (^3  Iowa,  621) 745 

Erie  City  Iron  Works  v.   Barber  (106 

Penn.  St.  125) 743 

Erie,  &c.  Co.  v.  St.  Louis  Co.   (6  Mo. 

App.  172) 994,  995 

Ernest  v.  Stoller  (5  Dill.  438) 10U6 

Esdaile  v.  LaNauze  (1  N.  &  C.  394) 306 

E.^leman  v.  Lewis  (49  Penn.  St.  410) . .  457 

Esley  V.  People  (23  Kan.  510) 809,  8lO 

Espy  V.  Bank  of  Cincinnati  (18  Wall. 

a.  S.604) 717 

Estate  of  A.  B.  (  1  Tucker,  247) 8  .'5 

Estell  V.  Myers  (54  Miss.  174) 649 

Eureka  Co.  v.  Bass  (81  AJa.  200) . . .  .660.  601 

European  Bank,  In  re  (5  Ch.  Ap.  358) . .  7v;3 
European,  &c.  Ry  Co.  v.  Poor  (59  Me. 

277) 455 

Evans  v.  Bennett  (7  Wis.  404) 635 

V.  Chicago,  &c.  R.  R.  Co.  (26  111. 

189) 164 

V.  Davidson  (53  Md.  245) . .  .734,  735,  736 

V.  Evans  (3  Ad.  &  El.  132) 7.55 

V.  Feame  (16  Ala.  689) 206,  2)7 

V.  Foster  ON.  H.  374) 5S0 

V.  Potter  (2  Gall.  12) 994,  1007 

V.  Root(7N.  Y.  186) 1008,  10"9 

V.  Watrous  (2  Port.  205) 824,  J-iS 

V.  Wells  (22  Wend.  311) 414 

V.  Wills  (•<!2  Wend.  340) 141 

Everett  v.  Coffin  (6  Wend.  609)  573,  574,  681 

V.  Saltus  (15  Wend.  474) 677,  681 

V.  United  States  (6  Port.  166) 167 

V.  Warner  Bank  (58  N.  H.  340) 8l0 

Everhart  v.  Searle  (71  Penn.  St.  256)  67, 

643.  953,  972 

Everingham  v.  Meighan  (55  Wis.  354).  35 

Evrit  V.  Bancroft  (22  Ohio  St.  172) 759 

F.wan  V.  Lippincott  (47  N .  J.  L.  192) ....  668 

Ewing  V.  Medlock  (5  Port.  82) 755 

E wins  V.  Gordon  (49  N.  H.  444) 211 

Exchange  Bank  v.  Lewis  County  (28 

W.  Va.  273) 4  J8,  444 

V.  Rioe  (107  Mass.  37) 449,  693,  701 

V.  Third  Nat.  Bank  (112  U.  S.  276).  510 

Eystra  v.  Capelle  (61  Mo.  580) 63 

EzeU  V.  Franklin  (2  Sneed.  236) ....  848,  350 

F. 

Fabens  v.  Mercantile  Bank  (23  Pick. 

330) 614 

Fahnestock  v.  Bailey  (3  Mete.  48) 1044 

Fairbanks  v.  Snow  (145  Mass.  153) 55 

Fairchild  v.  Railroad   Co.  (8  111.,  App. 

591) 607 

Fairfield  v.  Adams  (16  Pick.  381) 755 

Fairfield  Savings  Bank  v.    Chase  (72 

Me,   226) 721,727,  729 

Fairlle  v.  Fenton  (L.  R.  5  Ex.  169).. 756, 

982,  9a3 

V.  Hastings  (10  Ves.  Jr.  125) .. .  .714,  715 

Fairthorne  v.  Blaquire  (6  M.  &  S.  73). ..  56 


SKOTIOK 

Falkv.  Moebs(127U.  S.  597) 441,  443 

Falkenburg  v.  Clark  (11  R.  I.  278) 957 

Faloon  v.  Jlclntyre  (118  111.  292) 599 

Fanning  v.  Cobb  (20  Mo.  App.  577) 83 

Farebrother  v.  Ansley  (1  Camp.  343)... 

915,  917 
V.  Simmons  (5  B.  &  Aid.  333) . . .  .756, 

893  973 

Fareira  v.  Gabell  (87  Penn.  St.  89) !  974 

Faries  v.  Ranger  (35  La.  Ann.  102) 1008 

Farmer  v.  People  (77  III.  3i2) 746 

V.  Robinson  (2  Camp.  339) 1052 

Farmers'  Bank  v.   Butchers'  Bank  (16 

N.  Y.125) 6,84.  717 

V.  Colby  (64  Cal.  352) 438 

V.  King  (57  Penn.  St.  202) 536, 

780,  781,  789,  1044 

V,  Logan  (74  N.  Y.  568) 689 

V.  Mackall  (3  Gill.  447) 820 

V.Payne  (25  Conn.  444) ...  .718,  721, 

729,  730 

V.  Sherman  (6  Bosw.  181) 148 

V.  Sprigg  (11  Md.  389) 812 

■  V.  Vail  (21  N.  Y.  4a5) 511 

FarminRton  Savings  Bank  v.  Buzzell 

(61  N.  H.  612) OS,  393 

Farnham  v.  Thompson  (34  Minn.  830) . . 

321,  822 

Farnsworth  v.  Brunquest  (36  Wis.  202).  67 

V.  C!hase  (19  N.  H.  534) 486 

V.  Garrard  (1  Camp.  38) 636 

V.  Hemmer  (1  Allen,  494) 67, 

281,  643,  952,  953,  972 

Farnum  v.  Brooks,  (9  Pick.,  Mass.  212).  466 

Farr  V.  John  (23  Iowa,  286) 895 

Farrar  v.  Chauff^-tete  (5  Den.  527) 674 

V.  Duncan  (29  La.  Ann.  126) 308,  811 

V.  Oilman  (19  Me.  440) 439 

V.  Peterson  (53  Iowa,  420) 849 

Farrel  Foundry  v.  Dart  (26  Conn.  376)..  730 

Farrell  v.  State  (32  Ohio  St.  456) 746 

Farrer  v.  Lacy  (25  Ch.  Div.  636)  897 

Farrington  u.  Meek  (30  Mo.  578) . . .  .680.  684 
Farrow  V.  Commonwealth  Ins.  Co.  (18 

Pick  53) 756,931,  983 

Farwell  v.  Boston  &  Worcester  R.  R. 

(4  Mete.  49) 656 

r.  Curtis  (7  Biss.  162) 514 

V.  Howard  (26  Iowa,  381) 155,  164 

V.  Price  (30  Mo   587) 954 

Fassitt  V.  Middleton  (47  Penn.  St.  214)..  819 

Faulkner  v.  Brown  1 13  Wend.  63) 765 

Faulks  V.  People  (39  Mich.  200) 746 

Faurie  v.  Morin  (4  JIartin.  39)  28 

Fausler  v.  Parsons  (6  W.  Va.  486) 588 

Fawcett  v.  Cash  (4  B.  &  Ad.  904) 622 

V.  Fowlis(7  B.  &  C.  394) 580 

Faxon  v.  Mansfield  (2  Mass.  147) 636 

Fay  V.  Burdett  (81  Ind.  433) 48 

V.  Richmond  (43  Vt.  25) 84,  848 

V.  W'incliester  (4  Mete.  513) 320 

Fearing  v.  Kimball  (4  Allen,  125) 163 

Feild  V.  Farrington  (10  Wall.  141) 1009 

Feise  v.  Wray  (3  East.  93) 680,  687 

Felker  v.  Emerson  (16  Vt.  633) 62 

Fellows  V.  Hartford,  &c.,  Co.  (38  Conn. 

197) 224,  225,  228 

V.  Longyor(91  N.  Y.  330) 745 

V.  Northrup  (39  N.  Y.  121) 880 

Felt  V.  School  district  (24  Vt.  297) 496 

Feltham  v.  England  (L.  R.  2  Q.  B.  33)..  668 

Feltusu.   Swan  (62  Miss.  415)   539,  570 

Fenner  r.  Lewis  (10  Johns.  38) 87 

Fenno  v.  English  (22  Ark.  170) 858 

Fenton  v  Clark  (11  Vt.  557) 631 

V.  Dublin  Steam  Packet  Co.  (8  Ad. 

&E1.  8;i5) 735,  735 

Fereira  v.  Say  res  (5  W.  &  S.  210) . .  .240,  247 

Fernald  v.  Ladd  (4  N.  H.  370) 812 

Ferguson  v.  Crawford  (70  N.  Y.  258). . .  810 
Ferris  v.  Carson  Water  Co.  (16  Nev.  44>    667 


TABLE    OF    OASES    CITED. 


SECTION 

Ferris  t>.  Irving  (28  Cal.  645) . . .  .840,  244,  245 

V.  Kilmer  (48  N.  Y.  300) 558,  956 

V.  Paris  (10  John.  283)530,  531,  lO'^,  1025 

Ferry  v.  Laible  (31  N.  J.  Eq.  56'i) 323 

Fessenden  v.  Forest  Paper  Co.  63  Me. 

175) 648 

Fetrow  v.  Wiseman  (40  Ind.  155) 51,  54 

Fewings  v.  Tisdale  (1  Exeh.  295) 622 

Kick  V,  Runnels  (48  Mich.  y02) 511 

Fickett  V.  Durham  (109  Mass.  419) 4.59 

Field  V.  StsLgg  ("52  Mo.  534)  94,  394 

Fifth  Nation  il  Bank  v.  Village  of  Hyde 

Park  (101  111.595) 780,  781 

Fillieul  V.  Armstrong  (7  Ad.  &  El.  557).  638 

Filson  V.  Hime3(5  Penn.  St.  452)  ...28,  40 

Finch  V  Mansfield  (97  Mass.  89)  341 

Finn  v.  Western  R.  R.  Co.  (112  Mass. 

524) 755,  765 

Finney  v.  Cadwellader  (55  Ga.  75) 649 

Firbank  v.  Humphrey  (18  Q.  B.  Div.  54)  959 

Firestone  v.  Firestone  (49  Ala.  128) 459 

First  National  Bank  v.  Bank  of  Mon- 
roe (33  Fed.  Rep.  403) 519,  782 

«.  Bissell  (2  McCrary,  73) 460 

«.  Boyce  (78  Ky.  42) 994 

V.  Christopher  (40  N.  J.  L.  435) . .  729,  730 
V.  First  National    Bank  of   Rich- 
mond (76  Ind.  561) 519,  782 

V.  Fourth  National  Bank  (77  N.  Y. 

32))  518 

i;.  Fourth  National   Bank  of  New 

York  (77  N.  Y.  320) 511 

V.  Free  i671owa,  11) 87,  108 

V.  Gay  (63  Mo.  33) 116,  393,  434 

V.  Hall  (44  N.  Y.  395) 439,  7,55 

V.  Kimberlands  (16  W.  Va.  555) 121 

«.  Leppel  (9  Col.  594) 526 

V.  Mount  Tabor  (52  Vt.  87) 78 

V.  Nelson  (38  Ga.  391) 994 

V.  Ocean  National  Bank  (60  N.  Y. 

278) 714 

V.  Reno  County  Bank  (3  Fed.  Rep. 

257) 519 

uShaw(61N.  Y.  283) 945 

First  Parish  u.  Fiske  (8  Gush.  264) 586 

Fischer  v.  Bell  (91  Ind.  243). ..  .937,  968,  967 

Fish  r  Dodge  (4  Denio,  817) 539 

V.  Kelly  (!7  C.  B..  N.  S.  194)  ....497.  836 

V.  Ki-iiipton  (7  M.  6.  &  S.  6S7) 774 

Fisher  v.  Campbell  (9  Por.  210) 86 

V.  Dyner  («2  Ind.  348) 975 

V.  Krutz(9Kans.  501) 457,  459 

V.  Lodge  (50  Iowa,  459) 87 

I'.  Marsh  (6  B.  &  S.  411) 753,  755 

V.  Oskaloosa  (28  Iowa,  381) 809 

V.  Porter  (23  Fed.  Rep.  162) 745 

V  Rieman  (12  Md.  497) 9\;9 

V.  Salmon  (1  Cal.  413) ....  421 

V.  ^  argent  (10  Cush.  230) 281,  486 

Fishkill  Savings  Inst.  v.  Bostwick  (19 

Hun,  354) 729 

Fisher  v.  Smith  (4  App.  Cas  1) 980 

Fisher's  AppealC31  Penn.  St.  29) 466 

Fisk  V.  Central  Pac.  R.  R.  Co.  (72  CaJ. 

38) 668 

V.  Henarie  (13  Oregon,  156) 966 

Fiske  V.  Eldridge  (12  Gray,  474) . . .  M'^,  447 

Fitch  V.  Newberry  (1  Doug.  1).674,  677,  1036 

I'.  Scott  (3  Ho w.  314) 826,  824 

Fitzgerald  v.  Fauconberge  (Fltz  Gib- 
bon, 207) 731 

Fitzherbert  v.  Mather  (1  T.  R.  12) .  .714,  725 
Fitxhugh  V.  Wiman  (9  N.  Y.  559).. 765, 

^                                                            922,  1041 
Fltzsimmona  v.  Southern  Express  Co. 

(40  Ga.  330) . .     67,  644 

Flagg  V.  Baldwin  (38  N.  J.  Eq.  219) ....  35 

Flanagan  v.  Brown  (70  Cal.  254) 207 

Fianigan  v.  CruU  (53  111  852) 898 

Bleckner  v.  U.  S.  Bank  (S  Wheat,  363) 

118,  167 


8KCTI0N 

Fleming  v.  Hill  (62  Ga.  751) 553 

Flemyngw.  Hector  (2  M.  &  W.  172). 72,  73 
Fletcher  v.  jdoston  &  Maine  R.  R.  (1 

Allen, 9) 495 

u.  Dy.sart  (9  B.  Monr.  413) 129 

V.  Marshall  (15  M.  &  W.  755) 977 

V.  Rylands  (L.  R.  1  Exch.  265) 747 

Flexner.u.  Dickerson  (72  Ala.  3!8) 51 

Fhke  V.  Boston,  &c,  R.  R.  Co.  (53  N.  Y. 

549) 664,  665 

Flint,  &c.  R.  R.  Co.  v.  Dewey  (14  Mich. 

477) 463 

Florance  v.  Adams  (2  Rob.  556) 461,  46i 

V.  Richardson  (2  La.  Ann,  27) 892 

Flournoy    v.    Jeffersonville    (17    Ind. 

169) 592 

Flower  v.  Downs  (6  Id.  5.38) 171 

V.  Jones  (7  Martin,  La    N.  S.  143) . .  177 
V.    Pennsylvania,    R.    R.    Co.     (69 

Penn.  St.  210) 669 

Floyd  V.  Barker  (12  Coke,  25) 580,  581 

V.  Naagle  (3  Atk.  568) 831 

V.  Sugden  (134  Mass.  .563) 567,  663 

Floyd  Acceptances,  The  (7  Wall.  66(5)  . . 

_                                                             273,  291 

Fluryu.  Grimes  (52  Ga.  34-3) 463 

Flyunu.  Salem  (134  Id.  351) 667 

Fogarty  v.  Sawyer  (17  Cal.  591) 321 

Fogg  V.  Pew  (10  Gray,  Mass.  409) 714 

Foley  V.  Cowgill  (5  Blackf.  18) 743 

Folger  V.  Peterkin  (2  South  Rep.  579).  63 

Fol.som  V.  Batchelder  (22  N.  H.  51). ...  786 

V.  Mus^ey  (8  Greenl.  4J0).495,  1006,  1020 
Fonda  v.  "Van  Home  (15  Wend.  631). 51, 

52,  53 

Foot  V.  Tewksburv  (2  Vt.  97) 871 

Forbes  v.  Baadeu  (31  N.  J.  Eq.  381)...  74.5 

V.  Hagman  (75  Va.  168) 119 

V.  Halsey  (26  N.  Y.  53) 4.57 

Forb'jsh  v.  Leonard  (8  Minn.  303).  .SSg,  870 

Ford  V.  Danks  (16  La.  Ann.  110). . .  .215,  638 

V.  Fitchburg  R.  R.  Co.  (110  Mass. 

240) 659,  664,  665 

V.  French  (72  Mo.  250) 722 

V.  Par-leer  (4  Ohio  St.  .576.) .594 

V.  Williams  (13  N.  Y.  577) 839 

V.   WiJliams  (21  How.  U.    S.    289) 

696,  701 
Fordyce  v.  Peper  (16  Fed.  Rep.  516) 

1009,  1027 

Fore  V.  Campbell  (1  S.  E.  Rep.  180) ....  328 

Formby  V.  Pryor  (15  (ja.  258) .32 

Porney  v.  Shipp  (4  Jones.  527) 554 

Forniquet  v.  Tegarden  (24  Miss.  90) 654 

Forrestier  v.  Bordman  (1  Story.  4  5) 

129.  481.  942,  1030 
Forsee  v.  Alabama,  &c.  R.  R.  Co.  (63 

Miss  66) 751 

Forshawu.  Lewis  (1  Jur.  263). 882 

Forster  v.  Fuller  (6  Mass.  58) 442 

V.  Havman  (26  Penn.  St.  266) 924 

V.  Mackr"th  (L.  R.  2  Exch.  16.3). ...  393 

Forsyth  v.  Hooper  (11  Allen,  419) 747 

V.  Day  (41  Me.  382) 428,  434 

V.  Day  (46  Me.  177) 116 

Forsythe  v.  Beveridge  (52  111.  268) 869 

V.  Bonta  (5  Bush.  547) 116 

Fortw.  Coker  ai  Heisk.  579) 155 

Fort  Wayne,  &c.  R.  R.  Co.  w.  Gildei-- 

sleeve  (33  Mich.  13-3)  656,  659 

Foster  Ex  parte  (2  Story,  144) 676,  673 

r.  Rates  (12  M.  &  W.  226) 124 

V.  Essex  Bank  (17  Mass.  479) 497-740 

V.  Fuller  (6  Mass.  58) 442 

V.  Hall  (12  Pick.  89) 884,  88.5,  886 

V.  Jack  (4  Watts,  834) 842,  8.i8 

V.  Jon<^s  (1  S.  E.  Rep.  275) 63 

t>.  Persch  (68  N.  Y.  400) 5.58 

V.  Preston  (8  Cow.  198) 475,  1024 

V.  Rockwell  (104  Mass.  167)....  155, 

163.  171,  315 


Ivi 


TABLE    OF    CASES    CITED. 


SECTION 

Foster  v.  Smith  (2  Cold  474) 481, 

483,  76 J,  7o9,  773,  885,  943,  1015 

V.  Waller  (75  III.  464) 1006.  1013 

V.  Wiley  (27  Midi.  244) 811,  839 

Foulkg  w.  Falls  (91  lad.  315) 816,  826 

Fountain  Coal  Co.  v.  Phelps  (95  Ind. 

271) 468 

Fourth  Nat.  Bank  v.  American  Mills 

Co.  (29  Fed.  Rep.  611) 1033 

Fourth  Nat.  Bank  v.  St.  Louis  Co.  (11 

Mo.  App.  333) 994,  995 

Fowle  V  Kerchner  (87  N.  C.  49) 446 

Fowler  u.  Armour  (24  Ala.  194) 622 

V.Atkinson  (6  Minn.  573) 438,  440 

V.  N.  Y.  Gold  Exchange  (67  N.  Y. 

138) 148 

V.  Payne  (49  Miss.  32) 648 

V.  Piy lie  (52  Miss.  210) 649 

V.  Pickering  (119  Mass.  33) 'Hi 

V.  Shearer  (7  Mass.  14). 419,  421,  423,  461 

Fox  V.  Byrnes  (52  N.  Y.  150) 967 

V.  Cooper  (2  Q.  B.  827) 878 

V.  Drake  (8  Cow.  191)  426 

V.  McGregor  (11  Barb.  41) 683 

w.  Rouse  (47  Mich.  558) 966 

V.  State  (3  Tex.  App.  329) 746 

Frame  v.  William  Penn  Coal  Co.  (97 

Penn.  St.  309) 774 

Francis  v.  Cockrell  (L.  R.  5  Q.  B.  184). .  6.;6 

V.  Edwards  (77  N.  C.  271) 100 

V.  Evans  (33  N.  W.  Rep.  93) 536,  537 

V.  Kerker  (85  111.  190) 461.  791,  952 

Frandsen  v.  Chicago,  &c.  R.  R.  Co.  (36 

Iowa  372) 670 

Frank  v.  Ingalls  (4  Ohio  St.  560) 3i7 

V.  Jenkins  (22  Ohio  St.  597) 151,  281 

Frankfort  S.  T.  Co.  v.  Churchill  (6  T.  B. 

Mon.  427) Ifi7 

Franklin  v.  Ezell  (1  Sneed,  497) 1.51,  308 

Franklin  Fire  Ins.  Co.  v.  Hart  (31  Md. 

60) 74 

Franklin  Ins.  Co.  v.  Sears  (21  Fed.  Rep. 

290) 475 

Franklin  Bank  v.  Pennsylvania,    &c. 

Co.  (11  Q.  &  J.  Md.  28) 714 

Franklin  Mining  Co.  v.  Harris  (24  Mich. 

115) 213,  632 

Franklyn  v.  Lamond  (4  C.  B.  637) 913 

Franks  v.  Morris  (9  W.  Va.  664) 468 

Fraser  v.  Jennison  (42  Mich.  206) 885 

V.  McPherson  (3  Desau,  393) 363 

V.  United  States  (16  Ct.  of  CI.  507)  .  646 

V.  Wyckoff  (63  N.  Y.  445) 612,  966 

Fray  v.  Blackburn  (3  B.  &  S.  576). .580,  581 

Frazierv.  Parks  (.56  Ala.  .363) 818 

V.  Wyckoff  (63  N.  Y.  445 906 

Freeman  v.  Auld  (44  N.  Y.  55) 567 

V.  Buckingham  (18  How.  182) 717 

V.  Otis  (9  Mas'!.  272) 4':!6 

V.  Rosher  (13  Q.  B.  780) 839 

French  V.  Price  (24  Pick.  13) 699,  1048 

V.  Wade  (35  Kan.  391) 100,  102 

Frenkel  v.  Hudson  (82  Ala.  158). .  ..73-3,  739 

Fresseilu  Haile  (18  Mo.  18) 869 

Fretwellw.  Troy  (18  Kans.  271) 892 

Fretz  V.  Stover  (22  Wall.  198) 269 

Friend  v.  Hamill  (34  Md.  298) 588 

Frink  v.  Roe  (70  Cal.  296) 204,  207 

v.Roe(llPac.  Rep.  820) 331 

Friswell  v.  King  (15  Sim.  191) 862 

Fritchcy  v.  Bosley  (56  Md.  96) 820,  813 

Frith  V.  Cortland  (3  Hem.  &  M.  417). 

536,  781 

Frost  V.  Belmont  (6  Allen,  152) 22,  730 

V.  Knight  (L.  R.  7  Ex.  Ill) 634 

Frothingham  v.  Everton  (12  N.  H.  239) 

474,  1009 

Frye  t>.  Lockwood  (4  Cow.  4.54) 561,  564 

V.  Saunders  (21  Kans.  26) 45 

Fullam  V.  West  Brookfleld  (9  Allen.  1) 

419,  421,  424 


SSCTIOM 

FuUer  v.  Brown  (11  Mete.  440) 631 

V.  Dame  (18  Pick.  472) 29 

r.  Ellis  (39  Vt.  345) 120 

V.  Gould  (20  Vt.  643) £80 

V.  Hooper  (3  Gray,  334) 437,  443 

V.  Jewett  (SO  N.  Y.  46) 664,  665 

Fulton  V.  Brown  (10  La.  Ann.  350).  .386,  816 

V.  Maccracken  (18  Md.  528) 883 

v.  Whitney  (5  Hun.  19) 791 

Fulton  Bank  v.  New  York,  &c.  Canal 

Co.  (4  Paige,  127). 780 

Fultz  V.  Wimer  (34  Kan.  576) 966 

Furnas  v.  Frankman  (6  Neb.  429)..  185, 

279  998 

Furneaux  v.  Easterly  (36  Kans.  539). .!  849 

G. 

Gadd  V.  Houghton  (1  Ex.  Div.35r» 755 

Gaffney  v.  Hayden  (110  Mass.  137) . .  .59,  651 

Gage  V.  Allison  (1  Brev.  495) 249,  1032 

Gage  V.  Gage  (10  Fost.  420) 98 

Gager  v. Watson  (11  Conn.  168) 869,  873 

•  V.  Watson  (6  Conn.  168 ) 869,  878 

Gaillard  v.  Smart  (6  Cow.  386) SIO,  812 

Gaines  v.  McKinley  (1  Ala.  446) 348,  850 

V.  Miller  (111  U.  S.  395) 519 

Gaither  v.  Myrick  (9  Md.  118)    .490,  495,  502 

Gailbaith  v.  Gaines  (10  Lea,  068) 626 

V.  Elder  (8  Watts,  81) 878 

Qalbreath  u.  Cole  (61  Ala.  139) 100 

V.  Eperson  (1  S.  W.  Rep.  157) 477 

Galceran  w.  Noble  (66  Ga.  367) 714 

Gale  V.  Kalamazoo  (23  Mich.  344) 190 

V.  Tappan  (12  N.  H.  145) 240,  244 

Gallagher  v.  Williamson  (23  Cal.  331). .  883 
Gallery  v.  National,  &c..  Bank  (41  Mich. 

169) 729 

Gallinger  v.  Lake  Shore  Traffic  Co.  (67 

Wis.529) 164 

Galloway  v   Western,  &c.,  R.  R.  Co. 

(.")7Ga.  512) 671 

Gallup  V.  Lederer  (3  Thomp.  &  C.  710).  949 

Gait  V.  Galloway  (4  Pet.  331) 845 

Galveston,  &c.,    Ry  Co.  v.  Drew  (59 

Tex.  10) 660,  661 

Gammon  v.  Chandler  (30  Me.  153) .  .871.  873 

Gans  V.  St.  Paul  Ins.  Co.  (43  Wis.  108)..  931 

Gardener  v.  McCutcheon  (4  Beav.  534).  215 

Gardenhire  v.  Smith  (39  Ark.  280) 621 

Gardiner  v.  Davis  (2  C.  &  P.  49). . .  .755,  763 

Gardner  v.  Gardner  (5  Cash.  483) 96 

V.  Ogden  (22  N.  Y.  337) 463,  469,  791 

Garland  Ex  parte  (4  Wall .  333) 803 

V.  Reynolds  (20  Me  45)     753 

V.  Salem  Bank  (9  Mass.  408) 561 

V.  Wells  (15  Neb.  298)     394 

Garner  V.  Garner  (1  Lea,  29) 869 

Garnett  v.  Ferrand  (6  B.  &  C.  611).. 580,  582 

Garnsey  v.  Rogers  (47  N.  Y.  233)  567 

Garrard  v.  Hadden  (67  Penn.  St.  82). . .  282 

Garrett  v.  Handley  (4  B.  &  C.  666) 756 

V.  Trabue  (82  Ala.  227)     . .  .240,  246,  558 
Garretzen  v.  Duenckel  (50  Mo.  104). 734, 

735,  786 

Garrey  v.  Stadler  (67  Wis.  512) 601 

Garrison  v.  Combs  (7  J.  J.  Marsh.  84)..  432 
Garton  t).  Union  City  Bank  (34  Mich. 

279) 755 

Garvin  v.  Lowry  (7  D  &  M.  24) 819 

Garvey  v.  Jarvis  (46  N.  Y.  310) 162 

Gaston  V.  Drake  (14  Nev.  175) 28  80 

Gasway  v.  Atlantic,  &c.,  R.  R.   Co.  (58 

Ga.  216)  751 

Gaty  V.  Foster  (18  Mo.  App.  639) . . . .966,  967 

Gaudy  v.  Humphries  (35  Ala.  617) 71 5 

Gaussen  v.  Morton  (10  B.  &  C.  731) 206 

Gay  V.  Lloyd  (1  G.  Greene,  78) 685 

Gazette  Printing  Co.  v.  Morss  (60  Ind. 

153) 622 

Gelger  v.  Holies  (1  Thomp.  &  Co.  129). .  806 


TABLE    OF    CASES    CITED. 


Ivii 


SECTION 

General  Ins.  Co.  v.  United  States  Ins. 

Co.  (10  Bid.  517) 730 

Geohenu.  Dailey  (4  Ala.  336) 635 

George  v.  Olagett  (7  T.  R.  3.55) 773,  7.06 

V.  Gobey  (128  Mass.  289) 745,  746 

V.  McNeiIl(7  La.  124) 1009 

Georges  i>.  Georges  (18  Ves.  294) 862 

Georgia  Pac.  R.  R.  Co.  v.  Probst  (4  So. 

Rep.  711) 396 

Gerber  v.  Stuart  (1  Mont.  173) 443 

Gerhardt  v.  Boatmen's  Saving  Inst.  (38 

Mo.  60) 514 

German  Fire  Ins.  Co.  v.  Grunert  (112 

111.  68) 895 

Gerrard  v.  Moody  (48  Ga.  96) 554,  9.57 

Gerrish  v.  Maher  (70  111.  470) 378 

Getchell  v.  Clark  (5  Mass.  309) 871 

Getman  v.  Getman  (1  Barb.,  Ch.  499). ..  459 
V.  Second  National  Bank  (23  Hun, 

513) 730 

Gettins  v.  Scudder  (71  111.  86) 931 

Getzlaff  V.  Seliger  (43  Wis.  297) ...  883 

Gibson  V.  Erie  Ry  Co.  (63  N.  Y.  449). . .. 

65B,  659 

V.  Goldthwaite  (7  Ala.  281) 527 

V.    Manufacturers'    Ins.     Co.    (144 

Mass.  81) 232 

V.Miller  (29  Mich.  355) 786 

V.  Soper  (6  Gray,  279) 48,  50 

V.  Stevens  (8  How.  384) 1032 

V.  Winter  (5  B.  &  A<l.  96) 762,  10.i9 

Giddings  v  Eastman  (5  Paige,  561) 878 

Gihon  V.  Stanton  (9  N.  Y.  476)  682,  1029 

Gil  V.  Williams  (13  La.  Ann.  219) 22 

Gilbert  v.  Holmes  (64  111.  548) 220 

V.  Williams  (8  Mass.  51) . . .  .824,  826,  832 

Gilbraith  v.  Lineberger  (69  N.  C.  145)...  86 

Gilchrist  v.  Clarks  (8  S.  W.  Rep.  572)..,  966 

Gilham  v.  Robinson  (Ry.  &  M.  227) 6 

Gill  V.  Bicknell  (2  Cush.  3.55) 893 

V.  Brown  (12  Johns.  385) 659 

V.  Middle  ton  (105  Mass.  477) .. .  .489, 

490,  498,  500 

Gillaspie  v.  Kelley  (41  Ind.  161) 394 

V.  Wesson  (7  Port.  4.54) 550,  558 

Glllenwaters  v.  Miller  (49  Miss.  150). . . . 

457,  459 

Qillett  V.  Corum  (7  Kans.  156) 967 

V.  Logan  Co.  (67111.  256) 34 

V.  Missouri  Valley  R.  R.  Co.  (55  Mo. 

315) 741 

Gilliam  v.  Brown  (43  Miss.  641 ) 526 

V.  South,  &c.,  Alabama,  R.  R.  Co. 

(70  Ala.  263) 740 

Gilliland  v.  Ga=que  (6  S.  C.  406)...  813,  819 

Gillis  V.  Bailey  (21  N.  H.  149) 185,  998 

V.  Pennsylvania  R.  R.  Co  (59  Penn. 

St.  129) 666 

Gillshannon  v.  Stony  Brook  R.  R.  Co. 

(10  Cush.  2i8) 668 

Oilman  V.  Gai-iK 29  Ind.  291) 607 

V.  Oilman  (126  Mass.  26) 810 

V.  Hovey  (26Mo.  280) 829 

Gilmore  r.  DriscoU  (122  Mass.  208) 571 

Gilpin  V.  Howell  (5  Penn.  St.  41) 769 

Gilson  v.  Col  lins  (66  111.  136) 506 

V.  Gwinn  (107  Mass.  126) 677 

Girardt).  Hirsch  (6  La.  Ann.  651) 224 

V.  Taggart  (5  S.  &  R.  19) 769,  1042 

Gist  V.  Hanly  (33  Ark.  233) 869 

Given  v.  Lemoine  (35  Mo.  110) 990,  1018 

Givens  v.  Briscoe  (3  J.  J.  Marsh.  529). .  813 

Givhan  v.  Dailey  (4  Ala.  336) 635 

Gladstone  v.  King  (1  M.  &  S.  34) 725 

Gleason  v.  Dodd  (4  Mete.  333) 810 

Glen  V.  Hope  Ins.  Co.  (56  N.  Y.  379)  ...  567 
Glentworth  v.  Luther  (21  Barb.  147). . .. 

966,  967 

Glenn  ».  Davidson  (37  Md.  365) 969 

V.  Savage  (13  Pac.  Rep.  442) 9 

Goddard  v.  Gardner  (28  Conn.  172) 882 


SEOnOM 

Goddard  v.  Grand  Trunk  Ry  Co.  (57  Me. 

202) 734.  740,  741,  T61 

Godefroy  v.  Dalton  (6  Bing.  460) . . .  .824, 

825,827,  881 

V.  Jay  (5M.  &  P.  284) 828 

Godfrey  v.  Furzo  (3  P.  Wms.  185) 1083 

V.  Saunders  (3  Wills,  94) 77 

Godman  v.  Meixsel  (65  Ind.  32) 652 

Godwin  v.  Frances  (L.  R.  5  C.  P.  295). ..  92 

Goell  V.  Morse  (125  Mass.  480) 71 

Goffev.  Gibson  (18  Mo.  App.  1) 968 

Gokey  v.  Knapp  (44  Iowa,  32) 746 

Gold  Mining  Co.  v.  National  Bank  (98 

U.  S.  640)  118,  155 

V.  Rocky  Mt.  Nat.  Bank  (2  Col.  565)  156 

Golden  v.  Levy  (1  N.  C.  L.  527) 1043 

V.  Newbrand  (52  Iowa,  59) 746 

Goldlng  V.  Merchant  (43  Ala.  705) 279 

Goldsborough  v.  Turner  (67  N.  C.  403).  376 
Goldsmith  v.  Manheim  (109  Mass.  187).. 

558,  1051 
Gonsior  v.   Minneapolis,  &c.,  Ry  Co. 

(86  Minn.  385) 668 

Gonzales  v.  Broad  (57  Cal.  224) 967 

Goodale  v.  Wheeler  (11  N.  H.  424) 324 

Goodenough  v.  Thayer  (132  Mass.  152).  448 

Goodenow  v.  Tyler  (7  Mass.  86) 281, 

338  990 

Goodloe  V.  Godley  (13  S.  &  M.  233). . . . !  887 
Goodhttle  v.  Woodward  (3  B.  &  Aid. 


Goodman  v.  Pocock  (15  A.  &  E.,  N.  S. 

576) 621.  622,  623 

w.  Sayers  (2  J.  &  W.  219) 188 

V.  Walker  (30  Ala.  482)     .  755,  824, 

825,  826,  827,  829 

Goodrich  v.  Willard  (7  Gray,  183)  674 

Goodridge  v.  Holladay  (18  111.  App  363)  967 
Goodspeed  v.  East  Haddam  Bank  (22 

Conn.  530) 741 

Goodwillie  v.  Mc(;arthy  (45  111.  186)  ...  481 

Goodwin's  Appeal  (117  Penn.  St.  514)..  883 

Goodwin  v.  Kelly  (42  Barb.  194) 61 

Goomv.  Aflalo  (6  B.  &  C.  117) 932 

Gordon  v.  Bulkley  (14  S.  &  R.  331) 93 

V.  Coolidge  (1  Sumn.  537) 616 

V.  Farrar  (2  Doug.  511) 588 

V.  Wright  (29  La.  Ann.  812) 1011 

V.  Zacharie  (16  La.  Ann.  17) 532 

Gorham  v.  Gale  (7  Cow.  739) 816.  820 

V.  Gross  (125  Mass.  232). 747,  748 

Gorman  v.  Scholle  (13  Daly.  516) 967 

Gormley  v.  Ohio,  &c.,  Rv  (72  Ind.  31). .  667 
Gormly  v.  Vulcan  Iron  Works  (61   DIo. 

492) 664,  605,  R'iS 

Gorum  v.  Carey  (1  Abb.,  Pr.  285).  1041 

Goss  V.  Broom  (31  Minn.  484) 9t;6 

V.  Stevens  (32  Minn  472) 135,  167 

Gosselin  v.  Chicago  (lii3  ill.  623) 330 

Gott  u.  Dinsmore  (111  Mass.  45) 714 

Gould  V.  Hammond  (1  McAll.  285) 688 

V.Norfolk  Lead  Co.(9  Cush.  338),  102,  391 
Gousiorv.  Minneapolis,  &c.,  Ry  Co.  (31 

N.  W.  Rep.  515) 66S 

Governor  v.  Daily  (14  Ala.  469) 60 

Gowen  Marble  Co.  v.  Tarrant  (73  111. 

608)  9" 

Gower  v.  Andrews  (59  Cal.  119) 45fi 

V.  Emery  (18  Me.  79) 816 

Grace  v.  American  Ins.  Co.  (109  U.  S. 

278) 931 

Grady  v.   American    Ins.   Co.  (60  Mo. 

116)  193 

Gragg  V.  Brown  (44  Me.  157) 1037 

Graham  v.  Ackroyd  (10  Hare,  192). 682, 

1014,  1029 
V.  Duckwall  (8  Bush,  12). . .  .339, 756, 

949,  986,  991,  994,  1039,  1042,  1043 

V.  Holt  (3  Ired.  300) 93 

V.  United  States  Saving  Inst.  (48 

Mo.  186)..  .  382 


IVlll 


TABLE    OF    CASES    CITED. 


SECTION 

Granger  v.  Batchelder  (54  Vt.  248) 813 

V.  Hathaway  (17  Mich.  500)..   ......    CM 

Grannis  v.  Branden  (5  Day,  260) . . .  .495,    49b 

Grant  v.  Fletcher  (5  B.  &  C.  436) . . . ....    932 

w.  Ludlow  (8  Ohio  St.  48) 497,    500 

V.  Norway  an  C.  B.  665) <17 

V.  Seitsinger  C-  Penn.  St.  525) 4b7 

Graul  V.  Struzel   .53  Iowa,  712) 350 

Graver's  Appeal  (50  Penn.  St.  189). ...      529 

Graves  v.  Horton  (35  N.  W.  Rep.  568) . .      80, 

85,  101,  274.  312,     348 

V.  Lepg(2H.  &  N.210) 947 

Grau  V.  McVicker  (8  Biss.  13) 447 

Gray  w.  Agnew  (95  111.  315) 994 

V.  Conyers(^OGa.  349) 8.53 

V.  Emmons  (7  Mich.  533) 877,    878 

V.  Hook  (4  Com.  419) 20,  28,    645 

V.  Murray  (3  Johns.  Ch.  167) 194, 

195,  510,  954,  1011 

V.  Otis  (11  Vt.  628) 61,      62 

w.  PuUen  (5  B.  &  S.  970) 747 

V.  Van  Blarcom  (29  N.  J.  Eq.  454)..    745 

V.  Wasa  (1  Me.  257) 818 

Graydon  v.  Patterson  (13  Iowa  256)  ...  375 
Grayson  v.  Wilkinson  (5  S.  &  M.  268). ..  835 
Great  Western  By  v.  Wheeler  (30  Mich. 

419) 726 

Greely  V.  Bartlett  (1  Greenl.  173) 281, 

338,  485,  495,  990,  1006,  1012,  1013,  1020 
Green  v.  Banta  (48  N.  Y.  Super,  156). . .    667 

V.  Bartlett  (14  C.  B.,  N.  S.,  681) 966 

V.  Cape  May  (41  N.  J.  L.  45) 118 

V.  Clark  (5  Denio,  503) 171 

V.  Gilbert  (21  Wis.   395) 631,    6,35 

V.  Hulett(22  Vt.  188) 619 

«.  Kopke  (18  C.  B.  549) 448,    5.56 

V.  Lucas  (31  L.  T.,  N.  S.  731) 970 

u.  Miller(6  Johns.  39) 77 

V.  Ophir,  &c.,  Co.  (4:^  Cal.  522) 714 

V.  Reed  (3  F.  &  F.  226) 970 

V.  Talbot  (36  Iowa,  499) 581 

V.  Tanner  (8  Mete.  411) 699 

V.  Winter  (1  Johns.  Ch.  26) 463 

V.  Williams  (21  Kan.  64) 533 

Green,    &c.,    Ry   Co.    v.  Bresmer   (97 

Penn.  St.  103) 670 

Greene  v.  Goddard  (9  Mete.  212) 653 

V.Haskell  (5  R  L  447)  791 

V.  Linton  (7  Port.  133) 640 

V.  Minneapolis   Ry  Co.    (31    Minn. 

248)...   660.    661,     670 

Greenfield  Bank  v.  Crafts  (4  Allen,  447)    161 
V.  Simons  (133  Mass.  415). ..463,  469,    470 
Greenhood  v.  Keator  (9  111.  App.  183' 

339.    S40 
Greenleaf  v.  Illinois  Cent.  R.  R.  Co.  (29 

Iowa  14) 670 

V.  Moody  (13  Allen,  363) 481 

Qreenough  v.  Gaskell  (1  M.  &  K.  102)..  881 
Qreenstine  v.  Borchard  (50  Mich.  4-34).  485 
Qreentree  v.  Rosenstock  (61  N.  Y.  583),  1024 
Greenwald  v.  Marquette,  &c.,  R.  R.  (49 

Mich  197) 667 

V.  Metcalf  (28  Iowa,  363) 384 

Greenwood  v.  Burns  (50  Mo.  52) 3.54,    375 

Greenwood  v.  Spring  (54  Barb.  37.')). 67,    953 

Gregg  t'.  W^Us  (10  A.  &  E.  90)     787 

Gregory  v.  Brooks  (37  Conn.  365) 588 

V.  Stryker  (2  Den.  638) 674,    684 

V.  Wendell  (39  Mich.  337) 35 

Greve  v.  Coffin  (14  Minu.  345) 820 

Greyson  r.  Bucks  (4  Q.  B.  747) 932 

Grice  v.  Kenrick  (L.  R.  5  Q.  B.  340) 756 

762,  898,  1039 

Grider  ».  Tally  (77  Ala.  422)  580 

588,  590,  391,    592 

Qriffln  v.  Blanchard  (17  Cal.  70) 536 

V.  First  National  Bank  (74  111.  259) . .     599 

V.  Ransdell  (71  Ind.  440) 63 

V.  Weatherby  (L.  R.  3  Q.  B.  753)....    567 
QrifQfth  V.  Johnson  (2  Harr.  177) 561 


SICCTIOJ^ 

Griffiths  V.  Dudley  (9  Q.  B.  Div.  357).. . .    671 

IK  Hardenbergh  (41  N.  Y.  464) 654 

V.  London,  &c..  Docks  Co.  (13  Q.  B. 

Div.  259) 659 

Grignou  v.  Schmitz  (18  Wis.  620) 810 

Grigsl)y  V.  Nanfe(30  Ala.  347) 755 

Grindley  v.  Barker  ( 1  B.  &  P.  229) 78 

Grinnell  v.  Buchannan  (1  Daly,  538) ....     193 

V.  Cook  (3  Hill.  485) ...674,677,     684 

V.    Western    Union   Tel.    Co.    (113 

Mass    299) .  281 

Grlswold  V.  Haven  (25  N. 'y.'595) .'.'.'.113,    717 

(irizzle  v.  Frost  (3  F.  &  F.  622) 659 

Groenvelt  v.  Burwell  (1  Salk.  396). 580,.    585 
Grogan  v  San  Francisco  (18  Cal.  590). .    126 

V.  Wade  (3  ."^lark.  413) 770 

Groover  v.  Warfleld  (50  (>a.  644), 

756,  763,  1040 

Gross  In  re  (L.  R.  6  Ch.  App.  632) 781 

Grosvenor  v.  Danforth  (16  Mass.  74) . . .  813 
Groton  v.  Waldoborough  (11  Me.  306). .  30 
Grove  v  Dubois,  (1  T.  R.  112).  520,  756,  1014 
V.  Hodges  (55  Penn.  St.  504)  ...  136,  137 
V.  Van  Duyn  (42  N.  J.  L.  654)  .  .580,  588 
Grover  &  Baker  S.  M.  Co.  v.  Polhemus 

(34  Mich.  247) 84,  100,  337,    846 

Grubbs  v.  Wiley  (1  r  Miss.  29) 419 

Gruby  v.  Smith  (13  111.  App  43) 878 

Gruman  v.  Smith  81  N.  Y.  25) 936 

Grumley  v.  Webb  (44  Mo.  444) 458,    461 

V.  Webb  (48  Mo.  562) 8l8 

Grand  v.  Van  Vleck  (69  111.  4T9) 127 

Guelich  V.  National  Bank  (56  Iowa,  434), 

514,    624 

Guernsey  v.  Cook  (117  Mass.  548) 447 

V.  Cook  (120  Mass.  501) 29 

Guerreiro  v.  Peile  (3  B.  &  Aid.  616) 8.52, 

906,  997,    998 
Guest  V.  Burlinsrton  Opera  House  Co. 

(38  N.  W   Rep.  158) 699 

Guille  V.  Swan  (19  Johns.  382) 783 

Gulfordv.  Stacer  (53  Ga.  618) 873 

Gulick  V.  Grover  (33  N.  J.  L.  463) 6, 

105,  275,  307,  893,  400,    645 

Gullett  V.  Lewis  (3  Stew.  23)  875 

Gundlachu.  Fischer  (59  111.  173) 200 

Gunn  t).  Cantine  (10  Johns.  387) 758 

Gunnu  Howell  (35  .-Via.  144) 632 

Gunnaidson  v.  Nyhus  (27  Minn.  440) 892 

Gunter  v.  Aster  (4  J.  B.  Moore,  12) 798 

V.  Granite ville  Mfg  Co.  (18  S.  C.  363) 

664,  665,  667,  668 
Gustine  v.  Stoddard  (23  Hun,  99).  . .  8.56 
Guthrie  v.  Armstrong  (5  B.  &.  Aid.  628)      77 

V.  Imbrie  (13  Oreg.  182) 436 

V.  Louisville,  &c.,  R,  R.  Co.  (11  Lea, 

373 670 

V.  Merrill  (4  Kan.  187) 648 

Gutlett  V.  Lewis  (3  Stew.  23) 819 

Guy  V.  Oakley  (13  .Tohns.  331) 1043 

Guy  on  v.  Lewis  (7  Wend.  26) 702 

Gwinne  v.  Poole  (Lutw.  290) 580 

Gwyu  V.  Richmond  &  Danville  R.  R. 

Co.  (85  N.  C.  429) 687 

H 

Haas  V.  Damon  (9  Iowa,  589) 533 

528,  530,  531,  533,  955,  1021 

V.  Fenlon  (8  Kans.  601) 28,  29 

Hack^-tt  V.  Reynolds  (114  Penn.  St.  328)  782 

Hacket  v.  Tilley  (11  Mod.  93) 6.H 

Hackleman  v.  Moat  (4  Blackf.  Ind.  164),  532 

Hacock  V.  Fairfield  i30  Me.  229) 443 

Hadden  V.  Clark  (2  Grant.  107) 813 

Hadwin  v.  Fisk  (1  La.  Ann.  43) 994 

Hagan  v.  Providence.  &c.,  R.  R.  Co.  (3 

R.  L8P!> 751 

Hagedorn  v.  Oliverson  (3  M.  &  S.  485).  756 

Hager  v.  Catlin  (18  Hun,  448) 28 

V.  Cochran  (66  Md.  253) 809 


TABLE    OF    CASES    CITED. 


lix 


SECTION 

Hagrer  v.  Rice  (4  Colo.  00) .  .439,  44 1 ,  442,  443 
Hague   V.    Philadelphia  (48  Penn.  St. 

528) 118 

Halght  V.  Holcomb  (16  How.  Pr.  173)..  873 

V.  McVeagh  (69  111.  624) 63 

Haile  v.  Pierce  (32  Md.  327)441,  443,  443,  449 

Haines  V.  Busk  (5  Taunt.  191)...   39 

V.  Lewis  (54  la.  307) 27,  3.' 

V.  Pohlmann  (25  N.  J.  Eq.  179) 373 

Halden  v.  Crafts  (4  E.  D.  Smith,  490). . .  533 

1024,  1025 

Hale  V.  Woods  (10  N.  H.  470). .  .417,  421,  423 

Hall  t>.  Bank  (5  Dana,  2.58) 394 

V.  Bliss  (118  Mass.  554) 265 

V.  Grand  ill  (29  Cal.  507) 650,  558 

V.  linch(29  Wis.  278) 599 

V.  Hall  (44  N.  H.  29.3) 599 

«.  Harper   (17111.82) 164 

V.  Hinks  (21  Md.  406) 1034 

V.  Huntoon  (17  Vt.  244)  . .  .  .448,  546,  654 

V  Lauderdale  (46  N.  Y.  70),  546,  558,  559 

V.  Laver  (1  Hare,  571) 870 

V.  Mar.ston  (17  Mass.  574) 519 

V.  Noyea  (3  Bro.  Ch.  483) 469 

V.  Smith  (2  Ring.  156) 694 

V.  Soule  (11  Mich.  496) 211 

V.  Storrs  (7  Wis.  2.53) 195, 

281,  352,  381,  475,  485,  990,  1010 

Hallett  V.  Oakes  (1  Cash.  296) 841 

Hallett's  Estate  (13  Ch.  D.  696) 781 

Hailey  v  Troester  (72  Mo.  73) 50 

Halloway  v.  Lacy  (4  Humph.  468). . .  .  635 

Hall's  Appeal  (4  Wright,  Penn.  409).. .  469 

Halsted  v.  Rabb  (8  Porter,  63) 634 

V.  State  (12  Vroom,  552)   748 

Hal verson  v.  Nisen  (3  Saw.  562) 667 

Ham  V.  Boodv  (20  N.  H.  411) 161 

Hamilton  v.  Bell  (10  Exch.  545) 1044 

V.  Campbell  (9  La.  Ann.  531) 1035 

V.  Frothingham  (59  Mich.  253) 603 

V.  Hooper  (46  Iowa,  515) 63 

V.  People  (29  Mich.  173) 885 

V.  Vouu-ht  (34  N.  J.  L.  187) 892 

V.  Williams  (26  Ala.  527) 5S0 

V.  Wright  (37  N.  Y.  502) 809,  810 

Hamlin  v.  Sears  (82  N.  Y.  327).  127,  155,  162 

V.  Schulte  (31  Minn.  48H) 9i)6 

V.  Schulte  (34  Minn.  534) 967 

Hammatt  v.  Emerson  (27  Me.  308) 714 

Hammond  «.  Christie  (5  Robt.  160) 626 

V.  Hussey  (51  N.  H.  40) 497 

V.  Hannin  (21  Mich.  374)81,  141,  167,   179 

V  Howell  (1  Mod.  184) 580 

Hammonds  v.  Barclay  (2  East.  227). 673,  1052 

Hamond  v.  Holiday  (1  C.  &  P.  384) 975 

Hampton  v  Matthews  (14  Penn.St.  105)  3.55 

V.  Moorhead  (62  Iowa,  91) 326 

Hamrick  v.  Combs  (14  Neb.  381) 819 

Hancock  v.  Byrne  (5  Dana,  Ky.  618). . .  224 

V.  Fairfield  (30  Me.  299) 443 

r.  Yunker  (83  Ul.  208) 419 

Handy  v.  Johnson  (5  Md.  4.50) 715 

Handyside  V.  Cameron  (21  111.  588) 96 

Haney  v.  Caldwell  (35  Ark.  156) 212 

V  Manning  (21  La.  Ann.  166) 38 

Hanford  v.  McNair  (9  Wend.  54) ...  .93,  137 

Hanger  v.  Fowler  (20  Ark.667) 872 

Haiikins  v.  Baker  (46  N.  Y.  668) 167 

Hanks  v.  Drake  (49  Barb.  186) 164,  171 

Hanna  v.  Collins  (69  Iowa,  61) 966 

V.  Phelps  (7  Ind.  21)  680,  681 

Hannan  v.  Moran  (15  West  Bep.  211) 

612,  967 

Hannum  v.  Curtis  (13  Ind.  206) 531 

Hanover  R.  Co.  v.  Coyle  (55  Penn.  St. 

402) 716 

Hanrathy  v.  Northern,  &c.  R.  R.  Co. 

(46Md.  492) 656,  667 

Hanson  v.  European,  &c.  R.  R.  Co.  (62 

Me.  84) 740,  742  751 

V.  Hoitt  (14  N.  H.  56) 813 


SKOTION 

Hanson  v.  Roberdeau  (Peake's  N.P.  120)  913 
Hapgood  V.   Batcheller  (4  Mete.  576) 

990,  1030 

Harbert  u  Nelll  (49  Tex.  143) 990 

Hard  v.  Vermont,  &c.  R.  R.  Co.   (32  Vt. 

473) 668 

Hardee  t>.  Hall  (12  Bush,  Ky.  327) 311 

Hardesty  v.  Newby  (28  Mo.  567) 383 

Hardeman  v.  De Vaughn  (49  Ga.  596). . .  1035 

V.  Ford  (13  Ga.  205) 129 

Hardin  v.  Ho-Yo-Po-Nubby'a  Lessee 

(27  Miss.  567) 809,  810 

Hardy  v  Keeler  (56  111.  152) 639 

u  Pitcher  (57  Miss.  18)  ....441,  442,  443 

V.  Waters  (33  Me.  450) 53 

Hargrave  v.  King  (5  Ired.  Eq.  430).  .457,  4.59 

Harington  v.  Hnf^gart  (1  B.  &  Ad.  577).  9U7 

Harker  v.  Dement  (9  Gill.  7) . . .  100,  .52,5,  705 
Harkins  v.   Standard  Su?ar  Refinery 

(122  Id.  400) 667 

Hai-lan  v.  Ely  (68  Cal.  522). .   .  .352,  381,  475 

Harlow  r.  S|iarr  (15  Mo.  184)..9t)7,  917,  UV.) 

Harman  r.  Brotherson  (1  Den  537) 580 

Harnickell  v.  Orndorf  (35  Md.  341) 250 

Harmon  v.   Salmon  (Fall's  Mnfg,  C!o. 

(35  Me.  447) 611 

Harner  v.  Dipple  (31  Ohio  St.  72) 55 

Harness  v.  State  (57  Ind.  1)  888 

Harp  V.  Osgood  (2  Hill.  216) 755 

Harper  tj.  Dail  (52  N.  C.  394) 63 

u.  Devene  (lOLa.  Ann.  724) 116 

V.  Harvey  (4  W.  Va.  539) 375,  819 

V.  Hassard  (113  Mass.  187) 632 

V.  Indianapolis,  &c.  R    U.  Co.  (47 

Mo.  567) 662.  664,  66,5,  667 

V.  Little  (2  Greenl.  14)     226, 

240,  244,  245,  550 

V.  Perry  (28  Iowa,  58) 878 

V.  Ragan  (2  Blackf.  39) 755 

V.Ray  (27  Miss   622) 647,  648 

Harralson  v.  Stein  (50  Ala.  347),185, 194,  998 

Harrey  v.  Shelton  (7  Beav    455)    188 

Harriman  v.  Stowe  (57  Mo.  93) 715 

Harrington  v.  Commissioners,  &c.  (2 

McCord,  400)  688 

V.  Fall  River  Iron  Works  (119  Mbss 

82) 640 

V.  Gies  (45  Mich.  374) 623 

V.  Hogart  (1  B  &  Ad.  577) 907 

V.  Victoria   Graving    Dock   Co.  (3 

Q.  B.  Div.  549) 37,  797 

Harris  v.  Baker  (4  M.  &  S.  27) 594 

V.  Cuddy  (21  La.  Ann.  388) 234 

Hari  ow  v.  Farrow's  Heirs  (7  B.  Mon. 

126) :  819 

Harris  v.  Gamble  (0  Ch.  Div.  748) 643 

V.  Miner  (28  111.  135)      149 

V.  Nickerson  (L.  R.  8  Q.  B.  286) 916 

V.  Osbourn  (2  Cromp.  &  M.  629)  . . . 

834,  858 

V.  Roof  (10  Barb.  489) 645 

Harrison  v.  Ross  (44  N,  Y.  Super.  Ct. 

230)...     773 

Harris  v.  Simmerman  (81  111.  413) 149 

V.  Pimonson  (28  Hun  N.  Y.  818) 22 

V.  Tremenheere  (15  Ves   Jr.  34) 878 

V.  Woodruff  (124  Mass  206) .39,  674 

Harrison  v.  Collins  (86  Penn.  St.  153) 

747,  748 

t>.  Long  (4  Desau.  110) 532 

V.  McHenry  (9  Ga.  164)  114,  115,  462, 

463,  713,  798.  953 

V.  Missouri  Pae.  Ry  Co.  (74  Mo.  otM)  896 

V.  Mitchell  (1.^  La.  Ann.  260) 127 

V.  Smith  (83  Mo.  210) 536 

Harshaw  v.  Wt-Kfsson  (65  N.  C.  688). 93,  96 
Harshey  v.  Blackmarr  (20  Iowa,   161) 

809,  810 

Hart  V.  Aldridge  (Cowp.  54)  793 

V.  Bank  (33  Vt.  252) 721,  722,  729 

V.  Dixon  (5  Lea,  336) 165 


TABLE    OF    CASES    CITED. 


SECTION 

Hart  V.  Frame  (6CI.&  Fin.  193) 827 

V.  Krancis(2  Col.  719) 648 

V.  Hoffman  (44  How.  Pr.  168) 966 

V.  IludsoQ  {«  Duer.  294) 354 

V  Ten  Eyck  (2  Johns.  Ch.  62) . .  .469,    529 

V.  VidaUGCal.  56) 849 

u.  Woods  (7  Blackf .  568) 893 

Harrerw  Morris  (18  Ohio  St.  492) 835 

Hartford  Fire  Ins.  Co.  v.  Reynolds  (36 

Mich.  502) 881,88-2,    931 

V.  Wilcox  (57  III.  180) 77,  251.     301 

Hartley's  Appeal  (53  Penn.  St.  212)  204,    207 

Hartshorn  v.  Thomas  (10  Atl.  Rep.  843)    204 

Harvey  v.  McAdams  (32  Mich.  472).. 45,      70 

V.  N.  Y.  &c.  R.  K.  (88  N.  Y.  481). ...     667 

V.  Stevens  (43  Vt.  6J5) 893 

V.  Turner  (4  Kawle,  2*3) . . . .  474,  538,  1012 
Has3  V.   Philadelphia,   &c.   Steamship 

Co.  (88  Penn  St.  2ti9) 747 

Haskell  V.  Whitney  (12  Mass.  47) 812 

Haskins  V.  Royster  (70  N.  C.  601) 793 

HaskiD  V.  Elliott  (58  Ind.  493) 775 

Hastings  v.  Bangor  House  (18  Me.  436) 

148,    150 

V.  Halleck  (13  Cal.  20.3) 825 

Hatch  V.  Barr  (1  Ohio,  IB'J) 421 

V.  Coddington  (95  U.  S.  48) 224,    2-iO 

V.  Dwight  (17  Mass.  289) 421 

V.  Smith  (5  Mass.  42) 550 

V.  Squires  (11  Mich.  185) 100 

V.  Taylor  (10  N.  H.  538) 282 

Hatcher  v.  Comer  (73  Ga.  418) 1008,  1009 

HaichHttv.  Molten  (76  Ala.  410) 246 

Hatfl -Id  V.  McWhotter  (40  Ga.  269) ....    527 

V.  Kevnolds  (34  Barb.  612) 373 

Hathaway  v.  Johnson  (55  N.  Y.  93) ....    746 
V.  Michigan  Cent.  R.  R.  Co.  (51  Mich. 

2.53) 656,     659 

Hatton  V.  Robinson  (14  Pick.  416)  880, 

8S2.  883,  885,    885 

Hatzfield  v.  Gulden  (7  Watts,  152) 33 

Haughton  v.  Matthews  (3  B  &  P.  494).     673 

V.  Maurer  (.")5  Jlich.  323) 100 

Haussw.  Niblack  (80  Ind.  407) 148 

Hauxhurst  v.  Hovey  ^26  Vt.  544) 5:^2 

Haven  v.  Brown  (7  Greenl.  421) 714 

V.  Snow  (14  Pick.  28) 722 

Haverhill  Ins.  Co.  v.  Newhall  (1  Allen, 

Mass.  130) 432,     438 

Hawes  v.  Foster  (1  M.  &  R.  368) 932 

V.  Knowles  (114  Mass.  518) 751 

Hawker  t'.  Baltimore  &  Ohio  R.  R.  Co. 

(15  W.  Va.  628) 714,     715 

Hawkes  v.  Dunn  (1  Cromp.  &  Jer.  519)    687 

Hawkins  V.  Baker  {46  N.  Y.  666) 167 

V.  Chace(19Pick.  502) 89,      92 

V.  Lange  (22  M  inn.  557) 164 

Hawley  r.  Keeler  (35  N.  Y.  114) 77 

Hay  V.  Goklsmidt  (1  Taunt.  349) 306 

V.  Mayer  (8  Watts,  203) 318 

Hayes  v.  Brubaker(65Ind.  27) 438 

V.  Porter  (22  M^.  371) 590 

Hayden  v.  Grillo  (26  Mo.  App.  289) 966 

V.  Madison  (7  Greenl.  78) 636 

V.  S.aithviUe  Mfg  Co.  (29  Conn.  548) 

656,  659,     670 

Haynie  v.  Johnson  (71  Ind.  394) 791 

V.  Waring  (29  Ala.  265)   497 

Hays  V.  Houston,  &c.  R.  R.Co.  (46  Tex. 

272) 751 

V.  Riddle  (1  Sandf.  248) 678 

«.  Stone  (7  Hill,  128) 533 

V.  Warren  (46  Mo.  189) 1024 

Hay  ward  w.  Leonard  (7  Pick.  181) 636 

V.  National  Ins.  Co.  (52  Mo.  181)....    721 

Hazard  v.  Spears  (4  Keyes.  485) 171 

V .  Tread  well  (1  Stra.  506) 87 

Hazeltine  u.  Miller  (44  Me   177)  307 

Hazelton  v.  Batchelder  (44  N.  Y.  40). . .     169 
Haze  well  v.  Coarsen  (45  N.  Y.  Supr.  Ct. 

22) :. 387 


BBOTION 

Hazlitt  V.  Gill  (5  Robb.  611) 856 

Heald  v.  Kenworthy  (10  Exch.  739). 697.    6'J8 
Heard  v.   Brewer  (4  Daly,  136) ....  67(3, 

1034,  1041 

V.  March  (12  Cash.  580) 77 

V.  Pilley  (L.  R.  4  Ch.  App.  .548) .  .89,    459 

Hearsev  v.  Pruyn  {7  Johns.  179) 561 

Heath  v.  Bates  (49  Conn.  342) 838 

V.  Crealock  (L.  R.  18  Eq.  215) 536 

V.  GosUn(80  Mo.  310) 72,      73 

v.  Nutter  (50  Me.  378) 93,    137 

Hebbard  v.  Haughian  (70  N.  Y.  54). . . .  883 
Heber  v.  United  States  Flax  Mfg  Co. 

(13  R.  I.  303) 638 

Heck  V.  Shener  (4  S.  &  R.  249)  648 

Hedden  v.  Griffin  (136  Mass.  229). ...571,    574 

Heddens  v.  Younglove  (46  Ind.  212) 

522,     531 
Hefferman  v.  Burt  (7  Iowa,  320) . . .  .810,    812 

Heffner  v.  Brownell  (70  Iowa,  591) 432 

Hefner  v.  Vandolah  (62  III.  483) 116 

Heine  v  Chicago,  &c.,  Ry.  (58  Wis.  525)  667 
Heinemann  v.  Heard  (50  N.  Y.  3.5) .  .490,    495 

Heister  v.  Jlount  (17  N.  J.  L.  438) 869 

Helf  rich  v.  Williams  (84  Ind.  553) 667 

Helyear  v.  Hawke  (5  Esp.  72) 350 

Hemstreet  v.  Burdick  (90  111.  4.50)... .98,  821 
Henchey  V.  Chicago  (41  111.136)  ...870,  871 
Henck  v.  Todhunter  (7  H.  &  J.  275). . . .  808 
Hendrick  v.  Whittemore  (105  Mass.  28).  685 
Henderson  v.  Cummings  (44  111.  325)  . . 

130,    135 

V.  Ford  (46  Tex.  627) 268 

V.  Hydraulic  Works  (9  Phil.  100). . .    214 

V.  Mflyhew  (2Gill.  393) 106,  696,    699 

V.  State  (70  Ala.  23) 715 

t).  Stiles  (14  Ga.  135) 635 

V.  Terry  (62  Tex.  281) 881 

Heney  t).  Sargent  (.54  Cal.  396) 62 

Henke  v.  McCord  (55  Iowa,  378).... 581,    586 

Henn  v.  Conisbv  (1  Ch.  Cas.  93) 817 

Henry  u.  Fine  (23  Ark.  417) 48 

V.  Heeb  (14  West.  Rep.  84) 116 

V.  Raiman  (25  Pa.  St.  354) 878 

V.  Ritenour  (31  Ind.  136) 49 

Henshaw  v.  Noble  (7  Ohio  St.  231) 539 

Henson  v.  Hampton  (32  Mo.  408) 635 

Hepburn  v.  Dunlop  (1  Wheat.  179) 155 

Herlihy  v.  Smith  (116  Mass.  265) 738 

Herman  v.  Martineau  (1  Wis.  151).. 713, 

753,    798 
Hermann  v.  Niagara  F.  Ins.  Co.  (100  N. 

Y.411) 931 

Herrick  v.  Gallagher  (fiO  Barb.  566) ....     561 

Herriman  v.  Shomon  (24  Kan  387) 819 

Herring  v.  Hottendorf  (74  N.  C.  .588) ...    376 
V.  Skaggs  (62  Ala.  180)  ....848,  350, 

750.  947,  992 
Herrington  v.  McCoUum  (73  111.  476). . .  722 
Hertzog  v.  Hertzog  (29  Penn,  St.  465)..     600 

Hesiop  V.  Metcalfe  (3  Id.  183) 867 

Hewett  V.  Brown  (21  Minn.  163) 971 

Hewes  u.  Doddridge  (1  Robt.  143)  807 

Hewison  v.  Guthrie  (2  Ring.,  N.  C.  755)    680 

Hexamer  v.  Webb  (101  N.  Y.  377) 747 

Hey  man  v.  Neale  (2  Camp.  337) 932 

Heyn  v.  O'Hagen  (60  Mich.  157)....  155, 
^  157,     161 

Heywood  v.  Tillson  (75  Me.  225) 616 

Heyworth  v.  Knight  (17  C.  B.,  N.  S.  298)    932 
Hibblewhite  v.  McMorine  (6  M.  &  Vf. 

200) 94 

Hicks  V.  Dorn  (42  N.  Y.  51) 189 

V  McGarry  (38  Mich.  667) 567 

Hicks  V.  Mintum  (19  Wend.  5.50) 905 

V.  Whitmore  (12  Wend.  548) 893 

Hidden  v.  Jordan  (21  Cal.  92) 459 

U.Waldo  (55  N.  Y  294) 1023 

Hie-n  v.  Mill  (13  Ves.  Jr.  120) 721 

Hi:!Stand  V.  Kuns  (8  Blackf  .345) 51 

Hi.ggins  V.  Lodge  (11  Atl.  Rep.  846)....    915 


TABLE    OF    CASES  CITED. 


Ixi 


SECTION 

HIgglns  V.  McCrea  (116  U.  S.  671) 1048 

V.Moore  (34  N.  Y.  417) 218 

338,  339,  4S6,  949,  966 

W.Scott  (2  B.  &Ad.  413) 867,  874 

V.  Senior  (8  M.  &  W.  834) 430,  449, 

.55S,  696,  701,  769 
V.  Waterviiet  Turnpike  Co    (46  N. 

Y.  23) 734,  735,  736,  743,  751 

Highgate   v.    Archway   Co.  (5    Taunt. 

793)  895 

Highway  Commissioners  v.  Van  Dusan 

(40  Mich.  429) 118 

HiU  V.  Brinckley  (10  Ind.  103) 870 

V.  Day  (34  N.  J.  Eq.  1.50) 2.54 

«.  aray(l  Stark.  434) 912 

V.  Gust  (.5.5  Ind.  45) 658,  659 

V.  Hill  (58  III.  239) 924 

t>.  Hunt  (9  Gray.  66) 531 

V.  Nation  Trust  Co.  (108  Penn.  St.  1)  717 

V.  Packard  (5  Wend.  375) 1031 

V.  Southwick  (9  R.  I.  209) 648 

V.  Williams  (6  Jones,  Eq.  242) 532 

Hilliard  v.  Richardson  (3  Gray,  349) .  . .  666, 

747,  748 

Hills  V.  Bannister  (8  Cow.  31) 438 

V.  Snells  (104  Mass.  173) 760 

V.  Upton  (24  La.  Ann.  427) 890,  391 

Hillyard  v.  Crabtree  (11  Tex.  264) 631 

Hilton  V.  Vanderbilt  (82  N.  Y.  591) 1009 

Hinckley  v.  Arey  (27  Me.  362) 67,  953 

Hinde  v.  Whitehouse  (7  East.  558) 893 

Hinds  V.  Henry  (86  N.  J.  L.  328) 612, 

937,  964,  966 

Hinsdale  v.  Partridge  (14  Vt.  547) 558 

Hinson  v.  Gamble  (65  Ala.  605) 8:8 

Hipp  V.  State  (5  Blackf .  149) 746 

Hiret).  Sedgwick  (3  RoU.  109) 580 

Hirschorn  v.  Conney  (98  Mass.  149)  —  994 
Hirshfleld  v.  Landman  (3  E.  D.  Smith, 

208)  386 

V.  Waldron  (54  Mich.  649) 336,  337 

Hitchcock  V.  Buchanan  (105  U.  S.  416) .  437 

V.  Watson  (18  111.  289) ...   457 

Hitchings  v.  Van  Brunt  (38  N.  Y.  335) .  843 
Hobbit  V.  London,  &c  ,  Ry  Co.  (4  Exch. 

254) 736,  747 

Hobba  V.  Beavers  (2  Ind.  142) 896 

Hobedy  v.  Peters  (6  Jurist,  Pt.  1) 878 

Hobson  V.  Watson  (34  Me.  20) .  .869.  871,  873 

Hochster  v.  De  la  Tour  (2  E.  &  B.  678) .  624 

Hockenburg  v.  Carlisle  (5  W.  &.  S.  348)  878 
Hoddesdon  Gas  Co.  v.  Haselwood  (6  C. 

B.  239) 211 

Hodge  V.  Combs  (1  Black,  192) 306,  318 

Hodges  V.  New  England  Screw  Co.  (1 

R.  L  321) 463 

Hodgson  V.  Davies  (2  Camp.  531) 932 

V.  Dexter  (1  Cranch   .345) 436,  559 

V.  Payson  (3  H  &  J  339) 1033 

Hodkinson  v.  Kelly  (1  Hogan,  388) 870 

Hodnett  «.  Tatum  (9  Ga.  70) 130 

Hoffman  v.  Carow  (20  Wend.  21) 915 

V.  Harrington  (28  Mich.  106) 463 

V,  Livingston  (46  N.  Y.  Super.  Ct. 

553) 129,  m 

V.  New  York,  Ac,  R.  R.  Co.  (87  N. 

Y.   25) 742 

•W.Noble  (6  Mete.  68) 994 

Hogan  V.  Shorb  (24  Wend.  45^ 774,  1043 

V.  Titlow  (14  Cal.  25,5) 635 

Hogg  V.  Snaith  (1  Taunt.  347) 383,  1004 

Hoggatt  V.  Bigley  (6  Humph.  238) 588 

Holbrook  v.  Chamberlain    (116  Mass. 

161) 138,  139 

w.  McCarthy  (61  Cal.  216) 328 

V.  Oberne  (56  Iowa,  324)  404 

w.  Wight  (24  Wend.  169) 525, 

681,  684,  1035,  1037,  1041 

V.  Zinc  Co.  (57  N.  Y.  62.3) 788 

Holcomb  V.  Weaver  (1 36  Mass.  265 29 

Holcraftw.  MeUott(57Ind.  639) 649 


BKCTION 

Holden  v.  Bank  (72  N.  Y.  286) 536,    729 

V.  Crafts  (4  E.  D  Smith,  N.  "S.  490)    5.33 
Holker  v.  Parker  (7  Cranch,  436) . .  .812,    816 

HoUaday  v.  Daily  (19  Wall.  606) 804 

Holland  V.  Hatch  (11  Ind.  497) 394 

Hollenback  v.  Todd  (119  111.  543) 881 

Holley  V.  Townsend  (2  Hilton,  34).  ..968,    969 
HoUiday  v.  St.  Leonard  (11  C.  B.  N.  S. 

192) 594 

Hollingworth  v.  Tooke  (2  H.  Bl.  501)...  1033 
Hollingsworth  v.  Dow  (19  Pick   238). . . .     676 

Hollis  V.  Claridge  (4  Taunt.  807) 863 

Hollins  V.  Fowler  (L.  R.  7  H.L.  757)961,  1050 

HoUoway  v.  Griffith  (33  Iowa,  409) 634 

V.  Lowe  (7  Port.  4SS) 845 

Holly  V.  Boston  Gas  Light  Co.  (8  Gray, 

131) 490,    495 

V.  Huggeford  (8  Pick.  73)  675,  678, 

793,  1034,  1037,  1044,  1045 
Holley  V.  Townsend  (16  How.  Pr.  135). .     937 

Holman  v.  Fro.st  (36  S.  C.  290) 779,    78  J 

V.  Holmes  (66  Barb.  223) 489 

«.  Johnson  (1  Cowp.  341) 654 

V.  Kimball  32  Vt.  555) 884 

Holmes  v.  Clark  (6  H.  &  N.  348)  660,  661.    667 

V.  Hall  (8  Mich.  66) 296 

w.  North-Eastern  Ry  Co.  (L.  R.  4 

Ex.254) 669 

V.  Onion  (2  G.  B.  N.  S.  740) 735,    736 

V.  Peck  (1  R.  L  243) 495,  496,    824 

V.  Stummel  (34  111.  370) 635 

Holroyd  v.  Breare  (3  B.  &  Aid.  (473). ...    580 

Holt  v.  Cooper  (41  N.  H.  Ill) 151 

V.  Green  (73  Penn.  St.  198) 976 

Holton  V.  Smith  (7  N.  H.  446) 854,    996 

Romans  v.  Lambard  (31  Me.  308) 698 

Home  Life  Ins.  Co.  v.  Pierce  (75  HI.  426)    279 

Hone  V.  Henriquez  (13  Wend.  240) 919 

Honor  v.  Albrighton  (93  Penn.  St.  475)    670 

Hood  V.  Adams  (128  Mass.  207) 903 

V.  Fahnestock  (8  Watts,  489)  721,722,    724 

Hooe  V.  Oxley  (1  Wash.  19) 84,      86 

Hoopes  V.  Burnett  (26  Miss.  428) 878 

Hooper  v.  Chicago,  &c.  Ry  Co.  (27  Wis. 

81) 755 

V.  Welch  (43  Vt.  171) 862,  863,    871 

Hoops  V.  Burnett  (26  Miss.  428) 878 

Hoover  v.  Greenbaum  (31  N.  Y.  811) . . .    745 
V.  Wise  (91  U.  S.  308) . .  .514,  516,  519,     728 

Hopkins  u  Logan  (5  M.  &  W.  241) 211 

V.  Mehaffy  (11  S.  &  R.  Penn.  126). ..    419 

w.  MoUinieux  (4  Wend.  465) 61 

V.  Willard  (14  Vt.  474) 816 

Hopkins'  Appeal  (9  Atl.  Rep.  867) 536 

Hopping  V.  Quin  (12  Wend.  517) 852 

Horah  v.  Long  (4  Dev.  &  Bat.  274) 755 

Hord  V.  Grimes  (13  B.  Mon.  188) 498 

Horn  V.  Baker  (9  East.  215)..  1044 

V.  Western  Land  Ass'n  (22  Minn. 

233) 622 

Hornby  v.  Lacy  (6  M.  &  S.  166) . . .  .520,  1014 
Homsby  v.  Fielding  (10  Heisk.  367) ....  1009 

Horr  V.  Barker  (11  Cal.  393) 994 

Horsey  u  Chew  (65  Md.  555) 813 

Horsfall  v.  Fauntleroy  (10  B.  &  C.  755)    698 

Horton  v.  Champlin  (12  R.  I.  550) 869 

V.  McCarty  (5.3  Me.  394) 893 

V.  McMurtry  (5  H.  &  N.  667) 215 

V.  Morgan  (19  N.  Y.  170) >45 

Hortons  v.  To wnes  (6  Leigh,  59) 898 

Hoskins  v.  Johnson  (5  Sneed,  469) 841 

Hostler's  Case  (Mete.  Yelv.  67) 680 

Hotchkiu  V.  Kent  (8  Mich.  526) 121 

Hotchkiss  V.  Gretna  Gin  &  Compress 

Co.  (36  La.  Ann.  517) 210,    616 

V.  Thompson  (1  Morris,  156) 887 

Hoth  V.  Peters  (55  Wis.  405) 667 

Holtslnger  v.  National,  &c.    Bank  (6 

Abb.  Pr.  N.  S.  292) 882 

Houck  V.  Houck  (99  Penn.  St.  652) 699 

Hough  w.  Doyle  (4  Rawle  291) 279 


Ixii 


TABT.K    OF    CASKS    CITED. 


SECTION 

Hough  V.  Railway  Co.  (100  U.  S.  :J13) 

660,  6G1.  667 
Houghtaling  v.   Marvin  (7  Barb.  413) 

241,  244 

Houghton  V.  Dodgo  (5  Bosw.  326) 148 

V.  First  N.it.  Bank  of  Elkhorn  (26 

WU.  66.3) 439 

V.  Matthews  (3  B.  &  P.  489)  520.  673, 

990,  1032 
Houlden  v.  Smith  (14  Ad.  &  E.  N.  S. 

8n)   580,  585 

Housatonic,    &c.    Bank   v.    Martin  (1 

Met'-.  294) 731 

House  w  Hous^- (61  Mich.  69).  .881,  882,  883 

Itousel  V  Thrall  (18  Neb.  484)     . .  .1008,  1013 
Houseman    v.    Girard,    &c.     Building 

Ass'n  (81  Penn.  St.  256)  719,  7^1,  836 

Houston  V.  Young  (7  Ind.  200) 647,  648 

Houston  &c  Ry  Co.  v.  Cowser  (57  Tex. 

293) 751 

Houston.  &c.   R.  R.  Co.   v.  Myers  (55 

Tex.llO) 667 

Hover  v.  Barkhoof  (44  N.  Y.  113) 590 

Hovey  v.  Blauchard  (13  N.  H.  148) 721 

v.  Brown  (.'■)9  N.  H.  522)..-       129 

V.  Hob^on  (.53  Me.  4.51) 48 

V.  Magill  (2  Conn.  682)  421,  441,  443,  446 

Hovey  V.  Pitcher  (13  Mo.  191 ) 558 

Howard  v.  Ames  (3  Mete.  lOS) 683 

V.  Daly  (61  N.  Y.  362)   621,  622,  624 

V.  Duncan  (3  Lans.  175) 116 

V.  Grover  (28  Me.  97) 491,  496,  498 

V.  Ives(l  IJill,263) 511 

V.  Osceola  (22  Wis    453)  871 

r.  Sheward  (L.  R.  2  C  P.  148) 350 

Howard  College  v.  Pace  (15  Ga.  486) ...  208 

Howard  Ins.  Co.  v.  Halsey  (8  N.  Y  271)  721 
Howe  Machine  Co.  v.   Ballweg  (89  111. 

318) 339 

V.  Clark  (15  Kan.  492i 100,  102,  9.37 

V.  Simler  (59  Ind.  3(J7) 224 

Howatt  V.  Davis  (5  Munf.  34) 495 

Howe  V    Buffalo,  &o.  R.  R.  Co.    (33 

Barb.  124) 917 

V.  Buffalo,  &c.   R.  R.  Co.  (37  N.  Y. 

2;)r) 653,  654 

V.  Howe  (99  Mass.  98) 50 

V.Lawrence  (22  N.  J.  L.  99) 811 

t).  Newma.-ch  (12  Allen,  49) 743 

V.  Sutherland  (3  '  Iowa,  484) 1012 

Howell  u   Harding  (3  East.  362) 862 

V.  Gordon  (40  Ga.  302) 269 

Howland  V  Davis  ("40  .llich.  545) 1009 

V.  Milwaukee,  &.;.  Ry  (54  Wis.  226)  6-^7 

v.  Woodruff  (60  N.Y.  73) 995 

Howry  V  Eppinger  (31  Mich.  29) 279 

Hoy  r.  Morris  (13  Gray,  519) 882 

Hoyes  V.  Marsh  (123  Mass.  286) 29 

Hoyt  V.  Macon  (2  Col.  .5(12) 34 

V.  Shipherd  (70  III.  309) 9B6 

V.  Thompson  (19  N.  Y  207). 118, 121,  164 

Hubbard  v.  Belden  (27  Vt.  645) 640 

V.  Elmer  (7  Wend.  446)     326,  714 

V.  Moore  (24  La.  Ann.  591) 39 

Hubbart  v.  Phillips  (13  M   &  W   702)..  8:32 

Hubbert  v.  Borden  (6  Whart.  91) 6!'6 

Iluber  V.  Zimmerman  (21  Ala.  488).40,5,  950 
Huddleston  v.  Lowell  Machine  Shop 

(106  Mass.  282) 6.59.  670 

Hudson  V.  Granger  (5  B.  &  Aid.  27).  267, 

772,  1039,  1043 

V.  Johnson  (1  Wash.  10) 817 

V.  Revett(5  Bing.  368) 94,  96 

Huff  V.  Watkins  (15  S.  C.  82) 793 

Huffman  v.  Chicago,  &c.  R.  R.  Co.  (78 

Mo.  50) 662 

Hughes  V.  Osborn  (42  Ind.  450) 810 

V.  Perclval  (9  Q.  B.  Div.  441) 748 

V.  Wamsutta  Mills  (U  Allen,  20n . .  6-12 

•.Washington  (72  111.  84) 457, 

461,  4&4,  701 


SKCnOM 

Huguley  v.  Morris  (65  Ga.  666) 348 

Hull  V.  Marshall  County  (12  la.  270) 

291,  M6 

Hulme  V.Brown  (3  Heisk.  679) 648 

Hulsev   Young  (16  Johns.  1) 756,  898 

Humble  v.  Hunter  (12  Q  B.  310) 771 

Hummell  v.  Bank  of  Monroe  (37  N.  W. 

Rep.  9.54)  729 

Humphrey  v.  Browning:  (46  HI.  476)..876,  872 

V.  Jones  (71  Mo.  62) 546 

V.  Havens  (12  M.nn.  298) 129 

V.  McGill  (59  Ga.  649) 924 

Humphreys  v.  Guillow  (13  N.  H.  385)...  94 

Hungerford  v.  Hicks  0^9  Conn.  259)...  967 

V.  Scott  (37  Wis   341) 761 

Hunt  V.  Crane  (33  Miss.  669) 622 

V.  Douarla-s  (22  Vt   128) 186 

V.  Haskell  (24  3le.339) 683 

V.  Hunt  (72  N.  Y.  217) 583 

V.  McClanahan  (1  Heisk.  503) 869 

V.  Otis  (4  Mete.  463) 641 

V.  Plilladelpliia  ':i:<  Fenn.  St.  277)..  892 

v.  Printup  (JS  Ga.  297) 8-39 

V.  Railroad  Co.  (29  La.  Ann.  446) . .  717 

V.  Rousmanlere  ( l  Pet.  1) 296 

V.  Rousinanier(8  Wheat.  201)... 204, 

2ii5,  206,  207,  210,  242,  244,  717,  1052 

V  Test  (8  Ala.  713) 854,  856 

Hunter  r   Caldwell  (10  Q.  B.  69) 826 

V.  Giddings  (97  Mass.  41) 427,  449, 

696,  701 

V.  Hudson  River  Co.  (20  Barb.  493).  369 

V.  Jameson  i6  Ind.  L.  252) 348 

V  Mathis  (40  Ind.  356)  588 

V.  Millt-r  (6  B.  Mon.  612) 425 

V.  Sacramento  Valley  Belt  Sugar 

Co.  (14  Cent.  L.  Jour.  352)     ....  318 

V.  Waldron  (7  Ala.  753)  640 

V.  Watson  (12  Cal.  377).  .718,  721,  722, 

&S0,  882 
Huntingdon,  &c.,  R.  R.  Co.  v.  Decker 

(84  Peiin.  St.  419)     662 

Huntington  v.  Knox  (7  Cush.  ■71)    449, 

69ij.  701.  702,  769,  772,  1U42,  1043 
Huntley  v.  Mathias  (90  N.  C.  101). .  .311, 

845,  413 

Hurd  V.  Marple  (2  HI.  App.  402) 148 

V.  Moring  (1  C.  &  P.  372)       682 

V.  Vermont   Central  R.   R.  Co.  (32 

Vt.  473)         668 

Hurlbert  v.  Brisham  (56  Vt.  SfiS)....662,  863 

Hurlbut  V.  Marshall  ((i2  Wis.  590) 44 

Hurley  w.  Watson  (13  West  Rep  .543).. 

161,  273.  276,  ::89,  354,  375 

Hurst  V.  Holding  (3  Taunt.  32) 975 

V.  Sheets  (21  Iowa.  501) 873 

Hussey  v.  8ibley  (66  Me.  192)        9^9 

Huston  V.  Cantril  (11  Lei^h.  136)..  .240.  244 

V.  Mitchell  (14  S   &  R.  307) 819 

Hutcheu  V.  Gibson  (1  Bush.  270) 24 

Hutcheson  r .  Eaton  (13  Q.  B.  Div  861).  957 
Hutchings  v.  Ladd  (16  Mich.  493)     .130, 

195,  281,  4R5 

V.  Miner  (46  N.  Y.  460) 567 

V.  Munger(41  N.  Y.  155) 378 

Hutchins  v.  Bracket  (22  N.  H.  252) t94 

V.  Gilham(9  N.  H.  360) 5:53 

V.  HebDard  (?A  N.  Y.  24) 204,  206 

r.  Olcutt  (4  Vt.  549)     680 

Hutchinson  v.  Gordon  (2  Har.  179)     . . .  920 
V.  Howard  (15  Vt.  544). . .   .  662,  864,    871 

V.  Railway  Co.  (5  Exch.  343) . . .  .656,  667 

V.  Wetmore  (2  Cal.  310) 635 

Hutton  V.  Bragg  (7  Taunt,  14) 680 

V.  Bulloch  (L.R.  9Q.  B.  572) 556 

Huzzard  V.  Trego  (35  Penn  St.  9) 468 

Hy ams  v.  MiUer  (71  Qa.  608) 966 


IlUngsworth  v.  Slosson  (19  lU.  App.  612)    963 


TABLE    OF   CASES    CITED. 


Ixiii 


SECTION 

Illinois  Central  R.  R.  Co.  v.  Cox  (21  111. 

20) 656,  667 

V.  Downey  (18  111.  259) 740 

V.  Jewell  (46  111.  99) 6ti7 

V.  Middles  worth  (46  III.  494) 741 

V.  Tronstine  (64  Miss.  834) 715 

nsleyv.  Merriam  (7  Cush.  242).... 769, 

773,  1039,  1042 
Indermaur  v.  Dames  (L.  Repts.  1  C.  P. 

274,  s.  c.  2  Id.  311) 666 

Indianapolis  v.   Indianapolis  Gas  Co. 

(ti6Ind.396) 190 

Indianapolis,  &c.,  Ry  Co.  v.  Flanagan 

(77111.  3f;5) 660 

Indianapolis,  &e.,  R.  R.  Co.  v.  Morris 

(67111.  295) 117 

Indig  V.  National  City  Bank  (80  N.  Y. 

100) 514 

In^alls  V  Spragufi  (10  Wend  673) 810 

Int^ersoll  V.  Van  Bokkelin  (7  Cow.  670).  765 
Ingerson  v.  Starkweather  (Walk.  Ch. 

346) 463 

Inglehart  v.  Thousand  Island  Hotel  Co. 

(7Han,547) 69fi 

Ingraham  v.  Whitmore  (75  111.  24) 950 

Ingram  u.  Little  (14  Ga.  173) 137 

Inhabitants  of  Nobleboro  v.  Clark  (68 

Me.  87) 93 

Inhabitants  of  Westfleld  v.  Mayo  (122 

Mass.  100) 507 

Innerarity    v.     Merchants'     National 

Bank  (139  Mass.  322) . . .  .723,  729,  730 

Insurance  Co.  v  Buchanan  (100  Ind.  63)  841 

V.  Davis  (95  U.  S.  42.5) 269 

V.  Klger  (103  U.  S.  352)  994 

V.  McCain  (96  U.  S.  84)  224 

V.  rahone  (21  VVall.  152) 931 

V.  Jlosley  (8  Wall.  397) 715 

V.  Wilkinson  (13   Wall.  222)  931 

V.  Williams  (39  Ohio  St.  584) 931 

International  Bank  v.  Ferris  (118  111. 

465) 129,  155 

Irby  w.  Lawshe  (62  Ga.  216) 611 

Ireland  v.  Livingstone  (L.  R.  6  H.  L. 

416) 315 

Irmis  V.  Steamer  Senator  (1  Cal.  459). .  714 
Iron   Mountain   Bank    v.    Mercantile 

Bank  (4  Mo.  App.  505) 741 

Irvine  v.  Watson  (5  Q.  B.  Div.  102) .  .698,  700 

V.  Watson  (5  Q.  B.  Div.  414) 697 

Irwin  V.  Levy  (24  La.  Ann.  302) 38 

V.  Williar  (110  U.  S.  499) .  35,  39, 940,  974 

V.  Workman  (3  Watts,  357) 375 

Isaacs  V.  Davies  (68  Ga.  169) 621 

V.  Third  Ave.  R.  R.   Co.  (47  N.  Y. 

122) 737 

V.  Zugsmith  (103  Penn.  St.  77) 813 

Iselin  V.  Qrilifith  (62Iowa,  668) 960 

Ish  V.  Crane  (8  Ohio  St.  520)...   245 

Ives  V  Ashley  (97  Mass.  198)  791 

V.  Jones  (3  Iredell's,  L.  538) 654 

J 

Jackson  v.  Badger  (35  Minn.  52) 820 

V.  Baker  (1  Wash.  395) 1021 

V.  Bartlett  (8  Johns.  361) 820 

V.  Blodgett  (16  Johns.  172) 421 

t>.  Clopton  (66  Ala.  29) «62, 

869.  870.  871,  873,  874 

«.  Cummine-s  (5  M  &  W.  342) 674 

V.  French  (3  Wend,  337) 882 

V.  Ludeling  (21  Wall.  U.  S.  616).  ..  463 

«.  McVey  (18  Johns.  330) 882 

V.  Ramsey  (3  Cow.  75) 750 

V.  Second  Ave.  R.  R.  Co.  (47  N.  Y. 

274 734 

V.  Stevens  (108  Mass.  94) 457,  459 

V.  Union  Bank  (6  Har.  &  J.  146)  ...  514 
Jackson  Ins.  Co.   v.  Partee  (9  Halsk. 

296) 258 

V 


SEOTION 

Jacobs  V.  Pollard  (10  Cush.  288) 6.54 

V.  Warfleld  (23  La.  Ann.  395) . .  .210,  616 

Jaeger  v.  Kelley  (52  N.  Y.  274) 100 

J.iffrey  v.  King  (34  Md.  217) 215,  622 

Jameison  v.  Calhoun  (2  Speer,  19) 654 

James  v.  Allen  County  (44  Ohio  St.  226), 

621,  623 

V.  Bixby  (11  Mass.  34).. 558,  601,  699,  1048 

t).  Jellison  (94  Ind.  292) 36 

V.  McCredie  (1  Bay,  294) 990 

u.  O'Driscoll  (2  Bay,  101) 600 

V.  Russell  (92  N.  Car.  194) 86 

V.  Slookey  (1  Wash.  330) lOJ 

Janney  v.  Boyd  (30  Minn.  319) 339 

Jansen  v.  M.  Cahill  (26  Cal.  565)  96 

Jaques  v.  Todd  (3  Wend.  N.  Y.  83) 363 

V.  Weeks  (7  Watts,  261) 727 

Jarvis  v.  Rogers  (15  Mass.  396) 685,  1037 

V.  Schaefer  (11  North.  E.  Rep.  634) .  63 

.Taudon  v.  City  Bank  (8  Blatchf.  430)..  780 

Jayne  v.  Mickey  (55  Penn.  St.  260) 53J 

Jeanes  v.  Fridenburg  (3  Pa.  L.  J.  R. 

199)  882 

Jefferson  County  v.  Slagle  (66  Penn. 

St.  202) 78 

Jeflferson  Ins.  Co.  v.  Cotheal  (7  Wend. 

72)  931 

Jeffersonville  R.  R.  Co.  v.  Rogers  (38 

Ind.  116) 751 

Jeffrey  v.  Bigelow  (13  Wend.  518) 287 

V.  Hursh  (49  Mich.  31) 323 

Jefts  V.  York  (4  Cush.  372) 432.  549,  550 

V.  York  (10  Cush.  302) 542,  545,  546 

V.  York  (12  Cush.  196) 561 

Jenkins  v.  Atkins  (1  Humph.  294) 240, 

245,  246,  545 

V.  Eichelberger  (4  Watts,  121)  ....  676 

V.  Eldridge  (3  Story,  18;^) 457,  459 

V.  Gillespie  (10  Sm.  &.  M.  31) 812 

V.  Hutchinson  (13  Ad.  &  EI..  N.  S. 

744)  649 

V.  Waldron  (11  J  hns.  114) 588 

«.  Walter  (8  Gill.  &  J.  218) 529 

Jenner  v.  Joliflfe  (9  Johns.  381) 590 

Jenney  v.  Delesdernier  (20  Me.  183) ....  811 , 

812,  816 

Jennings  v.  Camp  (13  Johns.  94). .  635,  636 

V.  McConnell  (17  111.  148) 877 

V.  Lyons  (29  Wis.  553) 631,  634,  640 

Jennison  v.  Parker  (7  Mich.  355) 163 

Jervis  v.  Hoyt  (5  Thomp  &  0.  199) ....  1015 

V.  Hoyt  (2  Hun.  637) 481 

Jessup  V.  Steurer  (75  N.  Y.  613). .  ..696,  957 

Jesup  V.  City  Bank  (14  Wis.  331) 414 

Jeter  v.  Haviland  (24  Ga.  252) 819 

Jett  V.  Hempstead  (25  Ark.  462) 522. 

530,  .531,  533,  878 

Jewell  V.  Schroeppel  (4  Cow.  564) 636 

V.  Thompson  (2  Lith  52) 635 

Jewett  V.  Alton  (7  N.  H.  233) 78 

V.  Carter  (132  Mass.  335) 743 

V.  Lawrenceburgh,  &c.,  R.  R.  Co. 

(10  Ind.   539) 86 

V.  Wadleigh  (32  Me.  110) 819,  820 

Jhons  V.  People  (25  Mich.  503) 97 

Joel  V.  Morison  (6  C.  &  P.  501) 737 

Joest  V.  Williams  (42  Md.  565) 49 

Johnson  V.  Barber  (5  Gil.  425) .  .573,  574,  739 

V.  Blasdale  (1  Smedes  &  M.  20) 394 

V.  Boston  Tow  Boat  Co.  (135  Mass. 

215) 657 

V.  Buck  (35  N.  J.  L.  338) . . .  .893,  897,  898 

V.  Campbell  (120  Mass.  449)..  ..1011,  1038 

V.  Catlin  (27  Vt.  87) 755 

V.  Crais:  (21  Ark.  533) 824 

V.  Credit  Lyonnais   (8  C.  P.    Div. 

224) 786 

V.  C!unningham  (1  Ala.  249)     ..194, 

195  196  998 

V.  Daverne  (1 9  Johns.  134) '....'  882 

V.  Dodge  (17  111.  433) 89,  92,  93 


Ixiv 


TABLE   OF   OASES   CITED. 


931 
996 
957 
169 
793 
588 
219 
550 


SKOTION 

Johnson  t>.  Hill  (3  Stark.  172) 677 

V.Hudson  (11  East.  180) 756 

V.  Hillings  (103  Penn.  St.  498) 976 

V.  Hunt  (81  Ky.  321) a 36 

V.  Martin  (11  La.  Ann.  27) 601,  1015 

V.  McQruder  (15  Mo.  365) 334 

V.  New  York  Cent.  Transp.  Co.  (33 

N.  Y.  610) 475 

w.  0'Hara(5Leigli.  456).... 1021 

w.  Outlaw  (56  Jliss.  541) 878 

V.  Semple  (31  Iowa,  49) 833 

V.  Smith  (21  Conn.  627) 550,    558 

V.  Tnompson  (72  Ind.  167) 607 

ti.  Van  Velsor  (43  Mich.  208) 96 

V.  Wade  (2  Bast.  Tenn.  4S0). .  ..lOOS,  1009 

V.  Wilcox  (25  Ind.  182) 240 

Johnston  v.  Berry  (3  111.  App.  256).  155,    164 

».  Bingham  (9  W.  &  S.  56) 77 

V.  Brown  (18  La.  Ann.  330) 70 

V.  Sumner  (3  H.  &  N.  261) 82 

V.  Winsate  (29  Me.  404) 155,    274 

Joliflfe  V.  Madison  Mut.  In.s.  Co.  (39  Wis. 

Ill) 

Jones  V.  Adler  (34  Md.  440) 611, 

V.  ^tna  Ins.  Co.  (14  Conn.  501). 554, 

V.  Atkinson  (68  Ala.  167) 150, 

V.  Blocker  (4:J  Ga.  331) 

V.  Brown  (54  Iowa,  74) 581, 

V.  Commercial  Bank  (78  Ky.  413).. 

V.  Downman  (4  Ad.  &  El,  N.  S.  235). 

V.  Florence  Mining  Co.  (66  Wis.  268)    658 

V.  Graham,    &c.    Transp.    Co.    (51  i 

Mich.539) 218    | 

V.  Granite  Mills  (126  Mass  84) 659 

w.  Gregg  (17  Ind.  84) 531    I 

V.  Harris  (10  Heisk.  98) 269 

«.  Hodgskins  Cei  Me.  480) 226 

V.  Inness  (32  Kan.  177) 813 

V.  Lake  Shore,  &c.  Ry  Co.  (49  Mich. 

573) 663 

V.  LeTombe  (3  DaUas,  384) 426 

V.  Littledale  (6  Ad.  &  El.  486) 913 

V.  Loving  (55  Miss.  109) 589 

«.  Marks  (40  111.  313) 954 

V.  Morgan  (39  Ga.  3 10) 869,    871 

V.  Morrill  (42  Barb.  626) 677 

V.  Morris  (61  Ala   518) 421 

V.  Null  (9  Neb.  254) 924 

w.  Perkins  (5  B.  Mon.222) 48 

V.Ransom  (3  Ind.  327) 819 

v.Kpad  (1  La.  Ann.  200) 63 

V.  School  District  (8  Kans.  362) 605 

V.  Scudder  (2  Gin.  Sup.  Ct.  178) 29 

t).  Sinclair  (2  N.  H.  321) 675,  1034 

V.  Witter  (13  Mass.  304) 772 

Johns  V.  Trick  (22  Cal.  511) 934 

Joor  V.  Sullivan  (5  La.  Ann.  177) 193 

Jordan  V.  Hanson  (49  N.  H.  199). .   .580,    586 

V.  James  (5  Ohio,  88) 1032,  1033,  1034 

v.  Jordan  (65  Ga.  851) 646 

V.Smith  (19  Pick.  287) 892 

V.  Wells  (3  Woods,  527) 667 

Joseph  V  Knox  (3  Camp.  320) 755,    763 

Joslin  V.  Cowee  (52  N.  Y.  90) 1015 

Joshn  V.  Ck)wee  (56  N.  Y.  626)  67,  644, 

953, 
V.  Grand  Rapids  Ice  Co.  (50  Mich. 

516) 735, 

Josselyn  v.  McAllister  (22  Mich.  800) 

•^  182,571, 

Joyce  V.  Duplessis  (15  La.  Ann.  242) 

311, 

Judah  V.  Dyott  (3  Blaekf.  324) 531, 

V.  Kemp  (2  Johns.  Cas.  411) 

Judd  V.  Mosely  (30  Iowa,  434) 457,    459 

Judge  V.  Booge  (47  Mo.  544) 934 

Judson  V.  Sturges  (5  Day,  556)  481,  674, 

838,  942,  1015 

Just  V.  Wise  (43  Mich.  573) 96 

Justice  V.  Justice  (14  West  Rep.  275)..    873 
f.  Lang  (43  N.  Y.  493) 211 


972 
736 


578 


533 
681 


K. 

Kanada  v.  North  (14  Mo.  616) 470 

Kansas  Pac.  Ry  Co.  v.  McCoy  (8  Kans.      _ 

538) 23 

V.  Peavey  (29  Kan.  169) 671 

Kansas,  &c.   R.  R    Co.  v.  Pointer  (9 

Kan.  620) 715 

Kansas  Pac.  Ry  Co.   v.   Thacher  (17 

Kans.  92) 869 

Kauflfman  v.  Beasley  (54  Tex.  563)  990,  1017 
Kaulback  v.  Churchill  (59  N.  H.  296)...  10.51 
Kausal   v.    Minnesota    Farmers'    Ins. 

Ass'n  (31  Minn.  17) 931 

Kaye  v.  Crawford  (22  Wis.  322) 59H 

V.  Brett  (5  Ex.  269) 6 

Kean  v.  Davis  (M  N.  J.  L.  425) 655 

V.  Davis  (21  N.  J.  L.  683) . .  .441,  442,    44^^ 
Keating  v.  Hyde  (23  Mo.  App.  555) .  .30,      31 

Keay  v.  Fenwiek  (1  C.  P.  Div.  745) 71 

Keech  v.  Sandford  (3  Eq.  Cas.  Abr.  741)    469 

K-egan  v.  Malone  (63  Iowa,  208) 599 

Keeley  v.  Boston,  &c.  R.  R.  Co.  (67  Me. 

163) 714 

«.  Howe  (73  m.  136) 739 

Keenan  v.  Southworth  (110  Mass.  474)    594 

Keener  v.  Harrod  (2  Md.  63) 287,    650 

Kehlor  v.  Kemble  (26  La.  Ann.  713)  155,    163 

Kehrig  v.  Peters  (41  Mich.  475) 745 

Keighler  v.  Savage  Mnfg  Co.  (12  Md. 

383) 68,  454,  463,  1007,  1031,  1023 

Keller  v.  Salisbury  (33  N.  Y.  648) 149 

Keith  V.  Fitzhugh  (15  Lea,  49) 873 

V.  Hirschberg  Optical  Co.  (2  S.  W. 

Rep.  777) 850 

V.  Howard  (34  Pick.  29.') 690 

V.  WUson  (6  Mo.  435)     810 

Keivan  v.  Sanders  (6  Ad.  &  El.  515)....    525 

Keller  v.  Scott  (2  Sneed  &  M.  81) 819 

V.  Singleton  (69  Ga.  703) 699 

Kelley  v.  Boston  Lead  Co.  (128  Mass. 

456) 687 

V.  Munson  (7  Mass.  318). .  .757,  1042,  1044 
V.  Newburyport  Horse  R.  R.   Co. 

(141  Mass.  406) 128,  129,  148 

V.  Norcross  (131  Mass.  508) .  667 

V.  Norris  (10  Ark.  18) 814 

V.  Richardson  (14  West.  Rep.  416). .    849 

V.  Silver  Spring  Co.  (13  R.  I.  113) ...    670 

Kellogg  V.  Gilbert  (10  Johns.  220)..  .813,    820 

V.  Norris  (10  Ark.  18) 814 

V.  Payne  (21  Iowa,  575) .  666,    747 

V.  Smith  (26  N.  Y.  18)  373 

Kelly  V.  Bemis  (4  Gray,  84) 585 

V.  Creen  (63  Penn.  Pt.  299) 924 

V.  Mayor  (11  N.  Y.  432) 748 

V.Phelps  (57  Wis.  425) 226,    967 

V.  Wright  (65  Wis.  236) 813 

Kelner  v.  Baxter  (L.  R.  2  C.  P.  174) 124 

Kelsey  v.  National  Bank  (69  Penn.  St. 

426) 84,  118,  155,     158 

Kelton  V.  Leonard  (54  Vt.  230) 287 

Kemp  V.  Burt  (4  B.  &  Ad.  424) 834,    835 

V.  Neville  (10  0.  B.  N.  S.  523) 580 

Kemper  v.  Kemper  (3  Rand,  8) 654 

Kempker  v.  Roblyer  (29  Iowa,  274)  495,    951 

Kendall  v.  Garland  (5  Cush.  79) 138 

V.  Mann  (11  Allen,  15) 457,    459 

Kennedy  v.  Gouveia  (3  D.  &  R.  503)...    755 

V.  Green  (3  Myl.  &  Keen.  699) 723 

V.  McKay  (14  Vroom,  388) 743 

r.  Shea  (;110  Mass.  147) 795 

V.  Strong  (14  Johns.  128) 994 

Kenney  V.Greer  (13  111.  432) 585 

V.  Shaw  (133  Mass.  501) 668 

Kent  V.  Bomstein  (13  Allen,  342) . . .  .352, 

384,  761,    997 

V.  C!hapman  (18  W.  Va.  485) 819 

V.  Dawson  Bank  (13  Blatchf.  237)..    614 
V.  Quicksilver  Mining  Co.  (78  N.  Y. 

137) 157 


TABLE    OF    CASES  CITED. 


Ixv 


Kent  V.  Rlcardg  (8  Md.  Ch.  392) 375 

Kenton  Ins.  Co.  v.  McClellan  (43  Mich. 

564) 56 

Kentucky  Bank  v.  Combs  (7  Penn.  St. 

543) 606,  849 

Keown  v.  Vogel  (25  Mo.  App.  35) 755 

Kerfoot  v.  Hyman  (52  111.  512).  ..68,  461, 

470,  528 

V.  Steele  (113  m.  610) 966 

Kerns  v.  Piper  (4  Watts,  222) 301 

V.  Swope  (2  Waits,  75) 727 

Kerr  v.  Cotton  (23  Tex.  411) 475,  1024 

V.  Sharp  (83  III.  199) 129 

Kersey  v.  Garton  (77  Mo.  645).. 843,  847, 

854,  856 
V.  Kansas    City,  &o.,    R.    R.    Co. 

(79  Mo.  362) 662 

Kershaw  v.  Kelsey  (100  Mass.  561) 269 

Kerwin,  Ex  parte,  (8  Cow.  118) 94 

Kessee  v.  Mayfleld  (14  La.  Ann.  90)....  619 

Ketcham  v.  Thorp  ^91  ill.  611) 833 


.VA\ 


97 

658 


967 


668 


743 
525 


702 


748 
893 


Ketchum  v.  Verd'  11  (4-.'  Ga  534) 
Key  V.  Parnham  (6  Har.  &  J.  418) 
Keys  V.  Johnson  (68  Penn.  St.  42).  .9-37, 

964, 
Keyser  v.  Chicago  &  Q.  T.  Ry  Co.  (33 

N.  W.  Rep.867) 715 

Keystone  Bridge  Co.  v.  Newberry  (96 

Penn.  St.  246) 667, 

Kibbe  v.  Hamilton  lus.  Co.  (11  Gray, 

163)  

Kieran  v.  Sandars  (6  Ad.  &  El.  515). . . . 
Kiersted  v.  Orange,  &c.,  R.  R.  Co.  (69 

N.  Y.343) 421. 

Kiewert  v.  Rindskopf  (46  Wis.  481) 526 

Kiley  u  Forsee  (57  Mo.  390) 84,      97 

Kimball  v.  Billings  (55  Me.  147) 573,    574 

V.  Perry  (15  Vt.  414) 816 

Kinderv.  Shaw  (2  Mass.  397) 994 

Kingr.  Batterson  (13  R.  I.  117) 770 

V.  Dixon  (3  M.  &  S.  11) 746 

V.  Kelly  (28  Ind.  89) 599 

V.  Longnor  (1  Nev.  &  M.  576) 96 

V.  New  York,  &c.,  R.  R.  Co.  (66  N. 

Y.lSl) 666,747, 

V.  Sparks  (1  S.  E.  Rep.  266) 

V.  State  (58  Miss.  737) 746 

V.  Steiren  (44  Penn.  St  99) 622,    623 

Kingsbury  v.  School  District  (12  Mete. 

99) 78 

Kingsley  v.  Fitts  (51  Vt.  414) 282 

Kingston  Ex  parte  (L.  R.  6  Ch.  Aop. 

632) ;.:.    781 

V.  Kincaid(l  Wash.  457) 512 

V.  Wilson  (4  Wash.  310) 510 

Klnlock  r.  Craig  (3  T.  R.  119) 1035 

Kinney  v.  Matthews  (69  Mo.  520) 323 

V.  Robinson  (29  N.  W.  Rep.  86)..869,    870 

V.  Showdy  (1  Hill.  544) 896 

Kinsey  v.  Leggett  (71  N.  Y.  387) 1036 

V.  Stewart  (14  Tex.  457) 862 

Kinsman  v.  Kershaw (119  Mass.  140). . .,    342 

Kirk  V.  Glover  (5  Stew.  &  P.  340) 819 

V.  Hartman  (63  Penn.  St.  97). . .  .204,  210, 
616,    622 

w.  Hiatt  (2  Ind.  322) ....    375 

Klrkman  v.  Vanlier  (7  Ala.  224) 534 

Kirkpatrick  v.  Adams  (20  Fed.  Rep.  287)    487 
V.  Winans  (1  C.  E.  Green,  407).. 290,    291 

Kirk's  Appeal  (87  Penn.  St.  243) 819 

Kirksey  v.  Jones  (7  Ala.  622) 751,    839 

Kirtland  v.  Montgomery  (1  Swan,  452).     496 

Kisling  V.  Shaw  (.33  Cal.  425) 878 

Kitchen  v.  Hartford  F.  Ins.   Co.  (57 

Mich.  135)  

Knapp  V.  Alvord  (10  Paige,  205). . .  .206, 
241,  1032, 

V.  Simon  (96  N.  Y.  284) 697. 

w.  Smith  (27  N.Y.  277) 56 

w.  Wallace  (41  N.  Y.  477) 

Inre  (85  N.  Y.  384) 862, 


931 


1052 

977 

62 

967 

869 


SECXIOIf 

KnatchbuU  v.  Hallett  (13  Ch.  D.  696) . . 

6o6,  781 

Kneeland  v.  Rogers  (2  Hall,  579) 654 

Knight  V.  Clark  (43  N.  J.  L.  22) 426,  440 

u  Ni-Non  (117  Mass.  4,58) 654 

Knotts  V.  Tarver  (8  Ala.  743) 534 

Knowles  v.  Dow  (2  N.  H.  387)  ...  281 

Knowlton  v.  Fitch  (52  N.  Y.  288). .  .936,  954 

Knox  V.  Flack  (22  Penn.  St.  337) ...  .51,  53 
Knoxville  Iron  Co.  v.  Dobson  (7  Lea, 

307) 668 

Koch  V.  Branch  (44  Mo.  542) 915 

Kock  V.  Eiiimerling  (22  How.  69).. .966,  967 

Kohn  V.  Washer  (64  Tex.  131) 339,  343 

Kom"rowski  v.  Krumdick  Q6  Wis.  23).  363 
Kornemann  v.  Monaghan  (24  Mich.  36) 

100,  337,  339,  340 

Krause  v.  Dorrance  (10  Barr.  462) .  .515,  533 

Kreiter  v.  Nichols  (28  Mich.  496) 745 

Kribben  v.  Haycraft  (26  Mo.  396) 33 

Krider  v.  We.-5tern  College  (31  Iowa. 

547) 139 

Kroegeru  Pitcairn  (101  Penn.  St.  311) 

642,  54.3,  544,  545,  574 

Krohn  v.  Bantz  (68  Ind.  277) 211 

Kroy  V.   Chicago,    &c.    R.  R.  Co.   (32 

Iowa,  337) 659,  670 

Krudler  v.  Kllison  (47  N.  Y.  .36) 755 

Kruger  v   Western  F.  &  M.  Ins.   Co. 

(72  Cal.  91) 931 

Cruse  V.  Stelfens  (47  III.  112)..  .457,  462,  463 

Krutz  V.  Fisher  (8  Kans.  90) 457.  459, 

468,  533 

Kupfer  V.  Augusta  (12  Mass.  185) 77 

1-Iusterer  v.  City  of  Beaver  Dam    (56 

Wis.  471) 844,  846,  871 

Kyle,  Ex  parte  (1  Cal.  331) 869.  870 

Kymer  v.  Suwercropp  (1  Camp.  109) . .  698 

L 

Labadie  v.  Hawley  (61  Tex.  177). .  .539,  570 

Lacey.  Ex  parte  (6  Ves.  Jr.  636) 463 

Laclede  Bank  v.  Keeler  (109  111.  385) ...  878 
Lacy  V.  Dubuque  Lumber  Co.  (43  Iowa, 

510) 443 

Lacy  V.  Osbaldiston  (8  C.  &  P.  80) 215 

Ladd  V.  Arkell  (37  N.  Y.  Super.  Ct.  35) 

1039,  1043 

V.  Arkell  (40  N.  Y.  Super.  Ct.  150)..  1043 

V.  Hildebrant  (27  Wis.  135) 161 

ti.    New    Bedford  R.   R.     Co.  (119 

Mass.  412) 670 

V.  Newell  (34  Minn.  107) 63 

La  Farge  v.  Kneeland  (7  Cow.  458) 561 

Lafayette.  &c.  R.  R.  Co.  v.  Ehman  (30 

Iiid  83) 714 

Lafiferty  v.  Jelley  (22  Ind.  471) 469 

Lafitte  V.  Godchaiix  (35  La.  Ann.  1161)  155, 

156,  164 
Lafiin   &   Rand    Powder  Co.    v.    Sins- 

heimer  (48  Md.  411) 439,  441 

Lafond  v.  Deems  (81  N.  Y:  514) 73 

La  Framboise  v.  Grow  (56  1)1  197) 869 

Laidler  ?).  Burlinson  (2  M.  &  W.  602)...  634 

V.  Elliott  (3  B.  &.  C.  73S) 824 

Lake  v.  Campbell  (18  111.  109) 89 

Lakeman  v.  Pollard  (43  Me.  463> 607, 

631,  638.  640 
Lake  Shore,  &e.  Ry  v.  Knittal  (33  Ohio 

St.  468) 667 

V.  McCormick  (74  Ind.  440) 659 

Lalor  V.  Chicago,  &c.  R.  R.  Co.  (62  111. 

401) 663 

Lamb  v.  Palk  (9  C.  &.  P.  029) 737,  738 

w.  Williams  (1  Salk  89) 813 

Lambert  v.  Sandford  (2  Blackf.  137) ...  813 

Lambeth  v.  Turnbull  (5  Rob.   264) 1033 

Lamkin  v.  Crawford  (8  Ala.  153) 934 

Lamm  v.  Port  Deposit,  &c.  Assn.  (49 

Md.  233) 714,  743 


Ixvi 


TABLE    OF    CASES    CITED. 


SECTION 

Lament  v.  Washington,  &c.  R.  R.  Co. 

(2  Mackey,  50-') 846,    8, 1 

Lamothe  v.  St.  Louis,  &c.  Co.  (17  Mo. 

204) 2-24 

Lamoure  v.  Caryl  (4  Denio,  370). ......    84U 

Lampley  v.  Scott  (ii  Miss.  533) 497,    502 

Lancaster  Nat.   Bank  v.  Taylor  (100 

Mass.  18) '86 

Landon  v.  Humphrey  (9  Conn.  209). . . .    495 

Landis  v  S.ott  (32  Pa.  St.  495) 532 

Lane  v.  Albright  (49  Ind.  '^75) 967 

V.  Blaci<  (21  W.  Va.  617) ....  113,  178,    878 

ti.  Bryant  (9  Gray,  245) 715 

V.  Cotton  (12  Mod.  ^88)  539,  590,  593,    594 

V.  Dudley  (3  Murph.  119) 3.jO 

V.  Hallum  (38  Ark.  3S5) 869 

Lang  V.  Waters  (47  Ala.  624) 62 

Langdon  v.  Potter  (13  Mass.  319) . .  .375,    «19 

Laiige  V.  Benedict  (73  N.  Y.  12) 58u, 

583,  584,     586 

u.  Kaiser  (31  Mich.  318) 6i)0 

Langley  v.  Sturtevant  (7  Pick.  214) ....    530 

V  Warner  (1  Sandf.  209) 561 

Lansing  v.  New  York  Cent.  R   R.  Co. 
(49  N.  Y.  521).. 656,  659,  661,  662, 

667,  668,    670 

Lantry  v.  Parks  (8  Cow.  63) 635,    636 

Lanus-e  v.  Barker  (3  Wheat.  101),. 230,    393 

Lapa  ugh  v.  W  ilson  (43  Hun,  619 888 

Lapham  v.  Green  (9  Vt.  407) 755 

Large  v.  Coyle  (Id  Atl.  Rep.  343) 853 

Larkin  v.  Buck  (11  Ohio  St.  561) 635 

Larminie  v.  Carley  (114  111.  196) . . .  .936,  1027 
La  Salle  National  Bank  v.  Tolu  Rock 

&  Rye  Co.  (14  111.  App.  141)  .411,    443 
Lasure  v.  GranitevUIe  Mfg  Co.  (18  S.  C. 

275)  667 

Latham  v.  Roach  (72  DL  179) 666 

Lathrop  v.  Amherst  Bank  (9  Mete.  489)    845 

Latterett  v.  Cook  (1  Iowa,  1) 810 

Lauenstein  v.  Fond   du  Lac  (28  Wis. 

836) 190 

Lauer  v.  Brandon  (48  Wis.  566) 89 

Laussatt  v.  Lippincott  (6  S.  &  R.  386).  195 
Lavassar  v.  Washbume  (50  Wis.  200) . .  6:i 
Laverty  u.  Snethen  (68  N.  Y.  522)  .476,  477 
Law  V.  Cross  (1  Black,  533) ....  118,  155,    164 

V.  Grant  (37  Wis.  548) 743,    775 

t>.  Nunn  (3Ga.  90) 561 

V.  Stokes  (3  Vroom.  249) 274, 

282,  839,  340,  342 
Lawler  v.  Androscoggin  R.  R.  C3o.  (62 

Me.  403) 666,    668 

Lawrence  v.  Fox  (20  N.  Y.  268) 667 

w.  Gullifer  (38  Me.  532) 619 

u  Hand  (23  Miss.  103) 775 

V.  McArter  (10  Ohio,  -37) 61,    53 

V.  Stonington  Bank  (6  CJonn.  521). ..    514 

V.Taylor  (5  Hill.  107).   89, 

92, 141,  167,  179,    702 

Lawson  v.  Bettison  (12  Ark.  401) 819 

V  Dickenson  (8  Mod.  306) 862 

Laytboarp  v.  Bryant  (2  Bing.  N.  C.  785)  211 
Lazarus  v.  Commonwealth  Ins.  Co.  (5 

Pick.  76) 756,931,    983 

V.  Shearer  (2  Ala.  718) 441,  443,    558 

Lea  V.  Bringier  (19  La.  Ann.  197) .      57 

Leach  V.  Blow  (8S.  &  M.  221) 436 

V.  Hannibal,  &c.,  R.  R.  Co.  (86  Mo. 

27) 471 

Leadbitter  v.  Farrow  (3  M.  &S.  345), 

430,    4.35 

Leake  v.  Sutherland  (25  Ark.  219) 469, 

530,  1023 

Learned  v.  Tillotson  (97  N.  Y.  1) 163 

Leary  v.  Boston  &  Albany  R.  R.  (189 

Mass.   580) 663 

Leatheiberry  v.  Odell  (7  Fed.  Rep.  641)    622 

Leavitt  r.  Fisher  (4  Duer.  1) 241 

Lebanon  Mut.  Ins.  Co.  v.  Hoover  (113 

Penn.  St.  591) 931 


SECTION 

Lebanon  Savings  Bank  v.  HoUenbeck 

(29  Minn.  322) 721 

Lfcatt  ti.  Sallee  (3  Port.  11.5) 878 

Le  Llair  v.  Railroad  Co.  (20  Minn.  9). . .    660 
Ledyard  v.  Hibbard  (48  Mich.  421)....    485 

Lee  i>.  Adsit  (37  N.  Y.  78) 510 

v.  Clements  (48  Ga.  128) 647,    648 

V.  Dixon  (3  F.  &  F.  744) 824 

r.  Grimes  (4  Col.  18.5) 811,    812 

u  Lee  (e  G.  &  J.  316) 600 

V.  Matthews  (10  Ala.  682) 573,    .574 

V.  Munroe  (7  Cranch,  366) 292,    714 

u  TiiiKes  (7  Md.  215) 355 

V.  West  (48  Ga.  311) 113 

Leeds  v.  Marme  Ins.  Co.  (6  Wheat.  565)    762 

Leekins  v.  Nordyke  (66  Iowa,  471) 67, 

953     972 

Lees  V.  Nutall  (2  M.  &  K.  819) 459^    460 

V.  Whitcomb  (3  C.  &  P.  289) 211 

Leese  v.  IMartin  (L.  R.  17  Eq.  224) 680 

Leete  v.  Norton  (43  Conn.  219) 966 

Leggett  V.  N.  J.  Mfg  Co.  (1  Saxt.  Ch. 

541) 167 

Lehigh  Valley  Coal  Co.  v.  Jones  (86 

Penn.  St.  4.32) 667 

Lehigh  Coal  &  Nav.  Co.  v.  Mohr  (83 

Penn.  St.  228) 2.52 

Lehman  Ex  parte  (59  Ala.  631) 870, 

871,  873,    874 
Lehman  v.  Pritchett  (27  Cent.  L.  Jour. 

380) 1008,  1009 

Leigh  V.  Macauley  (1  Y.  &  C.  Ex.  260) .     536 
V.  Mobile,  &c.,  R.  R  Co.  (58  Ala. 

165) 681 

Leighton  v.  Sargent  (27  N.  H.  460) 490, 

494,  495,  496,     824 

Leinkauf  v.  Morris  (66  Ala.  400) 751 

Leland  v.  Douglas  (1  Wend.  490) 195, 

485     990 

Le  Neve  v.  Le  Neve  (3  Atk.  648) .'    721 

Lengsfleld  v.  Richardson  (.52  Miss.  443).    881 

Lenox  V.  Grant  (8  Mo.  254) 580 

Leonard  In  re  (12  Oreg.  93) 804 

Leopold  V.  Salkey  (89  HI.  420) 235,    640 

Le  Roy  V.  Beard  (8  How,  451) 311, 

315,  322,    4S4 
Lerned  v.  Johns.  (9  Allen,  419). 449,  696,  1042 

Leslie  v.  Fischer  (62  III.  118) 809,    810 

Lessee  of  Clarke  v.  Courtney  (5  Pet. 

350)  425 

Lessee  of  Wright  v.    Deklyne  (1  Pet. 

204) 895 

Lester  v.  Je wett  (12  Barb.  502) 21 1 

V.  Kinue  (37  Conn.  9) 129 

Lever  v.  Lever  (1  Hill.  Ch.  62) 533 

Leverick  v.  Meigs  (1  Cow.  645). 495,  520,  1014 

Levi  V.  Booth  (58  Md.  305) 335,  354,    786 

v.Brooks(121  Mass.501) 751 

Levisonv.  Balfour  (3 1  Fed  Rep.  382)...  Io09 

Levy  ».  Brown  (56  Miss.  83) 811 

V.  Brush  (8  Abb.  Pr.,  N.  S.  431)....    791 

t7.  Loeb(85N.  Y.  865) 936 

V.  Lord  Herbert  (7  Taunt.  314) 622 

V.  Pope  (1  M.  &  M.  410) 883 

V.  Shurman(6  Ark.  182) 585 

Lewis  V.  Atlas  Mut.  L.  Insur.  Co.  (61 

Mo.  534) 211,    628 

V.  Bourbon  (12  Kans.  186) 287 

V.  Brehme  (33  Md.  412) 443,  520,  1014 

V.  Commissioners  (12  Kans.  186) 278 

V.  Galena,  &c.,  R.  R.  ^40  111.  281). .. .  10.35 

V.  Gamage  (1  Pick.  347) 820 

V.  Hillman  (3  H.  L.  Cas.  607).. .  .791.  878 
V.  Ingersoll  (3  Abb.  App  Dec.  55).  186 
V.  Kerr  (17  Iowa,  73) . .  .240,  244,  245,  246 
V.  Kinealy  (2  Mo,  App.  33)....  862,    869 

V.  Lee(3"B.  &.  C.  291) 56 

«.  Mason  (14  W.  Rep.  719) 915,    922 

V.  Nicholpon  (18  Q.  B.  503) 549 

».  Peck  (10  Ala.  142) 515 

r.  Read  (13  M.  &  W.  &34) 128,    129 


TABLE    OF    CASES    CITED. 


Ixvii 


SECTION 

Lewis  V.  Shreveport  (108  U.  S.  282) 287 

u  Sumner  (13  Mete.  269) 811,  812 

v.Tiltcm((34   Iowa,  2,!0) 72 

V.  Trickev  (20  Barb.  387) 601 

V.Tyler  02 ^  Cal.  364) 674 

V.  Wells  (50  Ala.  198) 250 

Liddle  v.  Neeilham  (39  Mich.  147) 211 

Lienkauf  v.  Morris  (66  Ala.  406) 751 

Life  lus.  Co.  V.  Masten  (3  Fed.  Rep.  881)  89 
Liiieuthal  v.  Campbell  (22  La.  Ann.  600) 

580,  588 

Lillie  V.  Hoyt  (5  Hill.  395) 530,  531,  833 

Lilliman  v.  Wing  (7  Hill.  159) 565 

Lilly  V.  Waggoner  (27  111.  395)  48 

Lime  Rock  Bank  v.  Plimpton  (17  Pick. 

159) 781,  1044 

Linblom  v.  Rami5ey  (75  111.  246) 714 

Lincoln  v.  Battelle  (6  Wend.  475) 728 

V.  Chapin  (132  Mass.  470) 586 

V.  Emerson  (108  Mass.  87) 240,  244 

V.  McClatchie  (3tj  Conn.  136) 966 

Lindreth  v.  Litchfield  (27  Fed.  Rep.  894)  149 
Lindsay  v.  Singer  Mfg  Co.  (4  Mo.  App. 

570) 749 

Lindus  V.  Melrose  (2  H.  A  N.  293) 436 

Liness  v.  Hcs^ing  (44  III.  113) 28 

Unlike  V.  Wilkinson  (57  N.  Y.  451) 701 

Liiigwood  V.  Eado  (3  Atk.  501) 188 

Linn  Boyd  Tobacco  Co.  v.  Terrill  (13 

Bush.  463) 893 

Linton  v.  Smith  (8  Gray,  147) 747 

Liotard  v.  Graves  (3  Caines,  226). .  .481, 

942,  1016 

Lipe  V.  Ludewick  (14  111.  App.  372) 966 

hiFter  r.  Allen  (31  Md.  543) 279 

Litchfield  v.  Register  (9  Wall.  575) 592 

Litka  V.  Wilcox  (39  Mich.  94) 41 

Little  V.  Dawson  (4  Dall.  Ill) 600 

V.  Fossett  (34  Me.  545) 765 

V.  Moore  (4  N.  J.  74) 680 

V.  Newton  (2  Scott  N.  R.  509) 188 

V.  Phoenix  Ins.  Co.  (123  Mass.  380).  931 

V.  Rees  (34  Minn.  277) 971 

Little  Miami  R.  R.  Co.  v.  Wetmore  (19 

Ohio  St.  110) 741 

Little  Rock,  &c.  R.  R.  Co.  v.  Leverett 

(3S.  W.  R<-p.  58) 715 

V.  Eubanks  (3  S.  W.  Rep.  808> 671 

Livermore  v.  Aldrich  (5  Cush.  431) 459 

Livezy  v.  Miller  (6 1  JId.  336) 966,  969 

Livings  u.  Wiler  (32  111.  387) 116 

Livingston  v.  Ackeston  (5  Cow.  531). . .  600 

V.  Cox  (6  Penn.  St.  360) 826,  831 

Lloyd  V.  Brewster  (4  Paige,  537) 151 

V.  Colston  (5  Bush.  5!57)  643 

V.  Matthews  (51  N.  Y.  125) 967,  969 

Lobdell  V.  Baker  (1   Mete.  193)  6,  279, 

714,  1046 

Locke  V.  Alexander  (2  Hawk.  155) 421 

V.  Lewis  (124  Mass.  1) 1043,  1043 

V.  Stearns  (1  Mete.  560) 739,  743 

Lockett  V.  Baxter  (19  Pac.  Rep.  23). . . .  1009 

Lockhart  v.  Wyatt  (10  Ala.  231) . . .  .378,  813 
Lockwood  V.  Levick  (8  C.  B.  N.  S.  603) 

598,  613 
Logan  County  Bank  v.  Townsend  (3  S. 

W.  ReR.  122) 149 

Londegan  v.  Hammer  (30  Iowa,  508) ...  580 

Long  V.  Colburn  (11  Mass.  97).. 432.  549,  550 

V.  Hartwell  (5  Vroom,  116) . .  .93,  95,  414 

V.  Pool  (68  N.  C.  479) 315 

Longmeid  v.  HoUiday  (6  Eng.  L,  &  Eq. 

761) 666 

Longworth  v.  Conwell  (2  Blackf.  469)  . .  224 

Loomis  V.  Barker  (69  111.  360).. 784,  789,  1044 

1).  Simpson  (13  Iowa,  532) 185,  998 

Loon.  The  (7  Blatch.  244) 717 

Loop  V.  Litchfield  (42  N.  Y.  351) .     666 

Loraine  v.   Cartwright  (3  Wash.   151) 

815,  484 

Lord  V.  Burbank  (18  Me.  178) 819 


SECTION 

Lord  V.  Jones  (24  Me.  439) 674 

V.  Oconto  (47  Wis.  380) 190 

Lorie  v.  North  Chicago  City  Ry  Co.  (32 

Fc  d.  Rep.  270;   l:,b 

Loring  v.  Brodie  (134  Mass.  453). . .  .723,    786 

Losee  v.  Clute  (51  N.  Y.  494) 666 

Louisiana  State  BauK   v.   Seuecal  (13 

La.  525)  729 

Louisiaua  Nat.  Bank  v.  Laveille  (53  Mo. 

,       .      280)  717 

LOUIS'  iile  Coffin  Co.  v.  Stokes  (78  Ala. 

"72) 62,      63 

Louisville,  &c.  R.  R.   Co.  v.  Blair  (4 

Baxt.  407) 749 

«.  ColHns  (2  Duv.  114) 667 

V.  McVay  (98  Itid.  391) 167 

V.  Orr  (84  Ind.  50) 659 

Louk  V.  Woods  U5  111  256)  78 

Louther  v.  Carltou  (2  Atk.  242) 722 

Love  i>.  Miner  (53  Ind  294)  ...  613,  966,    967 
Lovell  V.  Howell  (L.  R.  1  C.  P.  D.  161)..     668 

V.  Williams  (125  Mass.  439) 86 

Lovett  V.  Brown  (40  N.  H.  511)  675,  684,    865 

Lovill  u.  Hawk  (1  Id.  101) 668 

Low  V.  Conn.  &c.  R    R.  Co.  (46  N.  H. 

^284) 148 

V.  Perkins  (10  Vt.  532) 77 

V.  Settle  (22  W.  Va.  387) 809,    810 

Lowell  u.  Mo.se  (1  Meic.  475) 75.^ 

Lowery  v.  Stewart  (25  N.  Y.  239) '.  1049 

Lowry  v.  Erwin  (3  Hob.  192) 685 

V.  Harris  (12  Minn.  255) 167,     490 

Lowther  i;.  Carlton  (2  Atk.  242) 722 

V.  Earl  of  Radnor  (8  East.  113) .  .580,    587 
Luby  V.  Hudson  River  R.  R.  Co.  (17  N 

Y.  131) 715 

Lucas  V.  Allen  (SO  Ky.  681) 34 

V.  Bank  of  D.irien  (2  Stew.  321)..'..    723 

V.  Godwin  (3  Bing.  N.  C.  737) 601 

w.  Peacock  (9  Bear.  177) 870 

V.  Pico  (55  Cal.  126) 34 

Lucena  r.  Crawford  (2  B.  &  P.  N.  B 

269) 100.T 

Ludwig  V.  Gillespie  (105  N.  Y.  6,53).  755,    757 
Luf  burrow  v.  Henderson  (30  Ga.  483) . .     648 

Lufkinv.  Mavail  (25  N.  H.  82) 59 

Luke  V.  Grigg  (30  N.  W.  Rep.  170) 3.32 

Lunibard  v.  Aldrich  (8  N.  H.  .31) 318 

Lumleyu  Corbett  (18  Cal.  494) 33.H 

V.  Gye  (2  El.  &  Bl.  216) 793 

Lumpkin  v.  Wilson  (5  Heisk.  555).. 335, 

326,    997 

Lund  i\  Seaman's  Bank  (37  Id.  129) 527 

V.  Tyngsborough  (9  Cush.  36) 715 

Luning  v.  Wise  (64  Cal.  410) 393 

Lupton  V.  White  (15  Ves.  Jr.  432) 469 

Luske  V.  Hotchkiss  (37  Conn.  219) 646 

Luthrell  v.  Hazen  (;^  Sneed.  20)..   ..r'^5,    736 

Lutz  V.  Linthicuin  (8  Pet.  163)  419,     421 

Lycoming  Fire  Ins.  Co.  v.  Jackson  (83 

III.  302) ..    931 

Lyell  V.  Sanbourne  (2  Mich.  109) 84 

Lyle  V.  Murray  (4  Sandf.  590) 530,  1023 

Lyman  v.  Norwich  University  (28  Vt. 

560)  149 

V.  White  River  Bridge  Co.  (2  Aik. 

255) 44 

Lynch  v.  Coel  (13  L.  T.  548) 813 

V.  Commonwealth  (16  S.  &  R.  .368) 

816,  8-.'0,     839 
V.  Fallon  (11  R.  I.  311). . .  .66,  67,  643, 

953,    973 

V.  Jennings  (43  Ind.  276) 533 

V.    Mercantile   Trust    Co.   (18  Fed. 

Rep.  486)   74.3,     744 

Lyndeborough  Glass  Co.  v.  Massachu- 
setts Glass  Co.  (Ill  Mass.  315).. 

118,    121 
Lyne  v.   Bank  of  Kentucky  (5  J.    J. 

Mar.  545) 729 

Lynn  v.  Burgoyne  (13  B.  Mon.  400) 195 


Ixviii 


TABLE    OF    CASES    CITED. 


SECTION 

Lyon  V.  Culbertson  (83  111.  33) . .  .85,  485,  989 

V.  Jerome  (26  Wend.  485)..  ..41,  185,  189 

V.  Kent  (45  Ala.  656) 57,  60 

V.  Mitchell  (36  N.  Y.  235).... 24,  953,  974 

V.  Pollock  (99  U.  8.668) 82,  318 

V.  Simpson  (12  Daly,  58) 745 

V.  Williams  (5  Gray,  557) 448,  957 

Lyons  v.  MiUer  (6  Gratt.  487) 929 

M. 

Maanss  v.  Henderson  (1  East,  835) 693 

Macbeath  v.  Haldimand  (1  T.  R.  172). ..  559 
Macfarlane  v.  Qiannacopulo  (3  Huri.  & 

Nor.  859) 698 

Macgruder  v.  Peter  (4  Gill.  &  J.  333). . .  321 

Ma<-hette  v.  Wanless  (2  Colo.  169) 883 

Mack  V.  Bragg  (30  Vt.  571) 635 

Mackay  v.  Bloodgood  (9  Johns,  285). . .  96 

Mackenzie  v.  Scott  (6  Bro.  P.  C.  280). . .  520 
Mackersy  v.  Ramsays  (9  Clark  &  F. 

818) 514 

Mackey  v.  Adair  (99  Penn.  St.  143) 813 

V.  Dillenger  (73  Penn.  St.  85) 995 

Macklot  V.  Davenport  (17  Iowa,  379) ...  588 

Maclure,  Ex  parte  (L.  R.  5  Ch.  737) ....  211 

Madden  v.  Kempster  (1  Camp.  12) 677 

Maddox  v.  Brown  (71  Me.  432) 737,  738 

Maddux  v.  Bevan  (30  Md.  485) . .  150,  164,  813 

Madry  v.  Newman  (1  C.  M.  &  R.  402) . . .  832 

Magee  v.  Atkinson  (2  M.  &  W.  440). 5.58,  769 
Magill  V.  Hinsdale  (6  Conn.  464a). .  .421, 

423,  446 

Maguire  v.  Dinsmore  (62  N.  T.  35) 474 

V.  Hughes  (13  La.  Ann.  281) 586 

Mahood  v.  Tealza  (26  La.  Ann.  108) ....  39 

Maine  Stage  Co.  v.  Longley  (14  Me.  444)  97 
Maitland  v.  Martin  (85  Penn.  St.  120). . . 

652,  977,  1031 
Makepeace  v.  Rogers  (4  De  Q.  J.  &  S. 

649) 528,  534 

Mallr.  Lord  (39  N.  Y.  381) 740 

Mallough  V.  Barber  (4  Camp.  150) 510 

Malone  v.  Hathaway  (64  N.  Y.  5).  .6B4, 

665,  668 

V.  Hawley  (46  Cal.  409) 659,  666 

V.  Morton  (84  Mo.  4:^6) 576 

Maltby  V.  Christie  (1  Esp.  340) 908 

Manr.  Given  (23  Me,  55) 98 

V.  Shiffner  (2  East.  523) 693 

Manby  v.  Scott  (1  Mod.  125) 62 

Manchester  Bank  v.  Fellows  (28  N.  H. 

302) 808,  810 

Mandeville  v.  Guernsey  (38  Barb.  225)..  883 

V.  Reynolds  (68  N.  Y.  528) 813,  819 

V.  Welch  (5  Wheat.  277) 533 

Mangold  v.  Thorpe  (33  N.  J.  134> 580 

Manhall  v.  Hahn  (17  N.  J.  L.  425)... 647.  648 
Manhattan  Life  Ins.  Co.  v.  Warrick  (2() 

Gratt,614) 269 

V.  Weill  (2S  Gratt,  389) 931 

Manley  V.  Headley  (10  Kan.  88) 81S 

Mann  v.  Chandler  (9  Mass.  335) 436 

V.  Forrester  (4  Camp.  60) 693 

V.  Oriental  Print  Works  (11  R.  L 

152)  667 

V.  Robinson  (19  W.  Va.  49) 824,  326 

Manning  v.  Gasharie  (27  Ind.  399).... 6,  129 

V.  Hallenbeck  (27  Wis.  202) 677 

V.  Keenan  (73  N.  Y.  45) 784 

Manning  v.  Young  (28  N.  J.  Eq.  568) . . .  745 

Mansell  v.  Clements  (L.  R.  9  C.  P.  139).  966 
Mansfield    Coal    Co.    v.   McEnery    (91 

Penn.  St.  185) 670 

V.  Borland  (2  Cal.  507) 869,  870 

V.  Mansfield  (6  Conn.  559) 205 

V.  Wilkerson  (26  Iowa,  482) 833 

Manufacturing  C!o.    v.    Morrissey    (40 

Ohio  St.  148) 660,  661,  670 

Maple  V.  Railroad  Co.  (40  Ohio  St.  313) 

699,  752 


8BCTI0?f 

Mapp  V.  Phillips  (32  Ga.  73) 100,  123 

Marbourg  v.  Smith  (11  Kans.  554) 813 

Mardis  v.  Shackleford  (4  Ala.  493).  .824,  a35 

Marfield  v.  Goodhue  (3  N.  Y.  63) 1009 

Marine  Bank  v.  Wright  (48  N.  Y.  1) 1035 

Marine  Co.  v.  Carver  (42  111.  66) 135 

Marizou  v.  Pioche  (8  Cal.  523) 206 

Market  Co.  v.  Jackson  (102  Penn.  St. 

269) 937 

Markey  v.  Adair  (99  Penn.  St.  143) 813 

Markham  v.  Jaudon  (41  N.  Y.  256).. 936, 

945,  1009 

Markley  v.  Quay  (14  Phila.  164) 448 

Marland  v.  Stanwood  (101  Mass.  470) . . .  415 

Marlett  v.  Jackman  (3  Allen,  287) 240 

Marquette  &  Ontonagon  R.  R.  Co.   v. 

Taft  (28  Mich.  289) 396 

Marseilles  Extension  Ry  In  re  (L.  R.  7 

Ch.  Ap.  161) 723,  730 

Marr  v.  Given  (23  Me.  55) . .  .98,  295,  318,  331 

Marsfield  v.  Goodhue  (3  N.  Y.  72) 1016 

Marsh  v.  Chickering  (101  N.  Y.  356) ....  661 

V.  Fulton  County  (10  Wall.  676) 126 

V.  Gilbf-rt  (4  Thomp.  &  C.  259) 234 

V.  Jelf  (3  Fost.  &  F.  2.34) 902 

V.  South  Carolina  R.  R.  Co.  (56  Ga. 

274) 737 

t».  Whitmore  (21  Wall.  178) 68, 

164.  315,  461.  464,  825 
Marshall  v.  Baltimore  &  Ohio  R.  R.  Co. 

(16HOW.314) 20,22,  645 

V.  Cooper  (43  Md.  46) 86» 

V.  Hann  (17  N.  J.  L.  425) 647 

«.  Haney  (4  Md.  498) 714 

V.  Meech  (51  N.  Y .  143  > 869,  871,  873 

V.  Parsons  (9  C.  &  P.  656) 64« 

V.  Rutton(8T.  R.  545) 56 

V.  Schricker  (63  Mo.  308) 668 

V.  Williams  (2  Biss.  255) 164 

Marston  v.  Gould  (69  N.  Y.  226) . .  936 

Martin  «.  Almond  (25  Mo.  313) 425 

V.  Clarke  (8  R.  L  389) 845 

V.  Cole  (104  U.  S.  30) 441 

V.  Flowers  (8  Leigh.  158) 419 

V.  Harrington  (57  Miss.  208) 869,  872 

V.  Jackson  (3  Casey,  508) 721 

V.  Jackson  (27  Penn.  St  504) 728 

V.  Maynard  (16  N.  H.  166) 486 

«.  Moulton  (8  N.  H  504) 936 

V.  Pope  (6  Ala.  532) 1029,  1032 

V.  Rector  (101  N.  Y.  77) 62 

V.  Schoenberger  (8  W.  &  S.  367) ....  635 

V.Smith  (58  N.  Y.  672) 677 

V.  Smith  (3  South  Rep.  33) 441,  443 

V.  United  States  (2  T.  B.  Monr.  89).  375 

V.  Wade  (37  Cal.  168) 30 

Martindale  v.  Falkner  (3  C  B.  706)....  858 
Martine  v.   International  L.  Ins.  Soci- 
ety (53  N.  Y.  339) 251 

Martini  V.  Colesd  M.  &  S.  147) 756 

Marvel  v.  Manouvrier  (14  La.  Ann.  3)..  810 

Marvin  v.  Elwood  (11  Paige,  365)... 525,  1023 

V.  Muller  (25  Hun,  163) 667 

Marye  v.  Strouse  (5  Fed.  Rep.  483) 936 

Maryland  Fire  Ins    Co.  v.   Dalrymple 

(25  Md.  243) 936,  953 

Mason  r.  Bauman  (62  111.  76) 461,  795 

u  Decker  (72  N.  Y.  59.5) 211 

V.  Whitthorne  (2  Cold.  243) 529 

Massachusetts  Life  Ins.  Co.  v.  Eshel- 

man  (30  Ohio  St.  647) 287 

Massey  V.  Taylor  (5  ("old.  447) 619 

Massio  V.  Watts  (10  U.  S.  148) 4.59 

Mast-rton  v.  Le  Claire  (4  Minn.  163) ...  813 

Mastin  r.  Gray  (19  Kan.  458) 810 

M.ither  V.  Phelps  (2  Root,  1.50) 714 

Mathews  v.  Hamilton  (33  111.  470) 129 

Mathias  v.  Sellers  (86  Penn.  St.  486).680,  684 
Mathiesson,  S:c.  Co.  v.  McMahon  (38  N. 

J.  L.  537) 254,  255,  256,  257 

Matter  of  Goodell  (39  Wis.  232) 804 


TABLE    OF   OASES   CITED. 


Ixix 


SKOTION 

Matterof  H.  (93  N.  Y.  381) 875 

Matter  of  Hall  (50  Conn.  131) 804 

JIatter  of  Mosness  (39  Wis.  509) .  803,  804,  888 

MatWr  of  O'Neill  (90  N.  Y.  584) 804 

Matterson  t).  Blacknier  (46  Mich  393)..  86 

Matthews  v.  Alexandria  (68  Mo.  115)..  190 

uFuller(123  Mass.  446) 164 

V.  Hamilton  (23  111.  470) 875 

V.  Jenkins  (80  Va.  463) 447 

V,  Light  (32  Me.  305). . .  457.  459,  461,  468 
V.  Menedger  (2  McLean,  145)..  1032,  1037 

V.  Sowle  (12  Neb.  398) 319 

V.  Wilson  (27  Mo.  155) 528 

Mauney  v.  Ingrana  (78  N.  C.  96) 674 

Mauri  v.  HefEerman  (13  Johns.  N.  Y. 

58» B68 

Maury  v.  Ranger  (38  La.  Ann.  485). 556,  1051 

Maua  V.  Worthing  (3  Scam.  26) 93 

Maxey  v.  Heckethorn  (41  111.  438) 100 

Maxham  «.  Place  (46  Vt.  434) 881 

Maxwell   v.   Bar  City  Bridge   Co.  (41 

Mich.  453) 190 

V.  Pike  (2Me.8) 590 

May  V.  Bliss  (2■^  Vt.  477) 735,  786 

V.  Buckeye  Mut.  Ins.  Co.  (25  Wis. 

291).: 931 

t).  Hewitt  (3  Ala.  161) 441,  443 

V.  Mitchell  (5  Humph.  Tenn.  365)..  353 

Mayard  v.  Briggs  (26  Vt.  94) 852 

May  berry  V.  Leech  (58  Ala.  339) 648 

Mayerv  Blease  (4  S.  C.  10) 813 

V.  McLure  (36  Miss.  389) 776 

May  hew  v.  Forrester  (5  Id.  615) 931 

V.  Graham  (4  Gill.  363) 696 

V.  Phoenix  Ins.  Co.  (23  Mich.  105).  743 

V.  Prince  (11  Mass.  54) 435 

Maynard  v.  Pease  (99  Mass.  555) 1009 

Mayor,  &c.,  of  Baltimore  v.  Eschback 

(18Md.  282) 291,  292 

V.  Reynolds  (20  Md.  1) 291 

Mayor  of  Macon  v.  Huflf  (60  Ga.  228) . .  463 
Mayton  v.  Texas  &  Pacific  R.  R.  Co. 

(63Tex.77) 669 

McAfiferty  v.  Hale  (24  Iowa.  356) 637 

McAlexander  v.  Wright  (3  T.  B.  Mon. 

189) 808,  810 

McAlpine  v.  Cassidy  (17  Tex.  449) 85, 

808,311.312,  348 

McAndrews  v.  Burns  (89  N.  J.  L.  117) . .  667 

McArthurv.  Slauson  (53  Wis.  41).   ...  966 

McBain  v.  Seligman  (58  Mich.  294) ....  63 

McBratney  v.  Chandler  (22  Kan.  692) . .  22 

V.  Railroad  Co.  (17  Hun,  385) 846 

V.  Rome,  &c.,  R.  R  Co.  (87  N.  Y. 

467)  811 

3IcBride  v.  Farmers'  Bank  (26  N.  Y. 

450) 519 

McCaflferty  v,  Spuyten  Duyvil,  &c..  R. 

R.  Co.  (61  N.  Y.  178) . . .  .666,  747,  748 

McCain  v.  Portes  (42  Ark.  402) 8B9 

McCall  V.  Cohen  (16  S.  Car.  445) . . .  .580,  f.86 

McCann».  McLennan  (3  Neb.  25) 811 

McCants  v.  Bee  (1  McCord.  Ch.  383) ....  129 

V.  Wells  (3  S.  C.  569) 197,  1006,  1026 

McCarthy  v.  Cavers  (66  Iowa,  342) ....  966 

V.  Guild  (12  Mete.  291) 795 

V.  Hampton  (61  Iowa,  282) 600 

V.  Mayor  (96  N.  Y.  1) 646 

V.  Second  Parish  (71  Me.  318). .  .747,  748 

McCarty  v.  Bauer  (3  Kan.  237) . .  590 

McCarver  v.  Nealey  (1  G.  Greene,  360).  375, 

818,    819 

McClain  v.  Davis  (77  Ind.  419) 50 

McCIave  V.  Paine  (49  N.  Y.  561) Q6H, 

967,    969 

McClay  v.  Hedge  (18  Iowa,  66) 637 

McClellan  v.  Parker  (27  Mo.  162) 654 

V.  Reynolds  (49  Mo.  312) Ill,    442 

V.  Robe  (93  Ind.  298) 4:38 

McClenticks  v.  Bryant  (1  Mo.  598) 426 

McClung  V.  Spotswood  (19  Ala.  165) ....  100 


BKOTION 

McClure  v.  Briggs  (58  Vt.  82) 130 

V.  Colclough  (5  Ala.  65) 820 

V.  Evartson  (14  Lea,  495) 152,  382 

V.  Herring  (70  Mo.  18) 419,  423 

McComb  V.  Railroad  Co.  (70  N.  C.  178).  714 

V.  Wright  (4  Johns.  Ch.  667) .  89,  554,  893 

McCombie  v.  Davies  (6  East.  633) 574, 

693  994 
McConnico  v.  Curzen  (2  CaU.  358).. 990,'  10^0 

McCormick  v.  Bush  (38  Tex.  314) 186 

V.  Demary  (10  Neb.  515) 215,  714 

V.  Grogan  (4  E.  &  I.  App.,  L.  R.  97)  459 

V.  Keith  (8  Neb.  143) 854,  375 

V.  Kelly  (28  Minn.  135) 349 

V.  Littler  (85  III.  62) 48 

t).  Malin(5  Blackf.  509) 466 

V.  Roberts  (36  Kans.  552) . .  100 

V.  Wheeler  (36  111.  114) 721,  722  , 

V.  Wood,  &c.,  Co.  (72  Ind.  518) 375 

McCosker  v.  Long  Island  R.  R.  (84  N. 

Y.77) 667 

McCoy  V.  McKowan  (26  Miss.  487) 287 

McCracken  v.   San  Francisco  (16  Cal. 

6-^3) 112.  117,126,137,  168 

McCrary  v.  Ruddick  (33  Iowa.  521). 601,  605 

McCreary  v  Gaines  (55  Tex.  485) . .  .786,  994 

McCreery  v.  Green  (38  Mich.  172) 966 

McCulloch  V.  McKee  (16  Penu.  St.  289).  375 

McCuUough  V.  Flournoy  (69  Ala.  189)..  872 

V.  Moss  (6  Den.  567) 891,  398 

V.  Thompson  (45  N.  Y.  449). . .  .1048,  1049 
McCullough  Iron  Co.  v.  Carpenter  (11 

Atl.  Rep.  176) 212 

McCurdy  v.  Rogers  (21  Wis.  197) 545, 

546,547,  650 

McCutcheon  v.  People  (69  111.  601 ) 746 

McDaniel  v.  Tebbetts  (60  N.  H.  497) ....  588 
McDaniels  v.  Flower  Brook  Mnfg  Co. 

(22Vt.274) 425 

McDermid  v.  Cotton  (2  El.  App.  297). . .  155 

McDermott  v.  Boston  (133  Mass.  349) . .  667 

V.  Clary  (107  Mass.  501) 810 

V.  Hannibal,  &c.  R.  R.  Co.  (73  Mo. 

516) 714,  715 

McDonald  v.  Bennett  (45  la.  456) 674 

V.  Bewick  (51  Mich.  79) 211 

V.  Black  (20  Ohio,  185) 240,  244 

V.  Manufacturing  Co.  (67  Ga.  761) . .  668 

V.  Napier  (14  Ga.  89) 561,  863,  870 

V.  Simpson  (4  Ark.  523) 496 

V.  Smith  (.'S7  Vt.  502) 878 

McDonough  v.  O'Neil  (113  Mass.  92)457,  459 

McDougald  V.  Dawson  (30  Ala.  653) ....  100 

McDowell  V.  McKinzee  (65  Ga.  630). . . .  150 

V.  Simpson  (3  Watts.  Penn.  129)  137,  144 
McElhinney  v.   Kline  (6  Mo.   App.  94) 

854,  856 

McEwen  v.  Mazyck  (3  Rich.  210) 815 

McFarland  v.  McClees  (5  Atl.  Rep.  .50) 

496,  509 

V.  Crary  (8  Cow.  253) 831 

w.  Wheeler  (26  Wend.  467)...   .676,  678 

McGavock  v.  Woodlief  (20  How.  221) ...  966 

McQee  v.  Lam  more  (50  Mo.  425) 448 

McGill  V.  Burnett  (7  J.  J.  Marsh,  640). . ,  32 

McGlynu  v.  Brodie  (31  Cal  376) . . .  .659,  670 

McGoldreck  v.  Willits  (52  N.  Y.  612)  80,  784 

McGowan  v.  McGowan  (14  Gray,  119)..  459 

V.  McGowan  (48  Miss.  553) 463 

V.  St.  Louis,  &c.  R.  R.  Co.  (61  Mo. 

528) 576 

McGraft  v.  Riigee  (60  Wis.  406). . .  .1032,  1033 

McGrath  v.  Bell  (33  N.Y.  Super. Ct.  195)  639 

McGregor  v.  Comstock  (28  N.  Y.  237) . .  873 

V.  Gardner  (14  Iowa,  326) 204 

McGriff  V.  Porter  (5  Fla  373). .  .240,  242,  244 

McGuire  v.  Corwine  (101  U.  S.  108)....  29 

McHany  V.  Schenek  (88111.357) 876 

McHenry  «.  Duffleld  (7  Blackf.  41) 550 

McHugh  V.  Schuylkill  Co.  (67  Penn.  St. 

391) 116 


Ixx 


TABLE    OF    CASES    CITED. 


SECTION 

Mclntyre  v.  Carver  (2  W.  &  S.  393)  673, 

676,  684 

V.  Park  (11  Gray,  102) 138,  139,  167 

V.  Preston  (5  Gil.  48) 439 

McKee  v.  Cheney  (52  How.  Pr.  144). ...  22 

V.  Kent  (24  Miss.  131) 61 

McKenzie  v.  British  Linen  Co.  (6  App. 

Cas.82) 116 

V.  Nevius  (22  Me.  138)  634,  685,  693, 

980,  1033 

McKierman  v.  Patrick  (4  How.  333) ....  810 
McKindley  v.  Dunham  (55  Wis.  515)  339, 

340,  842 
McKinley  v.  Chicago,  &c.  Ry  Co.  (44 

Iowa,  314) 740,  741 

V.  Irvine  (13  Ala.  681) 461 

V.  McGreg  or  (3  Whart.  369) 62 

McKinster  v.  Bank  of  Otica  (9  Wend. 

46) 511 

McLachlin  v.  Brett  (105  N.  Y.  391) 774 

McLaren  v.  Hall  (26  Iowa.  297) 56,  63 

McLaughlin  v.  Gilmore  (1  111.  App.  563)  884 

McLean  v.  Dunn  (4  Bing.  722) 146.  179 

V.  Mining  Co.  (51  Cal.  255) 668 

McLellan  v.  Longfellow  (32  Me.  494) ...  884 

V.  Reynolds  (49  Mo.  312) 441,  443 

McLeod  V.  Evans  (66  Wis.  401) 536,  537 

McLeran  v.  McNararus  (55  Cal.  508) ...  812 

McLure  v.  Evartson  (14  Lea,  495) 382 

McMaban  v.  McMahan  (13  Penn.  St. 

376) 167,  168 

McMahon  v.  McGraw  (26  Wis.  614)  457, 

459,  488 

V.  Sloan  (12  Penn.  St.  229) 785,  786 

V.  Smith  (47  Conn.  221) 27 

McManus  v.  Crickett  (1  East,  106) .  .740,  741 
McMasters  v.  Pennsylvania  R.  R.  Co. 

(67Penn.  St.  378) 281 

McMechan  v.  Baltimore  (3  Har.  &  J. 

534) 892 

McMillan  v.  Vanderlip  (12  Johns.  165) 

635,  636 

McMinn  v.  Richtmyer  (S  Hill,  2S6) 386 

McMorris  v.Simpson  (21  W<-nd  610),  477,  998 

McMurry  v.  Mobley  (o9  Ark.  309) 457 

McMurtry  v.  Brown  (6  Neb.  a6S) 93,  96 

V.  Frank  (4  T.  B.  Monr,  39) 93 

McNamara  v.  McNamara  (62  Ga.  200).  87 

McNaughten  v.  Partridge  (1 1  Ohio.  223)  93 

McNaughton  v.  Moore  (1  Hay  w.  189)  . .  247 
McNeil  V.  The  Tenth  National  Bank  (46 

N.  Y.  325) 786,787,  788 

McNeillv  V.  Continental  L.  Ins.  Co.  (68 

N.  Y.  23) 224 

McNevins  v.  Lowe  (40  111.  210) 498,  829 

Mcpherson  v.  Cox  (86  N.  Y.  472) 812 

V.  Cox  (96  U.  S.  404) 862,  845 

V.  NeufEer  (11  Rich.  267) 1037 

McReady  v.  (xiiardians  of  the  Poor  (9 

S.  &R.  94) 78 

McWilliams  v.  Detroit   Mills   Co.    (81 

Mich. 275) 64 

McWhorter  v.  McMahon  (10  Paige,  386)  89 

McWilliams  v.  Jenkins  (72  Ala.  480)  870,  872 

Meacham  v.  Dudley  (6  Wend.  515) 810 

Meadv  Engs  (5  Cow.  303) 511 

V.  Spalding  (12  West.  Rep.  405) 63 

Meade  v.  Rutledge  (1 1  Tex.  44) 623 

Means  V.  Swormsteclt  (32  Ind.  87) 438 

Meany  v.  Head  (1  Mason,  819) 675,  865 

Meara's  Admr.  v.  Holbrook  (20  Ohio  St. 

1.37) 664,  665 

Mechanics'  Bank  v.  Bank  of  Columbia 

(5  Wheat,  326).  .441,  442,  443,  449,  769 

V.  Merchants'  Bank  (6  Mete.  13)315,  512 
w.  New  York,  &c.  R.  R.  Co.  (13  N. 

Y.  632)     284 

V.  Schaumburg  (38  Mo.  288)  301,  308,  392 

V.  White  Lead  Co.  (35  N.  Y.  505). ...  439 
Mechanics',  &c.  Bank  v.  Farmers',  &c. 

Bank  (60  N.  Y.  40) 765 


SEOnOH 

Medway  Cotton  Manufactory  v.  Adams 

(10  Mass.  360) 753 

Meech  v  Smith  (7  Wend.  N.  Y.  315). ...  550 

Meeker  v.  Claghorn  (44  N.  Y.  349) .  .558,  696 

V.  Hurd  (31  Vt.  642) 651 

Megary  v.  Funtis  (5  Sandf.  376) 373 

Meifrgs  v.  Meiggs  (15  Hun,  453) 784 

Meister  v.  Cleveland  Dryer  Co.  (11  111. 

App.  227) 155 

Melledge  v.   Boston  Iron  C!o.  (6  Cush. 

158) 153 

Mellen  v.  Moore  (68  Me.  390) 438,  442 

Mellishu.  Bell  (15  East.  4) 756 

Melville  v.  Lamar  Ins.  Co.  (80  111.  446). .  376 
V.  Missouri  River,  &c.,  R.  R.  (4  Mc- 

Crary,  194) 667 

Memphis,  &c.,  R.  R.  Co.  v.  Maples  (63 

Ala.601) 714 

Menkins  v.  Lightner  (18  El.  282) 47 

Menvill's  Case  (13  Co.  19) 750 

Menzies  v.  Rodrigues  (1  Price.  Ezch. 

92) 854 

Mercantile  Ins.  Co.  v.  Hope  Ins.  (3o.  (8 

Mo.  App  408) 798 

Merchants'  Bank  v.  Central  Bank  (1 

Ga.  418)   219,  391,  417,  445,  446 

V.  Stafford  Bank  (44  Conn.  565) ....  511 

V.  State  Bank  (10  Wall.  604) 717 

Merchants'   Despatch  Transp.  Co.  (59 

N.  Y.  258)  484 

Merchants,  &c..  Bank  v.  Farmers,  &c.. 

Bank  (60  N.  Y.  43) 1036 

Merchants,  &c.,  Transp.  Co.  v.  Leysor 

(89  111.43) 714 

Merchants'  National  Bank  i>.  Goodman 

(109  Penn.  St  422) 614 

V.  Trenholm  (12  Heisk.  520) 994,  998 

Mercier  v.  Copelan  (7-3  Ga.  638) 130 

V.  Hemme  (50  Cal.  606) 686 

Meredith  v.  Crawford  (34  Ind.  399) 651 

Merle  v.  Andrews  (4  Tex.  200) 633 

Merriam  v.  Wolcott  (3  Allen,  260) 929 

Merrick's  Estate  (5  W.  &S.,  P.  9).. 769,  1043 

Merrick's  Estate  (8  W.  &  S.,  P.  402). ...  249 

Merrill  v.  Bank  of  Norfolk  (19  Pick.  32)  539 

V.  Farmers,  &c.,  Co.  (24  Hun,  300). .  189 

V.  Kenyon  (48  Conn.  314) 696,  699 

«.  Trust  Co.  (24  Hun,  300) 41 

V.  Wilson  (6  Ind.  426) 554 

Merry  v.  Lynch  (68  Me.  94) 240,  241 

Merryman  v.  David  (31  111.  404) 461,  470 

V.  Euler  (59Ind.  588) 878 

Mervin  t;.  Lewis  (90  111.  505)   250 

Metcalf  V.  Denson  (4  J.  Baxt.  565) 564 

V.  Williams  (104  U.  S.  98) . .  .441,  443,  443 

Methuen  Co.  v.  Hayes  (-33  Me.  169) 9 

Meuser  v.  Risdon  (36  Cal.  239) 190 

Meyer  v.  Atkins  (29  La.  Ann.  586)  221 

V.  Baldwin  (53  Mass.  263) 129,  396 

V.  Barker  (6  Binn.  228) 554 

V.  Hanchett  (39  Wis.  419)  . .  67,  643, 

644  972 

V.  Hanchett  (43  Wis,  246) ]  953 

V.  Hehner  (96  111.  400) 224 

t).  King  (29  La.  Ann.  567) 84,  96 

V.  Morgan  (51  Miss.  21).  149,  155,  164,  994 
V.  VirRinia,  &c.,  R.  R.  Co.  (16  Nev. 

341) 714 

Michael  v.  Bacon  (49  Mo.  474) 39 

V.  Jones  (84  Mo.  578) 646,  558 

V.  Mutual  Ins.  Co.  (10  La.  Ann.  737)  232 

Michel  V.  Kal.ser  (25  La.  Ann.  57) 896 

Michigan  Central  R.  R.  Co.  v.  Carrow 

(73  111.  348) 715 

V.  Coleman  (28  Mich.  440) 715 

V.  Goiijjar  (55  111.  503) 405,  9.51 

V.  Smithson  (45  .Mich.  212) 659 

Michigan  Ins.  Co.  v.  Leavenworth  (30 

Vt.  11) 240,245,  246 

Michoud  V.  Girod  (4  How.  503) 4H2 

Mickelberry  v.  Harvey  (58  Ind.  523) 63 


TABLE    OF   OASES    CITED. 


Ixxi 


SECTION 

Mlddloton  v.  Fowler  (1  Salt.  282) 741 

Middleton,  &c..    Road   v.    Watson   (1 

Rawle,  330) 535 

Mlhill's  Mfg  Co.  V.  Camp  (49  Wis.  130).  729 

Milbank  v.  Dennistown  (31  N.  Y.  386). .  481 

w.  Dennistown  (1  Bosw.  246) 1016 

Milburn  v.  Bellonl  (34  Barb.  607) 348 

Mildred  v.  Hermano  (8  App. Cases,  874)  769 

Miles  V.  Ervin  (1  McCord's  Ch.  524). . . .  878 

V.  Og:den  (.54  Wis.  573) 149 

V.  O'Hara  (1  Serg.  &  R.  32) 443 

r.  Rich  wine  (2  Rawle,  199) 376 

«.  Thorne  (38  Cal.  335) 23 

Mill  V.  Hawker  (L.  R.  10  Ex.  92) 574 

Millar  v.  Cuddy  (43  Mich.  273) 604,  605 

Millard  v.  Jenkins  (9  Wend.  298) 580 

V.  Republic  Bank  (3  McAr.  54) 882 

Miller  V.  Bavnard  (2  Houst.  555) 895 

V.  Beal  (2H  lud.  234) 842 

V.  Board  (44  Cal.  166) 129,  133 

V.  Davidson  (3  Oilman,  518) 456 

V.  Delamater  (12  Wend.  433) 62 

V.  Edmonston(8  Blackf.  291) 375 

V.  Finley  (26  Mich.  249) 49 

V.  Ford  (4  Rich.  376) 426,  559 

«.  Godd  ard  (34  Me.  102) 634.  C35 

V.  Hope  (2  Shaw,  125) 580 

V.  Lane  (13  111.  App.  648) 819 

V.  Lea  (35  Md.  30b) 774,  1039,  1043 

V.  Marston  (35  Me.  153) 674,  676 

t>.  Newell  (20  S.  C.  122) 846 

V.  PlicBnix  Ins.  Co.  (27  Iowa,  203)...  931 

i».  Rucker  (1  Bush,  135) 588 

V.  Schneider  (19  La.  Ann.  300) 994 

V.  Scott  (21  Ark.  396) 818 

V.  Seare(2Bl.  1145) 580 

V.  Smith  (112  Mass.  470) 607 

V  Stone  Co.  (1  111.  App.  103) 155 

V.  Watt  (70  Ga.  385) 63,  558 

V  Wilson  (24Penn.  St.  114) 830 

Miller's  Appeal  (6  Casey,  478) 4ti9 

Milligan  i'.  l.yle  (24  La.  Ann.  144) 443 

V.  Wedge  (12  Ad.  &  El.  737) 747 

Milliken  v.  Coombs  (1  Greenl.  343) 142 

Mills  V.  Hunt  (20  Wend.  431) 554,  913 

V.  Mills  (40  N.  Y.  543) 22 

V.  O'Hara  (1  S.  &  R.  32) 443 

V.  Williams  (16  S.  C.  593) 394 

Miner  v.  Phoenix  Ins.  Co.  (27  Wis.  693).  931 

V.  Tagert  (3  Binn.  204) 510 

Minett  v.  Forrester  (4  Taunt,  541) 263 

Minnesota  Cent.  R.  R.  Co.  v.  Morgan  (52 

Barb.  217) 195,  281 

Minnesota   Linseed   Oil   Co.  v.    Mon- 
tague (65  lowM,  67) 484 

Minor  v.  Mechanics'  Bank  (1  Pet.  46). .  281 

Minturn  v.  Main  (7  N.  Y.  220) 756,  898 

Mirabite  v.  Imperial,  &c.  Bank  (L.  R. 

3  Exch.  Div.  164) 689 

Miranda  v.  City  Bank  (6  La.  740). .  .514,  518 

Mish  V.  Wood  (34  Penn.  St.  451)  607 

Missouri   Furnace  Co.  v.  Abend  (107 

111.  44) 660.  661,  670 

Mitchell  V.  Bromberger  (2  Nev.  345)  . .  887 

V.  Crassweller  (13  Com.  Bench.  237)  738 

V.  Maupin  (3  T.  B.  Mon.  185) ........  320 

W.Robinson  (80  Ind.  281).... 664,  665,  668 

V.  Sproul  (5  J.  J.  Marsh.  264) 93 

V.  Zimmerman  (109  Penn.  St.  183) . .  895 

Mitchumu.  State  (11  Ga  615) 715 

Mitthoff  V.  Byrne  (20  La.  Ann.  36?) ....  554 
Mobile,  &c.  R.  R.  v.  Ashcroft  (48  Ala. 

15) 714,  715 

Mobile,  &c.  R.  R.  Co.  v.  Clanton  (59 

Ala.  392) 647,  648 

Mobile,  &c.  Ry  Co.  v.  Yeates  (67  Ala. 

164) 881 

Mobile  &  Montgomery  Ry  Co.  v.  Jay 

(65  Ala.  113) 1.55,  157 

Mohawk  Bank  v.  Burrows  (6  Johns. 

Ch.  317) 878 


SKOTIOlf 

Mohr  w.  Tulip(40  Wis.  82) 50 

Moinett  v.  Days  (57  Tenn.  431) 469,  470 

Moir  V.  Hopkins  (16  lil.  313) . . .  .735,  736,  739 

Moley  r.  Brine  (120  Mass.  324) 55 

Mollett  V.  Robinson  (L.  R.  7  H.  of  L. 

802) 273,  933 

Blolton  V.  Camroux  (4  Exeh.  17) 48 

Moneypenny  v.  Hartland  (1  C.  &  P.  352)  496 

Montague  G.  H.  The  (4  Blatch  464)...  S.'iS 

Monte  AUegre,  The  (9  Wheat.  645) . 904,  925 
Montieth  v.    Great   Western  Printing 

Co.  (16  Mo.  App.  450) 915 

Montgomery  v.  Dorion  (7  N.  H.  484)....  423 

V.  United  States  (15  Wall.  395) 269 

Montgomery  County  v.  Robinson  (85 

111-  1-4) 470 

Montgomery  County  Bank  v.  Albany 

City  Bank  (7  N.Y.  459) 514,  539 

Montrion  v.  Jeffrey  (2  C.  &  P.  113) .  .824,  825 
Montross  v.   Koger  Williams  Ins.  Co. 

(49  Mich.  477) 221 

Moody  V.  Smith  (iON.  Y.  598) 89 

Moon  V.  Guardians   (3  Bing.  N     Cas 

814) ; 195 

Mooney  u.  E!d-r  G6  N.  Y.  238) 612 

t).  Musser  (45  Ind    115)  1009 

Moore  v.  Appleton  (26  Ala.  6:33) . . .  .653,  654 

r.  Barnett  (17  Ind.  349) 188 

V.  Bettis  (11  Humph.  67) 714 

V.  Bracken  (-^7  Hi.  23) 878 

V.  Bray  (10  Penn.  St.  524) 881 

V.  Ewing  (Coxe,  144) 77 

V  Granby  Mining  Co.  (80  Mo.  86)  . .  702 

V.  Hall  (48  Mich.  143) 243  387 

v.  Hershey  (90  Penn,  St.  196) 50 

V.  Hillabrand  (16  Abb.  N.  Cap.  477)  1044 

V.  Hitchcock  (4  Wend.  292).674,  680,  684 

V.  Lockett  (2  Bibb.  67) 142,  318 

V.  Mandlebaum  (8  Mich.  433)... 461,  466 
V.  Metropolitan  National  Bank  (55 

N.  Y:41) 787 

V.  Moore  (5  N,  Y.  256) 461,  469 

V.  Sockett  (2  Bibb.  Ky.) 143 

V.  Stone  (40  Iowa,  2.")9) 201 

V.  Thompson  (.32  Me.  497) 414 

V.  Thompson  (9  Phila.  164) 538,  1013 

V.  Turbeville  (2  Bibb.  602) 743 

Moors  V.  Kidder  (106  N.  Y.  32) 689 

Moral  School  Tp.   v.  Harrison  (74  Ind. 

,,     ,,    93) 440 

Mordhurst  v  Boies  (24  Iowa,  99) 393 

More  V.  Hall  (48  Mich.  143) 243 

Moreau  v.  Dumagene(20  La.  Ann.  230).  646 

Morehouse  v.  Northrop  (33  Conn.  380)  113 
Morford  v.  Ambrose  (3  J.  J.  Marsh. 

688) 635 

Morgans.  Brown  (12  La.  Ann.  159) 858 

V.  Congdon  (4  N.  Y.  .551) 674 

V.  Darragh  (39  Tex.  171)  ..   894 

V.  Dudley  (18  B.  Mon.  693) 580 

W.Mason  (4  E  D.  Smith,  6.36) 963 

V.  Richardson  (13  Allen.  410) 612 

V.  Tener  (83  Penn.  St.  305) 516 

Morier    v    St.   Paul,  &c.  Ry  Co.    (31 

Minn.  351) 737,  788 

Morin  v.  Martz  (13  Minn.  191) 211 

Morris  v.  Cleasby  (1  M.  &  S.  581).,  .756,  757 

V.  Cleasby  (4  M.  &  S.  5G6) 520,  1014 

Morrell  v.  Ci.ddin?  Ci  Allen,  403)..  435,  447 

Morrill  v.  Cone  (22  How.  75) 326 

V.  Graham  (27  Tex.  646) 824,  825 

V.  Thun^ton  (46  Vt.  732) 585 

Morris  v.  Barnes  (35  Mo.  412) 599 

V.  Bowen  (52  N.  H.  416) 848 

V.  Carey  (27  N.  J  3771) 580 

V.  Hall  (41  Ala.  511) 915 

V.  Watson  (15  Minn.  212) 323 

Morris  Run  Coal  Co.  v.  Barclay  Coal 

Co.  (68  Penn.  St.  173) 85 

Morrison  v.  Bowman  (29  Cal.  337) 419 

V.  Currle  (4  Duer,  79) 561 


Ixxii 


TABLE    OF    OASES    CITED. 


SECTION 

Morrison  v.  Holt  (42  N.  H.  478) 62 

V.  McDonald  (21  Me.  550) . . ..... ....    580 

V.  Thompson  (L.  B.  9  Q.  B.  480).643,    972 
V.  Whiteside  (17  Md  45:2) . .  . . . . .  .9,    106 

Morrow  v.  Hig:gins  (29  Ala.  448) .  .89,  95.    414 

Morse  v.  Cooke  (13  Price,  4; .'J) 871 

Morton  v.  Cowell  (65  Md  359) 212 

V.  Preston  (18  Mich.  60) 786 

V.  ScuU  (23  Ark.  :i89) 279,    287 

Moseley  v.  Norman  (74  Ala.  422) 869, 

870,871,873,    874 

Moses  V.  Barley  (55  Ga.  283) 843,    845 

V.  Bierling  (31  N.  Y.  462) 612,    967 

Mosley  v.  Buck  (3  Munf .  232) 461,    470 

Moss  V.  Curiimings  (44  Mich.  359) 578 

V.  Livingston  (4  N.  Y.  208)  439 

V.  Pacific  R.  R.  Co.  (49  Mo.  167) 662 

V.  Rossie  Co.  (5  Hill,  N.  Y.  137)..  148,    179 

V.  Tribe  (3  Fost.  &  F.  297) 48 

Mostyn  v.  Fabrisas  (1  Cowp.  172) 580 

Motley  V.  Head  (43  Vt.  6:i3) 257 

Mott  V.  Foster  (45  Cal.  72) 811 

V.  Hicks  (1  Cow.  513t . .  .436,  437,  443,    550 

V.  Smith  (16  Cal.  533) 826 

Moulton  V.  Bowker  (115  Mass.  36) 811. 

812,    816 

V.  Gage(138Mass.  390) 656 

u  Trask  (9  Mete.  577) 640 

Mound  Citv  Mutual  L.  Ins.  Co.  v.  Huth 

(49  Ala.  530) 121,    750 

MountCord  v.  Scott  (3  Mad.  40) 719,    721 

Mount  Olivet  Cemetery  v.  Shubert  (2 

Head,  116) 281 

Mowatt  V.  Wright  (1  Wend.  855) 565 

Moxon  V.  Bright  (L.  R.  4  Ch.  Ap.  292) . .    534 

Moye  V.  Coydell  (69  N.  C.  93) 813,    819 

Jiludge  V.  Oliver  (1  Allen,  74) 760 

Mudry  v.  Kewman  (1  Cromp.  M.  &  R. 

402) 882 

Mulr  V.  Newark  Savings  Inst.  (1  Green 

537) 745 

Mulca'nis  v.  Janesvile  (67  Wis.  ai) 668 

Muldowney  v.  Illinois  Cent.  R.  R.  Co. 

(39  Iowa,  615) 670 

MuUan  v.  Philadelphia  Steamship  Co. 

(78Penn.  25)  664,665,    668 

Mullen  V.  Keetzleb  (7  Bush.  253) 953 

MuUer  v.  Fuchs  (64  Md.  217) Sfl3 

V.  Pondir  (55  N.  Y.  325) 684,  1037 

Mulliken  v.  Graham  (72  Penn.  St.  484). .     727 

Mulvehill  v.  Bates  (31  Minn.  364) 734, 

735,  736 
Mimdhenk  v.  Central  Iowa  Ry  Co.  (57 

Iowa,  718) 714 

Mundine  v.  Pitts  (14  Ala.  84) 721 

Mundorff  v.  Wickersham  (63  Penn.  St. 

87) 148,    775 

Munn  V.  Commission  Co.  (15  Johns.  44)  224, 

279,  287 
Munnikuyson  v.  Dorsett  (2  H.  &  G.  378)  810 
Murdock  v.  Phillips  Academy  (12  Pick. 

244) 619 

Murphy  v.  English  (64  How.  Pr.  362). . .      31 

V.  Helmrich  (66  Cal.  69) 554 

u  Ottetiheimer  (84  111.  .39) 224 

V.  Southern  Life  Ins.  Co.  (59  Tenn. 

440) 279 

Murray  v.  Beard  (102  N.  Y.  505) 953 

V.  Brooks  (41  Iowa,  45) 348.    349 

V.  Carothers  (1  Mete.  71) 547 

V.  East  India  Co.  (5  B.  &  Aid.  204), 

393,  1004 

V.  House  (11  Johns.  464) 813 

V.  Lylburn  (2  Johns.  Ch.  441) 536 

V.  Smith  (4  Daly.  277) 349 

V.  Vanderbilt  (39  Barb.  140) 526 

Murray  7H?-e  (3  W.  N.  190) 867 

Murrock's  Case  (2  Bland,  461) 896 

Murry  v.  Ocheltree  (59  Iowa,  435)  35 

Muscatine,  &c.,  Co.  v.  Hortoii  (38  Iowa, 

33) 688 


SEonoif 

Muscott  V.  Stubbs  (24  Kans.  520) 601 

Musser  u.  Johnson  (42  Mo.  74) 441 

Mussey  w.  Beecher  (3  Cush.  511) 100 

Mussey  v.  Scott  (7  Cush.  215) 425 

Mustard  v.  Wohlford's  Heirs  (15  Gratt, 

329) 61 

Mutual  Ben.  L.   Ins.  Co.  v.  Brown  (30 

N.  J.  Eq.  202) 99 

u  Cannon  (48  Ind.  264) 714 

Myer  v.  Hobbs  (57  Ala.  175) 747 

Myers  v.  Crockett  (14  Tex.  257) 84:^, 

847,  854,  856,  857 

V.  Entriken  (6  W.  &  S.  44) 990,  1021 

V.  Estell  (47  Miss.  4) 647,  649 

V.  Gilbert  (18  Ala.  467) 476 

V.  McHugh  (16  Iowa,  335) 869 

V.  Walker  (31  III.  354) 619 

Myles  V.  Myles  (6  Bush.  237) 495,  951 

K. 

Nagle  V.  McFeeters  (97  N.  Y.  196) 684 

Naltner  v.  Dolan  (108  Ind.  500) 529,    838 

Narragansett.  Bank  v.    Atlantic  Co.    (3 

Metc282) 148 

Narraguagus    Land     Proprietors     t>. 

Wentworth  (36  Me.  339J 386 

Nash  V.  Drew  (5  Cush.  402) 355 

V.  Mitchell  (71  N.  Y.  199) 56 

V.  Mosher  (19  Wend.  431) 678 

Nashville,  &c.,  R.  R.  Co.  v.  Chumley  (6 

Heisk.  327) 648 

w.  Elliott  (1  Cold.  611) 718 

V.  Jones  (9  Heisk.  27) 667 

V.  Starnes  (9  Heisk.  24) 740,  741,    751 

' "   V.  Wheless  (10  Lea,  741) 667 

National  Bank  v.  Graham  (100  U.   S. 

699) 741 

V.  Insurance  Co.  (104  U.  S.  54).  .536, 

780,    781 
V.  Merchants'  Bank  (91  U.  S.  92). . . 

815,    484 

V.  Norton  (1  Hill,  N.  Y.  572) 730 

National  Exchange  Bank  v.  Granite- 

ville  Mfg  Co.  (3  S.  E.  Rep.  411)..    995 
National  Ins.  Co.   v.  Allen  (116  Mass. 

398) 449,696,701,    772 

National  Iron  Armor  Co.  v.  Bruner  (19 

N.  J.  Eg.  331) 273,    822 

National  Life  Ins.  Co.  v.  Minch  (5:^  N. 

Y.  144) 113,178,    72] 

V.  Minch  (5  Thomp.  &  C.  545) 775 

National  Mechanics'  Bank  v.  National 

Bank  (36  Md  5)  106 

National   Security  Bank  v.  Cushman 

(121  Mass.  490)   730 

Nauman  v.  Zoerhlant  (21  Wis.  466)....  605 
Nave  V.  Lebanon  Bank  (87  Ind.  204) ....  4-39 
Navulshaw  v.  Brownrigg  (2  De  Gex. 

M.  &G.  441) 534 

Nawsom  v.  Thornton  (6  East,  17) 994 

Naylor  v.  Chicago,  &c.,  Ry(53  Wis.  661)    667 
V.  Fall  River  Iron  Works  (118  Mass. 

317, 638 

V.  :\1  angles  (1  Esp.  109) 674 

Neal  V.  Patten  (40  Ga.  363) 103 

Neaves  v.  North  State  Mining  Co.  (90 

N.  C.412) 449 

Needles  v.  Howard  (1  E.  D.  Smith,  62).  497 
Neibles  v.  J.linneapolis,  &c.,  R.  R.  Co. 

(33N.  W.  Rep.  332) 88 

Neill  t).  Billing^Iey  (49  Tex.  161) 990 

Neilsonu.  Lee  ibOCal.  5.55) 966,    967 

Nelson  v.  Aldrid  /e  (2  Stark.  435) 901 

V.  Chicago,  &c.,  R.  R.  Co.  (2  IIL 

App.  180) 1009,  10.35 

r.  Cook  (19  111.440) 816 

V.  Cook  (17  111.  443) 653,    654 

V.  Cowint;  (6  Hill,  336) 348 

V.  Tumlin  (74  Ga.  171) 100 

Nesbit  V.  Hesler  (49  Mo.  383) 967 


TABLE    OF   OASES   OITED. 


Ixxiii, 


SECTION 

Nevan  v.  Roup  (8  Iowa,  207) 674,  676, 

678.  G84,     865 
Newall  V.  Tomlinson  (L.  R.  6  C.  P.  405).    583 

Newberry  v.  Lee  (3  Hill,  523) 816,    839 

Newbert  v.  Cunningham  (50  Me.  231). .. 

869,871,    873 

Newbold  v.  Wright  (4  Rawle,  195) 994 

Newcomb  v.  Brooks  (16  W.  Va.  71) 791 

V.  Peck  (17  Vt.  30^)  810 

Newell  V.  Borden  (128  Mass.  31) 72 

V.  Smith  (49  Vt.  2.5.5) 193 

Newhall  v.  Dunlap  (14  Me.  180) 437 

V.  Vargas  (1.:!  Me.  93) 687 

Newhokl  r.  Wright  (4  Rawle,  19.5) 994 

Newland,  Sx  parte  (L.  R.  4  Cli.  D.  616)    862 

Newland  v.  Woodruff  (60  N.  Y.  73) 1036 

Newman  v.  Greet  (5  N.  E.  Rep.  835). . . .    443 

V.  Greeff  (101  N.  Y.  663) 441 

V.  Reagan  (65  Ga.  512) 215 

V.  Sylvester  (42  Ind.  106). .  .545,  546,    650 
Newson  v.  Douglass  (7  H.  &  J.  417). ...     931 

w.  Thornton  (6  East,  17) 787,    995 

Newton  v.  Bronson  (13  N.  Y.  587). 41,  89,      92 

179,    189 

v.  Forster  (12  M.  &  W.  772) 648 

V.  Newton  (L.  R.  6  Eq.  135) 536 

ti.  Porter  (69  N.  Y.  133) 536 

V.  White  (53  Ga.  395) 714 

New  England  Ins.  Co.  v.  De  Wolf  (8 

Pick.  56) 91,  445,    446 

New  Jersey  Steam  Nav.   Co.  v.   Mer- 
chants' Bank  (6  How.  3441 769 

New  Market  Savings  Bank  v.  Gillet  (100 

m.  254)     436 

New  Orleans,  &c.,  R.  R.  Co.  v.  Burke 

(53Miss.200) 751 

V.  Harrison  (48  Miss.  112) 669 

V.  Hughes  (49  Miss.  258) 662 

New  Orleans  Ins.  Co.  v.  Spruance  (18 

III.  App.576) 769 

New  York  Cent.  Ins.   Co.  v.  National 
Protection  Ins.  Co.  (14  N.  Y.  85) 

463,    798 
New  York  Life  Ins.   Co.  v.  McGowan 

(18  Kan.  300) 287 

New  York  L.  Ins.  Co.  v.  Statham  (93 

U  S.  24) 269 

New  York  Iron  Mine  v.  Negaunee  Bank 

(39  Mich.  644) 391.  396,     898 

New  York  Iron  Mine  v.  Citizens'  Bank 

(44  Mich.  344) 393 

New   York,    &c.    Co.  v.  Harbison  (16 

Fed.  Rep.  688) 546,  647,    559 

New  York.  &c.  R.   R.  Co.  v.  Ketchum 

(27  Conn.  170) 74,     125 

New  York,  &c.  R.  R.   Co.  v.  Schuyler 

(34N.Y.  30) 717 

New  Zealand  Land  Co.   v.  Ruston  (6 

Q.  B.  Div.  474) 774 

Nichol  t).  Martyn  (2  Esp.  732) 215 

Nicholas  v.  Jones  (37  N.  W.  Rep.  679). .     967 

r.  Oliver  (36  N.  H.  219) 439 

Nicholls  V.  Wilson  (11  M.  &  W.  106). ...     854 

Nichols  V.  Coolahan  (10  Mete.  449) 634 

V.  Dennis  (R.  M.  Charlt.  188) 820 

V.  Fi-othingham  (45  Me.  220) 439 

V.  Mudgett  (32  Vt.  546) 30 

V.  Pool  (89  111.  491) 865,    869 

V.  Scott  (12  Vt.  47) 842 

V.  Thomas  (53  Ind.  53) 50 

Nicholson    V.  Chapman  (2  H.  Black- 
stone,  254) 600 

V.  Moog  (65  Ala.  471) 2S7 

V.  Mounsey  (15  Ease,  384) 594 

Nlckalls  V.  Merry  (L.  R.  7  H.  L.  530) ...     910 

Nicoll  V.  Nicoll  (16  Wend.  446) 873 

Nightingale  v.  Oregon  Central  Ry  Co. 

(2  Sawyer,  338) 811 

Nllpsr.  Muzzy  (33  Mich.  61)  841 

Nisbet  V.  Lawson  (1  Ga.  275) 632,    835 

Nixon  V.  Bogin  (26  S.  C.  611) 478 


SKOTIOK 

Nixon  V.  Brown  (57  N.  H.  84), .  .786,  787,  788 

V.  Downey  (49  Iowa.  166).. 554,  957,  1049 

V.  Palmer  (8  N.  Y.  398) 393 

V.  Phelps  (-9  Vt,.  198) 852 

Nixon's  Appeal  (63  Penn.  St.  279) 459 

Noble  u.  Cunningham  (74  III.  51) 287 

Nobleboro  v.  Clark  (68  Me.  87) 435 

Noblesville,  &c.  Co.   v.   Gaiise  (76  Ind. 

142) 734,  735,  736,  740 

Noe  V.  Christie  (51  N.  Y.  270) 71 

Noecker  v.  People  (91  111.  494) 746 

Noel  V.  Drake  (28  Kans.  26.5) 29 

Nolan  V.  Jackson  (16  111.  27.5) 876 

V.  Manton  (46  N.  J.  L.  231) 667 

V.  Thompson  (11  Daly.  314) 215 

Norberg  v.  Heineman  (59  Mich.  210). ..  809 

Norcrosa  v.  Pease  (5  Allen,  331)  772 

Norfolk  V.  Worthy  (1  Camp.  337) 769 

Norman  v.  Peper  (24  Fed.  Rep.  403).  ..  1027 

Norris  v.  Cook  (1  Curi^.  464) 155 

V.  Grier  (76  N.  C.  410) 812 

V.  Hero  (22  La.  Ann.  605) 529 

V.  Spofford  (127  Mass.  85) 800 

V.  Tayloe  (49  111.  17) 791 

Norris'  Appeal  (71  Penn.  St.  106) 469 

North  V.  Metz  (57  Mich.  612) 100 

North    Carolina   State   L.    Ins.  Co.  v 

Williams  (91  N.  C.  69) 616 

North  Missouri  R.  R.  Co.  v.  Stephens 

(36Mo.  150) ....  812 

North  River  Bank  of  Aymar  (3  Hill, 

262) .307,   392,  714,  717,  721 

North  Whitehall  v.  Kellar  (100  Penn. 

St.  105 813 

Northampton     Bank   v.    Pepoon    (11 

Mass.  288) 439 

Northern  Pacific  R.  R.  Co.  v.  Kindred 

(17  Fed.  Rep  77) 470 

Northrup  v.  Germania  Fire  Ins.   Co. 

(48  Wis.  420) 67 

Northwestern  Distilling  Co.  v.  Brant 

(69111.658) 422 

Northwestern    Mut.    F.    Ins.    (3o.     v. 

Blankenship  (94  Ind.  535) ...  .48,  50 

Norton  v.  Blinn  (39  Ohio  St.  145) 525 

Norwich  University  v.  Denny  (47  Vt. 

13) 193 

Norwood  V.  Cobb  (24  Tex.  551 810 

u.  Harness  (98  Ind  134) 529 

Nowell  V.Wright  (3  Allen.  169) 571 

Noyes  v.  Landon  (59  Vt.  569; 467 

V.  Loring  (55  Me.  408) 649,  550 

V.  Marsh  (123  Mass.  286) 29 

V  Smith  (28  Vt.  59) 659,  667 

Nugent  V.  Hickey  (2  La.  Ann.  35S) 390 

Nutzenhclster  v.  State  (37  Ind.  457) 531 


O. 

Oakes  v.  Moore  (24  Me.  214)  673,  676,  678,  865 

Oakland  f.  Carpentier  (13  Cal,  540)  190 

Oakley  v.  Crenshaw  (4  Cow.  N.  Y.  250)  1030 

Obert  V.  Hamniel  (3  Har.  74) 4ti2 

Ocean  Ins.  Co.  v.  Rider  (22  Pick.  210)..  869 
O'Connell  v.  Baltimore,  &c.  R.  R.  (20 

Md.  212) 667 

O'Conner  v.  Arnold  (53  Ind.  20,5)... 112,  375 

O'Connor  v.  Adams  (120  Mass.  427) 663 

V.  Chicago,  &e.  Ry  Co  (27  Minn.  166)  716 

V.  Clopton  (60  Miss.  849) 661 

V.  Roberts  (120  Mass.  227) 668 

Odiorne  V.  Maxcy  (13  Mass.  178)... 279, 

286,  8n2 

V.  Maxcy  (15  Mass.  39) 86 

O'Donnell  v.  Leeman  (43  Me.  158)...  893 
Oelricks  v.  Ford  (23  How.  49).. 446,  556, 

755,  1051 

V.  Ford  (21  Md.  489) 759 

Oestrieh  v.  Gilbert  (9  Hun,  244)  386,  816  820 

Offut  V.  Ayres  (7  T.  B.  Monr.  856) 432 


Ixxiv 


TABLE    OF    CASES    CITED. 


SECTION 

Ogden  V.  Devlin  (45  N.Y.  Super  Ct.  631)  856 

V.  Marahand  (29  La.  Ann.  61). . . ....  149 

V.  Raymond  (22  Conn.  879)  448.  546, 

550,  o5» 

Ossv.  Shuter(l  C.  P.  D.  47) 689 

O'Wara  v  Brophy  (24  How.  Pr.  379)  832,  834 

w.  Carpenter  (23  Mich.  410) 38 

Ohio,  &c.  Ry  Co.  v.  CoUam  (73  Ind.  261) 

662,  667 

Ohio,  &c.  R.  R.  V.  Tindall  (13  Ind.  336)  667 

Ohlquest  v.  Farwell  (32  W.W.  Rep.  1277)  812 
Olcott  V.  Tioga  R.  R.  Co.  (27  N.  Y.  546) 

Old  Colony  R.  R.  v.  Evans  (6  Gray,  31)  211 

Oldham  v.  Sparks  (28  Tex.  425) 8-'6 

Oldbams  v.  Jones  (5  B.  Mon.  458) 468 

Olive  I'.  Smith  (5  Taunt,  56) 1032 

Oliver  r.  Dix  (1  Dev.  &  Bat.  Eq.,  N.  C.) 

158) 425,  558 

V.  Johnson  (24  La.  Ann.  460)....  155,  171 

V.  Moore  (12  Heisk,  482) 1085 

V.  Piatt  (3  How.  333) 469 

Olmstead  v.  Beale  (19  Pick.,  Mass.  628)  685 
Olmsted  v.  New  England  Mortgage  Se- 
curity Co.  (11  Neb.  487) 745 

Olyphant  v.  McNair  (41  Barb.  446).  .366,  415 

Ouson  V.  Cown  (22  Wis.  339) 457,  459 

Oom  V.  Bruce  (12  East,  225) 761 

Orcutt  ['.  Nelson  (1  Gray,  636) 760 

Oregon   MortKage    Co.    v.    American 

Mortgage  Co.  (^  Fed.  Rep.  22)  200 

Ormerod  v.  Dearman  (100  Penn.  St.  561)  27 

w.  Tate(l  East,  464) 862 

Ormes  v.  Dauchy  (45  N.  Y.  Super  Ct. 

85) 89 

Orr  V.  Lacy  (4  McLean,  243) 387 

«.  Tar.ner  (12  R.  L  94) 845 

V.  Ward  (73  111.  318) 211,  215 

Orton  V.  Scofield  (61  Wis.  382) 953 

Osbom  u.Uuited  States  Bank  (9  Wheat, 

73^) 809 

Osborne  v.  Governors  (2  Strange,  728) .  600 

V  Knox,  &c.  H.  R.  (68  Me.  49)..e6r,  669 

V,  Morgan  (180  Wash.  103) 571,  572 

V.  Rider  (62  Wis.  235) 475,  485 

Oscanyon  v.  Arms  Co.  (103  U.  S.  261)  22.  26 

Osgood  V.  Nichols  (5  Gray,  420) 920 

Oskaloosa  v.  Tullis  (25  Iowa,  440) 892 

Oster  V.  Mickley  (35  Minn.  245) 349 

Otesv.  Jones  (21  Wend.  394) 600 

Ottawa  University   v.   Parkinson   (U 

Kans.  159) 850 

V.  Welsh  (14  Kans.  164) 850 

Ousterhout  v.  Day  (9  Johns.  113) 838 

Outon  V.  Rhodes  (3  A.  K.  Marsh,  432)..  28 

Owen  V.  Brockpchmidt  (54  Mo.  285) ....  865 

V.  Mason  (18  How.  Pr.  156) 871 

Owings  V.  Grubbs  (6  J.  J.  Marsh. -31)  441  443 

t).  Hull  (9  Pet.  6U7) 129,  805,  989 

OwBley  V.  Montgomery,  &c.  R.  R.  Co. 

(37Ala.  5C0) 7« 

».  Woolhopter  (14  Ga.  124)  464 

P. 

Pacific  Rolling  MIU  Co.  v.  Dayton  (7 

Sawyer,  67) 129 

Pack  V.  Mayor  (8  N.  Y.  222) 747,  748 

V.  White  (78  Ky.  243) 435 

Packard  v  Nye  (2  Mete.  47). ...  .^. ... .  755 
Packer  v.  Hinckley  Locomotive  Works 

(122  Mass.  484) 224 

Packet  Co.  v.  Clough  (20  Wall,  540)  714.  715 
Packing   Co.   v.    Farmers'   Union   (55 

(-al.  606) 204 

Padfield  u.  Green  (85  HI.  529) .  ..876,  885,  387 

Page  v.  Page  (8  N.  H.  187) 459 

r.  Wells  (37  Mich.  415) 495 

V.  Wight  (14  Allen,  182) 432 

Paice  V.  Walker  (L.  R.  5  Ex.  173) 566 


SECTION 

Paige  r.  Stone  (10  Mete.  160)  889,  391, 

699,  1048 

Paine  v.  Tillinghast  (52  Conn.  532) 279 

V.  Tucker  (21  Me.  138) 93,     137 

Palmer  v.  Ashley  (3  Ark.  75) 531,    824 

V.  Carroll  (24  N.  H.  314) 585 

V.  Cheney  (35  Iowa,  281) 121,     279 

u  Hatch  (46  Mo    ,585) 818,     350 

V.  Haverhill  (9S  Mass.  487) 600 

V.  Holland  (51  N.  Y.  416)  617 

u  Jarmain  (2  M.  &  W   282) 476 

V.  Lawrence  (6  Laus.  282) 580 

V.  Marquette  Rolling   MUl  Co.    (32 

Mich  274) 212,    632 

r.  Oakley  (2  Doug.  433) 685 

V.  Railroad  (3  S.  C.  580) 751 

V.  Stephens  (1  Den.  471) 550 

V.  Williams  (24  Mich.  328) 136 

Palmerton  v.  Haxford  (4  Den.  166) ....     148 
Panama,  &c.  Telegraph  Co.  v.   India 
Rubber.  &c.  Co.  (L.  R.  10  Ch. 

App.  515) 797 

Pannell  v.  Hurley  (2  Col.  241) 781 

Pappa  V.  Kose  (L.  R.  7  C.  P.  32) 588 

Paniell  v.  Rench  (4  McLean,  259) 186 

Parish  r.  Reeve  (63  Wis.  3!5) 14S,    156 

Park  V.  Hamond  (4  Camp,  844)  475,  510, 

954,  1011 

V.  Hammond  (6  Taunt,  495) 931 

Parker  v.  Blighton  (32  Mich.  266) 871 

V.  Brancker  (22  Pick.  40)..  .682,  683,  1009 

V.  Carter  (4  Munf.  273) 881,  8&3,    885 

V.  Crane  (6  Wend.  647) 600 

u.  Kett  (1  Salk.  95) 413 

V.  Parker  (33  Ala  459) 607 

V.  Rolls  (14  C.  B  691) 824,    880 

t).  Smith  (16  East.  382) 268 

V.  Vose  (45  Me.  54) 68,     461 

W.Walker  (8  S   W.  Rep.  391) 967 

V.  Winlow  (7  E.  &  B   942) 755 

V.  Yates  (12  Moore.  5J0) 886 

P.^rkhurst  v.  Johnson  (50  Mich.  70). ...    658 
Parkins  v.  Washington  Ins.  Co.  (4  Cow. 

645) 1011 

Parkinson  v.  Parker  (48  Iowa,  667) 686 

Parkist  v.  Alexander  (1  Johns.  Ch.  894),  457. 
459,  460,  1008 

Parn-iinter  v  Kelly  (18  Ala.  716) 71 

Parnth-r  v.  Gaitskell  (13  East.  437)....    880 

Parsons  v.  Armor  (3  Pet.  413) 868 

V.  Martin  (11   Gray,  112). . .  .196,  281,    485 

V.  Phelan  (134  Mass.  418) 459 

V.  Webb  (8  Greenl.  38) 854 

Partington    v.    Wamsutta  MUIs    (110 

Mass.   468) 688 

Parton  v.  Crofts  (16  C.  B.  N.  S.  11) 932 

Partridge  v.  White  (59  Me.  564) 151 

Paschall  In  re  (10  ^^  all.  483) 862,     863 

Pascoag  Bank  v.  Hunt  (3  Edw.  Ch.  583)    536 

Passano  v.  Acosta  (4  La.  2H) 478 

Passenper  R.  R.  Co.  v.  Young  (21  Ohio. 

St.  518) 734,  740,    741 

Passmore  v.  Passmore  (50  Mich.  626)       885 
Patapsco,   &c.,    Co.    v.    Morrison    (2 

Woods,  395) 323 

Paterson  v.  (Jandasequi  (15  East.  62), 

698,  699 

V.  Knable  (35  Wis.  85) 715 

V.  Wallace  (1  Macq.  748) 659 

Patnote  V.  Sanders  (41  Vt.  66) 625,     >  35 

Patrick  v,  Hazen  (10  Vt.  1&3) 862 

u  Leach  (12  Fed.  Rep.  661) 869 

i;.  Littell  (.36  Ohio  St.  79) 39 

u.  Putnum  (27Vt.  7.59) 682 

Patten  V.  Moor  (29  N.  H.  169) 880 

v.  Patten(75  111.446) 63 

Patterson  v.  Donner  (48  Cal.  369) .34 

V.  Gandasequi  (15  East.  68) 769 

V.  Gage  (23  Vt.  558) 632 

V.  Leavitt  (4  Conn.  50) 77 

V.  Lippincott  (47  N.J.  L.  457)34,  549,    650 


TABLE    OF    CASES  CITED. 


Ixxv 


SECTION 

rattersnn  v.  McGahey  (8  Mart.  48ii). . . .   1032 
V.    Pittsburg,    &c.,    R.    K.  i^o.   (76 

Penn.  St.  389) 660,  661,  670 

Paulr.  Berry  (18111.  158) 135 

I'.  Edwards  (1  Mo.  30) 186 

Paulding  V.  Lee  <20  Ala.  768) 534 

Pavy's  Co.  In  re  (1  Oh.  Div.  631) 684 

Paxton  V.  Cobb  (2  La.  137) 812 

Paxton  Cattle  Co.  v.  First  Nat.  Bank 

(21  Neb.  621) 74,  125 

Payne  v.  Newcomb  (100  111.  611) 745 

V.  Potter  (9  Iowa,  549) 353 

V.  Reese  (100  Penn.  St.  301) 6.iO 

V.  Smith  (12  N.  H.  34) 151 

V.  Waterston  (16  La.  Ann.  239). 935,  1023 

V.  Western,  &c.,  K.  Co.  (13  Lea,  507)  616 

Peahody  v.  Hoard  (46  111.  242) 93,  273 

Peacock  v.  ( 'ummings  (46  Penn.  St.  434)  63J 

V.  Peacock  (2  Camp.  45) 60 1 

Peak  V.  Ellicott  (30  Kan.  1.58) 538,  537 

Pearce  v.  Foot  (113  111.  228) 35 

V.  Foster  (17  Q.  B.  Div.  5.36) 215 

V.  Gamble  (72  Ala.  841) 878 

Pearson  v.  Darrington  (32  Ala.  227).  ...  &53 

V.  Mason  (120  Mass.  5i) 960 

V.  Moreland  (7  S.  &  M.  609) 463 

Pease  v.  Pease  (35  Conn.  131 ) 443 

V.  Walsh  (49  How.  Pr.  269) 24 

V.  Warren  (29  Mich.  9) 87 

Peavey  v.  Robbins  (8  Jones,  L.  339). ...  588 

Peck  V.  Chouteau  (91  Mo.  140) 839,  855 

V.  Ritchey  (66  Mo.  114) 100 

V.  Harriott  (6  S.  &  R.  146) 324 

Peckham  v  Lyon  (4  McLean,  45) 368 

Peebles  v.  Reading  (8  S.  &  R.  484).  .457,  459 

Peel  V.  Shepherd  (58  Ga.  365) 773 

Peele  v.  Northcote  (7  Taunt.  558) 620 

Pegram  v.  Charlotte,  &c.,    R.  R.  Co. 

(84  N.  C.  696) 463.  952 

Peine  v.  Weber  (47  111.  45) 138 

Peisch  V.  Dickson  (1  Mason,  10) 682, 

1029,  1032 

Pelly  V.  Rawlins  (Peak's  Ad.  Gas.  236). .  600 

V.  Wathen  (7  Hare,  351) 862 

Pemberton  Ex  parte  (IS  Ves.  Jr.  282). .  863 

Pendall  v.  Rench  (4  McLean,  259) 186 

Pendexter  v.  Vernon  (9  Humph.  84) 813 

Penhallow  v.  Doane  (3  Dall.  54) 561 

Penkivil  v.  Connell  (3  Exch.  381) 435 

Peninsular  Bank  v.  Banner  (14  Mich. 

208) 130 

Penn  r.  Evans  (28  La.  Ann.  576). 77,  121,  165 

V.  Whiteheads  (19  Gratt.  74 ) 62 

Pennell  w.  DefEell  (4  DeQ.  M.  &  G.  572), 

536,  781 

Pennington  v.  Streight  (54  Ind.  376) ....  592 

V.  Yell  (11  Ark.  212) 824,  826,  835 

Pennsylvania  Co.  v.  Lynch  (90  111.  334)  660 
Pennsylvania  Steam  NaT.  Co.  v.  Dan- 

dridge  (8  G.  &  J.  248) 129,  149 

Pennsylvania  R.  R.  Co.   v.   Books  (57 

Penn    St.  339) 715 

V.  Ogier  (35  Penn.  St.  477) 500 

V.  Wachter  (60  Md.  39.5)   656,  667 

Penny  wit  v.  Foote  (27  Ohio  St.  600) ....  810 
Penobscot   Boom    Co.    v.  Lamson  (16 

Me.  224) 809,  810 

Pentland  v.  Stewart  (4  D.  &  B.  386) ....  588 

Pentz  V.  Stanton  (10  Wend.  271) 438, 

448,  1047 

People  V.  Bank  (24  Wend.  431) 291 

V.  Blakely  (4  Park,  Cr.  176) 881 

V.  Bond    Street   Savings  Bank  (10 

Abb.  N.  Cas.  15)  849 

V.  Boring  (8  Cal.  407) 98,  321 

V.  Bush  (40  Cal.  344) 591 

V.  City  Bank  (96  N.  Y.  32) 536 

«.  Cole  (84  111  327) 832 

V.  G.isherie  (9  Johns.  71) 532 

».  Lamborn  (2  111.  123) 813 

V.  Mahon  (1  Utah,  205) 831 


8K0TI0N 

People  V.  Mariposa  Co.  (39  Cal.  6S3) ....     810 
V.  Mayor,    &c.,   of   New  York  (11 

Abb    Pr.  66) 813 

V.  Nichols  (.52  N.  Y.  478) 78 

V.  Parks  (49  Mich.  33.3) 746 

V.  Provines  (34  Cal.  520) 691 

V.  Feddy  (43  Barb.  539) 688 

V.  Roby(52  Mich.  579) 746 

V.  Supervisors  (10  Cal.  346) 588 

V.  Township  Board  (11  Mich.  222). .. 

455,  461,  462,    463 

V.  Van  Alstioe  (57  :\Iich.  69) 881 

V.  Vernon  (34  Cal  49) 715 

Peoria  Ins.  Co.  v.  Hall  (12  Mich.  202)..  718 
Percival  v.  Hughes  (9  Q.  B.  Div.  441). . .    748 

Peries  v.  Aycinena  (3  W.  &  S.  79) 248 

Perin  v.  Parker  (17  III.  App.  169) 936 

Perkins  v.  Benett  (2  Root,  30) 714 

V.  Boothby  (71  Me.  91) 391,     393 

V.  Evans  ("el  Iowa,  35) 792 

V.  Hadsell  (50  111.  217)  211 

V.  Missouri,  &c.,  R.  R.  Co.  (55  Mo. 

201) 751 

V.  Smith  (1  Wils.  328) 674 

V.  State  (50  Ala.  154) 14 

«.  Thompson  (3  N.  H.  144) 463 

V.  Washington  Ina.  Co.  (4  Cow.  645) 

475,  510,    954 

Perminter  v.  Kelly  (18  Ala  716)  71,    182 

Perrine  v.  Cooley  (12  Vroom,  322) 348 

Perry  v.  Barnett  (15  Q.  B.  Div.  383)  281,    485 

V.  Dicken  (105  Penn.  St.  83) 844 

V.  MeHenry  (13  111.  227) 459 

V.  HoU  (2  De  Gex,  F.  &  J.  48) 306 

t>.  Simpson  Waterproof  Mfg  Co.  (37 

Conn.  .520) 623 

Persons  r.  McKibben(6  Ind.261)....160,    629 

Peters  v.  Farnsworth  (15  Vt.  155) 822 

Peterson  v.  Mayor  (17  N.  Y.  449) 97,    118 

V.  Whitebreast  (50  Iowa,  673) 668 

Peto  w.  Hague  (5  Esp.  134)  87 

Pettee  t>.  Tennessee  Mfg  Co.  (1  Sneed, 

381) 649 

Pettillo,  Ex  parte  (80  N.  C.  50) 924 

Pew  V.  Gloucester  Bank  (1.30  Mass.  391)    646 

Pflster  V.  Wade  (69  Cal.  133) 813 

Phelan  v.  Gardner  (43  Cal.  306) 966,    967 

Phelon  V.  Stiles  (43  Conn.  426) 735,    736 

Phelps  V.  Borland  (30  Hun,  362). . . .441,    443 

V.  Brewer  (9  Cush.  390) 810 

V.  Hunt(40  Conn.  97) 849 

V.  Jackson  (31  Ark.  272) 536 

V.Paris  (39  Vt.  511) 647,    648 

t).  SUl(lDay,  31.5) 580,    685 

v.  Sullivan  (140  Mass.  36) 94,    394 

Philadelphia,  &c.,  R.  R.  Co.  v.  Cowell 

(28  Penn.  St.  329) 155 

V.  Derby  (14  How.  468) 735,    786 

V.  Keenan  (103  Penn.  St.  121) 659 

t>.  Larkin  (47  Md.  155) 751 

Phillips  V.  Broadley  (9  Q.  B.  744) 858 

V.  Dobbins  (56  Ga.  617) 813,    820 

V.  Germon  (43  Iowa,  101) 869 

«.  Howell  (60  Ga.  411) 208 

V.  Huth(6M  &  W.  572) 994 

V.  Jones  (1  Ad.  &  El.  333) 601 

V.  Moir  (69  111.  155) 281,  495,    799, 

989,  1006,  1015 

V.  Roberts  (90  HI.  492) 745 

V.  Scott  (43  Mo.  86)  1009,  1017 

V.  StBgg  (2  Ed w.  Ch.  108) 8r0 

Philo  V.  Butterfleld  (3  Neb.  256) 745 

Philpot  r.  Bingham  (55  Ala.  4.35). 51,  53,  54 
Phipps  V.  Millbury  Bank  (8  Mete.  79) . . .  511 
Phoenix  Ins.  Co  v.  Frissell  (8  North  E. 

Rep    318)  475 

PhcBnix  Mut.  L.  Ina.  Co.  v.  Halloway 

(.51  Conn.  311)  216 

Phosphate  of  Lime  Co.  v.  Qreen  (L.  R. 

7C.  P.  43)     139,    148 

Phyv.  Clark  (85  111.  377) 1017 


lxx\ 


TABI.E    OF    CASES    CITED. 


SECTION 

Physioc  r.  Shea  (75  Qa.  466) 215 

Piatt  V.  McCuUough  (1  McLean,  83) ... .  93 

Pickens  v.  Diecker  (21  Ohio  St.  212). . ..  734, 

735,  73B 

Pickering  V.  Busk  (15  East,  38) 281. 

33-<,  786,  787,  788,  894,  992,  994 

V.  Pickering  (6  N.  H.  124)   62 

Plckert  V.  Marston  (68  Wis.  465) 281, 

348,  947,  992 

Pickett  V.  Bates  (3  La.  Ann.  627) 817 

V.  Merchants'  Nat.  Bank  (32  Ark. 

346) 818 

9.  Pearson  (17  Vt.  470) 171,  484 

V.  Sutter  (5  Cal.  412) 49 

t>.  Wallace  (57  Cal.  555 580 

Picquet  v.  McKay  (2  Blackf .  465) 681 

Piedmont,  &c  ,  L.  Ins.  Co.  t>.  Young  (58 

Ala.  476) 931 

Pierce  v.  Benjamin  (14  Pick.  356) 463 

«.  Hall  (41  Barb.  142) 750 

V.  Johnson  (34  Conn.  274) 554 

V.  Lawrence  (16  Lea,  572).. 869,  872,  873 

V.  O'Keefedl  Wis.  180) 149 

V.  Robie  (39  Me.  205) 755 

V.  Strickland  (2  Story,  292). 811,  812,  816 

V.  Thomas  (4  E.  D.  Smith,  354) 964 

«.  United  States  (1  N.  &  H.  270)  ...  291 

w.  'Whitcomb  (48  Vt.  127) 658,  666 

Piercy  v.  Averill  (87  Hun,  360) 590 

V.  Hedrick  (3  W.  Va.  458) 102 

Pierson  v.  Graham  (33  Eng.   Com.  L. 

468) 574 

Pierse  v.  Thornton  (44  Ind.  235) 531 

Piggott  V.  Addicks  (3  G.  Greene.  427). ..  809 

V.  Thompson  (3  Bos.  &  P.  147) 755 

Pike  V.  Balch  (38  Me.  303) 893 

V.  Carter  (3  Bing.  78) 680,  587 

V.  Douglass  (28  Ark.  59) 150 

V.  Emerson  (5  N.  H.  393) 812,  813 

D.  Ongley  (18  Q.  B.  Div.  708) 9.57 

Pillsbury  v.  Du?an  (9  Ohio,  1 17)  809 

Pingree  v.  Leyland  (135  Mass.  398).  .659,  670 

Pinkham  v.  Crocker  (77  Me.  563)... .990,  1013 

Pinnix  v.  McAdoo  (68  N.  C.  56) 714 

Pinnock  v.  Clough  (16  Vt.  50fJ) 457,  459 

Piper  V.  Pearson  (2  Gray,  120) 580,  585 

Pipp  V.  Reynolds  (20  Mich.  88) 567 

Pitkins  V.  Harris  (13  West.  Rep.  719). . .  375 

Pitslnowsky  v.  Beardsley  (39  Iowa,  9)..  349 

Pitt  V.  Yalden  (4  Burr.  2060) 824 

Pittman  v.  Sofley  (64  111.  155) 727 

Pitts  ».  Mower  (18  Me.  361) .?69,  772 

t».  Shubert(llLa.  2SS) 155 

Pittebai^,  &c.,  R.  R.  Co.  v.  Devkmey 

(17  Ohio  St.  197) 667,  668 

«.  Gozzam  (32  Penn.  St.  34a>.  .  .1S7,  129 

t>.  Lewis  (33  Ohio  St.  196) 668 

o.  Rnby  (38Ind.  294) 6K2 

V.  Sentmeyer  (93  Penn.  St.  278) 6.58 

tJ.  Wooller  (12  Bush.  451) 163,  164 

Pixler  V.  Nichols  (8  Iowa,  106) 637 

Placer  County  v.  Astin  (8  Ol.  303) 536 

Planche  v.  Ciolburn  C8  Bing.  1^ 797 

Planters'  Bank  o.   Cameron  (3  S.  &  M. 

609) 224 

V.  Homberger  (4  (3old.  631) 843 

u.  Neely  (7  How.  89) 463 

V.  Prater  C64Ga.  609) 538 

«.  Sharp  C4S.  &  M.  75) 118.  167 

Planters',  &c.  Bank  v.  First  National 

Bank  (76  N.  C.  eai) 186,  998 

Planters'  Ins.  Co.  v.  Myers  (S5  Miss. 

479) 981 

V.  Sorrells  (37  Tenn.  352) 287,  931 

Piano  Mnfg.   Co.  v.  Bozton  <3»  Minn. 

203) 475,  521 

Poe  r.  Davis  (29  AJa.  688) 845 

Polo  t>.  Leask  (8  L.  T.  Rep.  645) 80 

Polhlll  V.  Walter  (3  B.  &  Ad.  114) 181 

Pollard  V.  Qrbbs  (55  Ga.  45) . .    136,  137,  141 

«.  Rowland  (2  Blackf .  23?) 615 


„   ,.  SECTION 

Pollard  V.  Vinton  (105  U.  S.  7) 717 

Pollock  V.  Cohen  (32  Ohio  St.  514) . .  117,  168 

V.  Qantt  (69  Ala.  373) 751,  839 

Polsley  V.  Anderson  (7  W.  Va.  202) 847, 

854,  856 

Pomeroy  v.  Smith  (17  Pick.  85) 765 

Pool  V.  Chicago,  &c.  Ry  Co.  (56  W.  227)  667 

V.  Adkisson  (1  Dana,  110) 681,  571 

V.  Gist  (4  McCord,  259) 831 

V.  Rice  (9  W.  Va.  73) 554,  957 

Poorman  v.  Woodward  (21  How.  266) .  375 

Pordage  v.  Cole  (1  Wm.  Saund.  319) ...  211 

Poree  v.  Bonneval  (6  La.  Ann.  3S6) 899 

Porter  v.  Blood  (5  Pick.  54), 683 

v.  Haight  (45  Cal.  631) 680 

V.  Haley  (55  Miss.  66) 63 

V.  Hannibal,  &c.  R.  R.  Co.  (71  Mo. 

66) 659,  670 

V.  Hanson  (36  Ark.  591) 869 

V.  Hills  (114  Mass.  106) 281 

V.  Lane  (8  Johns.  357) 871,  873 

«.  Parks  (49  N.  Y.  564) 786 

t>.  Raymond  (53  N.  H.  519) 756 

•  V.  Ruckman  (^8  N.  Y.  210) 852 

V.  Silvers  (35  Ind  295) 619 

V.  Woodruff  (36  N.  J.  Eq.  174) 466 

V.  Wormser  (94N.  Y.  431) 936, 

Posey  w.  Garth  (7  Mo.  96) 635 

Postin  V.  Rassette  (5  Cal.  469) «)4,  206 

Potter  V.  Dennison  (10  111.  590) K)44 

V.  Faulkner  (1  B.  &S.800) 669 

V.  Mayo  (3  Greenl.  34) 869,  871 

».  Thompson  (10  R.  I  1)  ...   683 

Potts  V.  Aechternacht  (93  Penn.  St.  138)  963 

V.  Rider  (3  Ohio,  7u) 765 

Pottsville  Iron  &  Steel  Co.  v.  Good  (9 

Atl.  Rep.497) 641 

Potvin  V.  Curran  (13  Neb.  302) 967 

Pope  V.  Armstrong  (5  S.  &  M.  214). 869,  870 

V.  Beals  (108  Mass.  561) 966 

V.  Machias,  &c.  Co.  (53  Me.  535) 800 

t>.  Meadow,  &c.  C!o.  (20  Fed.  Rep. 

„        ,   35) 699 

Powel  V.  Little  O  W.  Black,  8) 817 

Powell  w.  Conant  (83  Mich.  396) 461 

u  Edmunds  (12  East.  7) 895 

V.  Gossom  (18  B.  Mon.  179) 149 

V.  Henry  (27  Ala.  612) 375 

V.  Newburgh  (19  Johns.  284)... 658,  1031 

V.  State  (37  Ala.  51) 60 

Powell's  Admr.  v.  Henry  (27  Ala.  613) 

157,  855 

Power  V.  First  Nat.  Bank  (6  Mont.  251).  614 

Powers  V.  Briggs  (79  111.  493) , 435.  436 

438,  442 

«.  Cray(7Ga.  206) 684 

».  Skinner  (34  Vt.  274) SZ,  40 

Pownall  V.  Bair  (78  Penn.  St.  403) 197 

Pratt  V.  Beaupre  (13  Minn.  187) 442,  449 

V.  Bunker  (45  Me.  569) 748 

V.  Collins  (20  Hun,  126) 773 

V.  Gardner  (2  Cush.  63) . . .  .580,  681.  583 

V.  Hotchki.fs  (10  111.  App.  603) 966 

V.  Topeka  Bank  (12  Kans.  570) 755 

Prentiss  v.  Ledyard  (28  Wis.  131) 639 

Preston  v.  American   linen   (3o.  (119 

Mass.  400) 635 

t>.  HUl  (50  Cal.  4^ 813 

V.  Hull  (23  Gratt.  600) 94,  394 

r.  Neale  (12  Grav,  322) 674 

V.  Preston  (1  Doug.  293) 838,  837 

B.  Tiibbin  (1  Vern.  287) 721 

Prices.  Gover  (40  Md.  112) 938 

t).  Keyes  (62  N.  Y.  378) 469 

t>.  Ralston  (3  Dall.  60) 1044 

t>.  Reeves  (88  Cal.  457)  536 

V.  Seydel  (46  Iowa,  69ff) 63,  87 

V.  Wisconsin  Ins.  Co.  ("43  Wis.  267).  995 

Priestley  v.  Pemle  (3  H.  &  C.  977) .  .554,  699 

V.  Fowler  (3  M.  &  W.   1)..6.56,  659.  667 

Primm  V.  Stewart  (7  Tex.  178) 240,  244 


TABLE    OF    CASES    CITED. 


Ixxvii 


SECTION 

Prltchard  v.  La  Crosse,  &c.  R.  B.  Co. 

(7  Wis.  232) 741 

Pritchett  V.  Sessions  (10  Rich.,  S.  C.  L. 

293) 721 

Proctor  V.  Williams(8  C.  B.  N.  S.  381)) . .  188 

Proprietors  v.  Bishop  (2  Vt.  231) 809 

Protection  Life  Ins.  Co.  v.  Foote  (79 

111.361) 44 

Proudfoot  V.  Monteflore  (L.  R.  3  Q.  B. 

511) 722 

V.  Wightman  (78  111.  553) . .  319 

Provincial  Ins.  Co.  v.  Leduc  (L.  R.  6  P. 

C.  224) 931,  983 

Provost  V.  Harwood  (29  Vt.  219) 632 

Puett  V.  Beard  (86  Ind.  172) 873 

Pugh  V.  Chesseldine  (11  Ohio,  109) 893 

V.  Pugh  (9  Ind.  132) 536 

Pugsley  V.  Murray  (4  E.  D.  Smith,  245).  67 

PuUamu.  State  (78  Ala.  31) 61,  62 

Pullman  Palace  Car  Co.  v.  Reed  (75 

lU.  125) 751 

Pulsifer  v.  Shepard  (36  III.  513 954 

Pulver  V.  Harris  (62  Barb.  500) 846,  871 

Purcell  V.  McComber  (11  Neb.  203)  631,  637 

Purdy  V.  Huntington  (42  N.  Y.  339)  ...  373 

Purinton  v.  Insurance  Co.  (72  Me.  22) . .  435 

Pursley  v.  Morrison  (7  Ind.  356) 84.  288 

Putnam  v.  French  (53  Vt.  402)  841,  342,  362 

V.  Sullivan  (4  Mass.  45) 394 

V.  Sweet  (2  Pin.  802) ,  804 

V.  Tennyson  (50  Ind.  456) 869 

Pydnor  w.  Heard  (8  Tex.  98) 558 

Pyle  ».  Craven  (4  Litt.  17) 51 


Q. 

Quarles  v.  Porter  (12  Mo.  76) 813 

Quarman  v.  Burnett  (6  M.  &.  W.  490) 

575,  735,  736,  775 
Quecena  v.  Crawford  (2  B.  &  P.,  N.  R. 

269) 1005 

Queen  v.  Bishop  (5  Q.  B.  Di v.  259) 746 

V.  Holbrook  (3  Q.  B.  Div.  60) 746 

V.  Prince  (L.  R.  3  Cr.  Cas.  154) 746 

Quigley  V.  De  Haas  (83  Penn.  St.  267) 

421,  558 
V.  Mexico  Southern  Bank  (80  Mo. 

289^  oQo 

Quimby  v.  Hazen  (54  Vt.'  132) ...... .673,  674 

Quincey  v.  Francis  (5  Abb.  N.  C.  286) . .  846 

Quincy  Mining  Co.  v.  Kitts(42  Mich.  34)  657 

Quinn  r.  Davis  (78  Penn.  St.  15) 785 

V.  Dresbach  (16  Pac.  Rep.  762) 86 

V.  Power  (87  N.  Y.  535) 734.  735,  736 

Quint  V.  Ophir  Mining  Co.  (4  Nev.  305) .  847 

Quitman  v.  Packard  (22  La.  Ann.  70)..  1032 


Rabone  v.  Williams  (7  T.  R.  856,  note).  778 
Bagsdale   v.    Memphis,  &c.  R.  R.   (3 

(Baxt.  426) 667 

Rail  V.  Potts  (8  Humph.  235) 588 

Railey  v.  Bagley  (19  La.  Ann.  172) 819 

V.  Porter  c33  Mo.  471) 1012 

Railroad  Co.  v.  Fort  (17  Wall,  553)  663,  668 

Railway  Co.  v.  Ranney  (37  Ohio  St.  665)  667 

Railroad  Com.  v.  Ryan  (11  Kans.  602)..  29 

Railroad  Co.  v.  Slack  (45  Md.  161) 622 

Railway  C)o.  v.   Spangle  (44  Ohio  St. 

471) 671 

Raines  v.  Simpson  (50  Tex.  49.5)  580,  681,  592 
Baisin  v.  Clark  (41  Md.  158)  66,  67.  281, 

643,  952,  953,  972 

Baitt  V.  Mitchell  (4  Camp.  146) 680 

Ralieghw.  Atkinson  (6  M.  &  W.  670)  205,  206 

Ralston  v.  Barclay  (6  La.  6,53) 510 

Ramey  v.  Holcombe  (21  Ala.  667) 622 

Ramsey  v.  Gardner  (11  Johns,  439)  653,  1031 


SECTION 

Ramsey  v.  Rilev  (13  Ohio,  157) 580 

Rand  v.  Hale  (3  W.  Va.  495) 438 

itandall  V.  Brighrt m  (7  Wall,  535) 580 

V.  Kehlor  (60  Me.  37) 281,  348,  993 

V.  Lantenberger  (13  AtL  Rep.  100). .  903 
V.  Northwestern  Tel.  Co.  (54  Wis. 

140) 714,  715 

V.  Smith  (63  Me.  105) 281,  486 

V.  Trimen  (16  C.  B.  786) 545 

V.  VanVetchen  (19  Johns,  60)  141, 

441,  702 

Randel  v.  Brown  (2  How.  406) 677 

V.  Chesapeake  &  Del.  Canal  Co.  (1 

Hark.  234) 714 

V.  Yates  (48  Miss.  688) 883 

Randolph  v.  Quidnick  Co.  (23  Fed.  Rep. 

278) .  883 

V.  Randolph  (34  Tex.  181) 864 

V.  Ware  (3  Cranch,  503) 1011 

Rankin  v.  Matthews  (7  Ired.  L.  238) 897 

V.  SchEefler  (4  Mo.  App.  108) 839 

V.  West  (35  Mich.  195) 63 

Rape  «.  Heaton  (9  Wis.  328) 810 

Rapsou  V.  Cubitt  (9  M.  &  W.  709)  735, 

738,  775 
Rasquin  v.  Knickerbocker  Stage  Co. 

(12  Abb.  Pr.  334) 871 

Rauck  V.  Albright  (36  Penn.  St.  371) ...  608 

Rawllngs  v.  Kobson  (70  Ga.  595) 433 

Rawson  v.  Curtiss  (19  111.  474) 86,  100 

Ray  V.  Jefifersonville  (90  Ind.  578 592 

V.  Haines  (52  111  485) 651 

V.  Powers  (134  Mass.  22) 72,  78 

Rayan  v.  Chenault  (75  Ky.  545) 186 

Raymond  v.  Bolles  (11  Cush.  315) 580 

V.  Crown,  &c.   Mills  (2  Mete.   319) 

554,  558,  699,  957,  1047,  1049 

V.  Leavitt  (46  Mich.  447) 35 

V.  Squire  (11  Johns.  47) 1053 

Rayner  v.  Grote  (15  M .  &  W.  359) ......  760 

Raynes  tJ.  Bennett  (114  Mass  424) 63 

Raynsf ord  v.  Phelps  (43  Mich.  342) ....  590 

Reab  v.  Moor  (19  Johns.  337) 634 

Read  v.  Bostick  (6  Humph.  321) 863 

V.  Dupper  (6  T.  R.  361) 868,  873 

V.  Dutismore  (9  C.  &  P.  588) 215 

V.  Patterson  (11  Lea,  430) 835 

Reason  v.  Wirdnam  (1  Car.  &  P.  434)..  600 

Rechtsherd  v.  Bank  (47  Mo.  181) 474 

Redding  v.  South  Carolina  R.  R.  Co.  (3 

S.  C.  1) 740,  741 

Redfleld  v.  Tegg  (38  N.  Y.  212) 971 

Redlich  V.  Doll  i54  N.  Y.  2.34) 282 

Redmond  v.  Coffin  (2  Dev.  Eq.  437) 425 

V.  State  (36  Ark.  58) 746 

Reece  v.  Rif?hy  (4  B.  &  Aid.  202) 828 

Reed  V.  Ashburnham  R.  R.  (120  Mass. 

43) 287 

V.  Baggott  (5  111.  App.  257) 359 

V.  Dougan  (54  Ind.  307) 526 

V.  Norris  (2  Myl.  &  C.  361) 467,  468 

V.  Northrup  (50  Mich.  443) 511 

r.  Petterson  (91  111.  288)... 571 

V.  Reed  (19  S.  C.  548) 818 

V.  Van  Ostrand  (1  Wend.  424) 93 

Reed's  Ex'rs  v.  Reed  (82  Penn.  St.  420)  967 

Rees  V.  Snruance  (45  111.  308) 966 

Reese  v.  Biddle  (112  Penn.  St.  72) 668 

t».  Medlock  (27  Tex.   120)   103,   104, 

129,  132,  155.  273,  308,  826 

Reeves  v.  Capper  (5  Bing.  N.  C.  136) . .  678 

V.  Kelley  (30  Mich.  133) 66 

V.  State  Bank  (8  Ohio  St.  465) 614 

Hes&n  V.  Chenault  (78  Ky.  545) 137 

Reginau  Abraham  (2  Car.  &  K.  5f0)..  715 
Reichwald  v.   Commercial  Hotel    C"o. 

(106  111.  439) 121 

Reld  V.  Bank  (70  Ala.  190) 723 

V.  Hibbard  (6  Wis.  175) 148 

ti.  Hood  (2  N.  &  McCord,  168) 580 

t;.  Humber  (,49  Ga.  207) 689 


Ixxviii 


TABLE    OF    CASES    CITED. 


SECTION 

Eellly  V,  Cavanaush  (29  Ind.  435) 824 

RendeU  v.  Harnman  (75  Me.  497)  438, 

441,  442 

Eenick  v.  Ludington  (16  W.  Va.  379). . .  869 

Renwick  v.  Bancroft  (56  Iowa,  527) 193 

Rex  V.  Birdbn.oke  (4  T.  R.  245) 634 

V.  JJixon  (4  (^amp.  12) 746 

V.  Dixon  (3  Burr,  1687) 882 

«.  Gutch  (1  Moo  &JI.  437) 746 

V.  Taylor  (13  Price,  636) 12 

V.  Walter  (3  Esp.  21) 746 

Reyman  v.  Mo.sher  (71  Ind.  596) 612 

Reynolds  v  Collins  (78  Ala.  94> 86 

V.  Continental    Ins.    Co.  (36   Mich. 

131) 100,  387 

V.  Davison  (34  Md.  662) 149 

V.  De'chaums(24  Tex.  174) 49 

V.  Ferr^-e  (86  111.  570) 129,  3r5 

V.  Fleming  (.30  Kan.  106) 810 

V.  Howell  (L.  R.  8  Q  B.  898) 810 

t>.  Insersoll  (11  S.  &  M.  249),  718,  813,  820 

V.  McMillan  (63  HI  46) 841 

V.  Rowley  (3  Rob.  201) 714 

V.  Stansbury  (20  Ohio,  .344) 58o 

V.  Tompkins  (23  W.  Va  229) 969 

v.Witte  (13S.  Car.  5) 739,  743 

Rhea  v  Puryear  (26  Ark.  344) 457,  4i9 

Rhine  v  Blake  (59  Tex.  240) 326,  875 

Rhines  v.  Evans  (66  Pean.  St.  192) 515, 

531.  53.3,  82*) 

Rhoda  V.  Annis  (?5  Mp.  17) ... .  287,  743,  744 

Rhode  V.  Louthain  (8  Blackf.  413) 93 

Rhodes  V.  Forwood  (L.  R.  1  App.  Cas. 

256)  211 

«.  Neal  (64  Ga.  704) 27 

V.  Summerhills  (4  Heisk.  204) 3S 

Ricard  v.  Sanderson  (41  N.  Y.  179) 567 

Rice  V.  Austin  (17  Mass.  197) 676,  1035 

V.  Barnard  (127  Mass.  241) 221 

«.  Brook  (20  Fed.  Rep.  611) 1003 

V.  Cutler  (17  Wis.  3.-)l 994 

V.  Gov-'(22  Pick.  158) 445 

V.  Qroff mann  (56  Mo.  434) 83. 

84,  338,  993 

V.  Isham  (4  Abb.  App.  N.  Y.  37)  ...  224 
V.  Lyniborough  Giass  Co.  (50  N.  H. 

I9.i) 3,54 

V.  Mayo  (107  Ma=s.  550) 966 

V.  McLarren  (42  Me.  157) 142 

V.  Peninsular  Club  (.52  Mich.  87). 72,  276 

W.Rice  (14  B.  Mon.  417)   885 

v. 'I'avernier  (8  Minn  248) 318 

«.  Troup  (62  Miss.  186) 819 

w.  Wilkins  (21  Me.  .558) 816 

V.  Wood  (1.33  JIass.  133) '-'0, 

66,  67,  643,  9.53,  972 

Rich  V.  State  Natl.  Bank  (7  Neb.  201). .  148 
V.  St-\te    National    Bank    (18  Kan. 

201) 117 

Richards  v.  Jackson  (31  Md.  250) 612 

V.  Rough  (53  Mich  242) 659,  670 

Richardson  v.  Daly  (4  M.  &  W.  384)  ...  812 
V.  Easrlo    Machine  Worlis  (78  Ind. 

482) 621,  622 

V.  KimbalU23  Me.  463) 182 

V.  IMann  (30  La.  Ann.  1060) 936 

V.  St.  Louis  Nat.  Bank  (10  Mo.  App. 

246) 1044 

V.  Williamson  (L.  R.  6  Q.  B.  276), 

545  553 

t).  Woehler  (26  Mich.  90) .'  611 

Richie  V.  Bass  (15  La.  Ann.  668) 5.50 

Richmond.  &c..  R.  R.  Co.  v.  Snead  (19 

Gratt.  :i54) 441.  443 

Richmond  Turnpike  Co.  v.  Vanderbilt 

(1  Hill,  480) 7.37 

Ricks  V.  Yates  (5  Ind.  115) 6-22,  629,  637 

Rldder  v.  Whitlock  (12  How.  Pr.  208) .. .  523 

Riddle  ■-.  Hoffman  (3  Penn.  224) 515 

>'.  Poorman  (3  Penn.  224) 515 

giddiest).  Aikin(29  Mo.  453) 885 


BKCTION 

Ri'ler  v.  Ocean  Ins.  Co.  (20  Pick.  259). .  756 

Ridcre  V.  Alter  (14  La.  Ann.  866) 810 

Ridgeway  v.   Hungerford  Market  Co. 

(3  Ad.  &  El.   171) 215,  839 

Ridgley  v.  Dobson  (3  W.  &  S.  118) 72 

Riehl  V.  Evansville  Foundry  Ass'n  (101 

Ind.  70) 536,  780,  781 

Riggan  v.  Grain  (5  S.  W.  Rep.  561) 142 

f.  Green  (80  N.  Car.  2.36)  48 

Riggs  V.  Pursell  (74  N.  Y.  370) 924 

Rigs  V.  Cag-  (2  Hump.  850) 245,  246 

Right  u.  Cuttrel  (5  East.  419) 167 

Riley  V.  Minor  (29  Mo.  4.39) 89 

V.  Steamship  Co.  (29  La.  Ann.  791).  749 

V.  Wheeler  (44  Vt.  189). 948 

Rimmey  v.  Getterman  i63  Md.  424) 84 

Ringo  V.  Binns  (10  Pet.  269) . . .  .457,  46S,  469 

Rion  V.  Gilly  i6  Mart.  417) 1023 

Ripley  v.  Bull  (19  Conn.  56) 8*5 

V.  Chipman  (13  Vt.  268) 635 

V.  Gelstoii  (9. Johns.  201) 564 

Ritoh  V.  Smith  (82  N.  Y.  627) 378 

Ritchey  v.  West  (23  111.  385) 829 

Roach  V.  Coe  (1  E.  D.  Smith,  175) 129 

V.  Karr  (18  Kans.  529) 718 

V.  Turk  (9  Heisk.  708) 91.5,  961,  1050 

Robb  V.  Baiik  (41  Barb.  5S6) 4.39 

Bobbins  V.  Mount  (4  Robt.  .553) 51 

V.  Robbins   3  Atl.  Hep.  264) 528 

V.  Sears  (23  Fed.  Rep.  874) 953.  972 

Robert  v.   Commercial  Bank   (13  La. 

.528) 813 

Robert  Mary 's  Case  (9  CJoke,  113) 793 

Roberts  v.  Adams  (8  Port.  297) 394 

V.  Armstrong  (1  Bush.  263). 531,  5.33,  833 

V.  Burks  (Litt.  S.  C.  411) 714,  715 

V.  Kiramons  (3  South.  Rep.  736). . . .  967 

V.  Nels-'n  (22  Mo.  App.  28) 813 

u.  Ogilby  (9  Price,  2fi9) 525 

V.  Pepple  (85  Mich.  367) 106 

Robertson  v.  Cloud  (47  Miss.  208) 226 

V.  Levy  (19  La.  Ann.  327) 307 

V.  Livingston  (5  Cow.  473) 990,  1030 

u  R'.binson  (65  Ala.  610) :^0 

V.  Shutt  (9  Bush.  659)  869 

V.  Sichel  (127  U.  S.  507) 594 

V.  Terre  Haute,  &c.,  R.  R,   (78  Ind. 

77)  667 

V.  Western  F.  &  M.  Ins.  Co.  (19  La. 

227) 461,  463 

Robinett's  Appeal  (12  Casev,  191)  469 

Robins  v.  Bridge  (3  M.  &  W.  114)  838 

Robinson  v.  Anderson  (106  Ind.  152). ... 

375,  790 

V.  Baker  (5  Cush.  1.37) 677,  1036 

V.  Chamberlain  (34  N.  Y.  880) 590 

V.  Chemical  Nat.   Bank  (86  N.   Y. 

404)   287,  882 

V.  Fitchburg,  &c.,  R.  R.Co.  (7  Gray, 

92) 714,  715 

V.  Garth  (6  Ala.  204^ 924 

V.  Grpen  (5  Harr.  115) 88 

V.  Green  (3  Mete.   1.59)   919 

V.  Life  Ass.  Co.  (42  N.  Y.  54) 269 

V.  .Tarvis  (25  Mo.  App.  421) 67 

V.  Kanawha  Valley  Bank  (44  Ohio 

St.  441) 43-<,  441 

V.  Larrabee  (6:?  Me.  116)  676,  678 

V.  MoUett  (L.  R.  7  H.  of  L.  802)  105,  281, 

4(i5,  485,  910,  9.52 

V.  Jlurphy  (69  Ala.  54;i) 819 

V.  Rowland  (26  Hun,  .501) .  583 

t).  Rutter  (4  Kl   &  B.  954) 919 

w.  Sanders  (21  Miss.  .391).   637 

V.  Walton  (58  Mo.  380) 714 

V.  Webb  (11  Bush.  464) 765.  9-22.  1041 

r.  Weeks  (.56  Me.  102)  51,59,  651 

V.  Yarrow  (7  Taunt.  455) 393 

Robinson's  Case  (131  Mass.  376).... 803,  804 
Robinson  Machine  Works  v.  Vorse  (52 

Iowa,207) 485 


TABLE    OF    OASES    CITED. 


Ixxix 


8B0TION 

Bobson  V.  Kemp  (4  Esp.  235) 882 

V.  Sanders  (25  S.  C.  116) 5-32 

V.  Watts  (11  Tex.  764) 375 

Roby  V.  Cossett  (78  111.  638) 127,    149 

Rochester  V  Levering  (104  Tnd.  662)...    466 
Rocliester   City  Bank   v.    Suydam    (5 

How.  Pr.  254)  882,  8a3,    887 

Rockford,  &c.  R.  R.  Co.  v.  Sage  i65  111. 

828) 74,     125 

V.  Wilcox  (66  111.  417) 86,      97 

Rockwell  V   Newton  (44  Conn.  333)  967,    971 

Rockwood  V.  Brown  (1  Gray,  261) 772 

Rodgers  V.  Bass  (46  Tex.  505)     875 

< .  BlackWHll  (49  Mich.  192) 48 

V.  Pike  County  Bank  (69  Mo.  562) . .      63 

Rodick  V.  c;oburn  (68  Me.  170)  354,    875 

Rodriguez  v.  Hefferman  (6  Johns.  Ch. 

417) 994 

Roe  V.  Pierce  (2  Camp.  96) 167 

Roesner  v.  Hermann  (10  Bisa.  486) 671 

Rogers  V.  Buckingham  (33  Conn.  81)...    745 

r.  Crutrer  (7  Johns.  557)     77 

V.  Greenwood  (14  Minn.  833) 812 

«.  Huie  (1  Cal   429) 915 

V.  Kneeland  (10  Wend.  219) 1031 

V.  March  (33  Me.  106). .  .446,  448,  556,  1051 

V.  McKenzie  (81  N.  6.  164) 817,    818 

V.  Rogers  (1  Hopk.  524) 457,    463 

V.  Weir  (34  N.  Y.  463) 681 

V.  WoodDiff  (23  Ohio  St.  632)  281 

Rohrbach  v.  Germanla  F.  Ins.  Co.  (62 

N.  Y.47)  931 

Rolf  e  V.  Delman  (7  Robt.  180) 88 

V.  Gregory  (4  DeQ.  J.  &  S.  576) 536 

Rollard  v.  Hart  (L.  R  6  Ch.  App.  678).    721 

Roller  V.  Woold  ridge  (46  Tex.  485) 813 

Rolling  Stock  Co.  v.  Railroad  Co.  (34 

Ohio  St.  396) 67,  644,  953,    972 

Romaine  v.  VanAllen  (26  N.  Y.  309) ....  1009 

Romberg  v.  Hughes  (18  Neb.  579) 888 

Ronald  v.  Mutual  Reserve  Asa^n  (80 

Fed.  Rep.  228)     856 

Roof  V.  Stafford  (7  Cow.  179) 51 

Rooney  v.  Second  Ave.  R.  R.  Co.  (18  N. 

Y.  868) 869,    871 

Roosevelt  v.  Doherty  (129  Mass.  3iil) 

1042,  1048 

Root  V.  French  (13  Wend.  670) 787 

V,  Wright  (21  Hun,  348)  882 

Rootes  V.  Stone  (2  Leigh,  650) 835 

Rosa  V.  Brotherson  (10  Wend.  86) 619 

Rose  V.  Harden  (35  Kan.  106) 457,    4.59 

V.  Laffan  (2  Speers,  424) 755 

V.  Truax  (21  Barb.  361) 40,    645 

Rosenburg  v.  Rosen  burg  (40  Hun,  100)    882 

Rosenbury  v.  Angell  (6  Mich.  608) 86 

Rosquin  v.  Stage  Co.  (12  Abb.  Pr.  324).    871 

Ross  V.  Brown  (74  Me.  352) 440 

V.  Madison  (1  Ind.  m) 97,      98 

V.  Houston  (25  Miss  691) 718 

Rossiter  v.  Cooper  (23  Vt.  622) 632 

V.  Peck  (8  Gray,539) 585 

V.  Rossiter  (8  Wend.  494)  279,  287,  806, 
890,  891.  898,  650,    658 
V.  Trafalgar  Life  Ass'n  (27  Beav. 

377) 194 

Rothwell  V.  Dewees  (2  Black,  618)  457,    459 

Rotman  v.  Wasson  (5  Kan.  652) 89 

Rounds  V.  Delaware,  &c.  R.  R.  Co.  (64 

N.  Y.  120)  740,    742 

V.  Mansfield  (38  Me   586) 590 

Roundtree  v.  Smith  (108  U.  S.  269) 39 

V.  Denson  (59  Wis.  622) 806 

Bourke  v.  Story  (4  E.  D.  Smith,  64). . . .    728 
Eowe  V.  Rand  (111  Ind.  206)  221,  247,  251,  261, 

765,    757 

f>.  Osborne  (1  Stark,  140) 932 

V.  Stevens  (53  N.  Y.  621) 67,  953,    972 

V.  Ware  (30  Ga.  278) 93,    141 

Rowell  V.  Klein  (44  Ind.  290)  56,  68,  100,     714 
V.  Martindale  (1  Bailey,  Ch.  226) . .    634 

vi 


SECTION 

Rowell  V.  Slate  (58  Penn.  St.  198) 819 

Rowning  v.  Goodchild  (2  W.  Bi.  906). . .  590 

Royce  V.  Allen  (28  Vt.  234) 554,  957 

V.  Johnson  (7  Gray.  162) 39 

Royster  v.  Mageveney  (9  La.  148) 966 

Ruckman  v.  Bcrgholz  (.38  N.  J.  L.  531) 

68,  461,  605,  791 

Rudasill  v.  Falls  (92  N.  C.  222) 130 

Rudd  V.  Matthews  (79  Ky.  479) 116 

Ruffnerv.  Hewett  (7  W.  Va.  58.^)..  130, 

163,  652,  977 

Ruffln  V.  Mebane  (6  Ired.  Eq.  507) 364 

Ruggles  V.  Collier  (43  Mo.  353) 190 

u.  Washington  Co.  (3  Mo.  496) 148 

Ruiz  V.  Norton  (4  Cal.  355) 769,  773 

Rundel  v.  Foster  (3  Tenn.  Ch.  658) 882 

Rundle  v.  Moore  (8  Johns.  Oas.  36) ... .  1008 

Hunyan  v.  Nichols  (11  Johns.  547).  647,  648 

Rupp  V.  Sampson  (16  Gray,  398)  ...  9.53,  973 

Ruppe  V.Edwards  (52  Mich. 411)  386, 396,  400 

Rusby  V.  Scarlett  (5  Esp.  76) 274 

Rush  V.  Cavenaugh  (2  Penn  St.  187). ..  851 

Rushforth  v.  Hadfleld  (7  East.  229).673,  685 

Rusk  V.  Fenton  (14  Bush,  490) 48 

Russel  V.  Palmer  (2  Wils.  825) 906 

Russell  V.  Annable  (109  Mass.  74) 188 

V.  Conway  (11  Cal.  103) .   869,  870 

V.  Drummond  (6  Ind.  216) 813 

V.  Folsom  (72  Me.  436) 439 

V.  Little  (28  Ala.  160) 634 

V.  Miner  (25  Hun,  114)        .  892,  907,  917 

V.  Sweezy  (22  Mich.  2:B5) 718 

Rust  V.  Eaton  (24  Fed.  Rep.  830). .  .273, 

276,  289 

V.  Larue  (4  Lltt.  419) 845 

Rutenberg  v.  Main  (47  Cal.  213) 89,  966 

Rutherford  v.  Mitchell  (M.  &  Y.  261). . .  754 
Rutland,  <S:c.  R.  R.  Co.  v.  Cole  (24  Vt. 

39)  755 

Ryan  v.  Bagaley  (50  Mich.  179).664,  665,  668 

V.  Curran  (64  Ind.  845) 747 

V.  Dayton  (25  Conn.  1 88) 631,  640 

V.  Fowler  (24  N.  Y.  410) 659 

V.  Gilmer  (2  Mont.  517) 714,  ri5 

V.  McG^e  (2  Mack.  17) 966 

w.  Tudor  (31  Kans.  366)     388 

Ryberg  v.  SneU  (2  Wash.  403) 1036 


8. 

Sadler  v.  Evans  (4  Burr.  1984) 77» 

V.  Leigh  (4  C-imp  195) 756,  769,  772 

V.  Robinson  (2  Stew.  520) 61 

Sage  V.  Laurain  (19  Mich.  137) 588 

Saginaw.  &c.  R.  R.  Co.  v.  Chappell  (66 

Mich.  190) 288 

Sailly  V.  Cleveland  (10  Wend.  156) 756 

Saladin  v.  Mitchell  (45  111.  79) .  .945,  949.  950 
Salem  Bank   v.  Gloucester  Bank  (17 

Mass.  28) 118 

Salisbury  v.  Brisbane  (61  N.  Y.  61 7). 77,  261 
Salmon  Falls  Mnfg  Co.  v.  Goddard  (14 

How.  446) 769 

Salter  v.  Howard  (43  Ga.  601) 793 

Saltmarsh  v.  Smith  (32  Ala.  404) ... .240,  244 
Saitus  V.  Everett  (20  Wend.  366).  ..785, 

787,  1050 

Sample  v.  Frost  (10  Iowa,  -66) 884 

Sampson  r.  Shaw  (101  Mass  145) 35 

w.  Sinser  Mnfg  Co.  (5  S.  C.  465) 846 

Samuelson  v.   Cleveland  Iron   Mining 

Co.  (49  Mich.  164)   666 

San  Diego  v.  San  Diego,  &c.  R.  R.  Co. 

(44  Cal.  106) 463 

San  Jose  Gas  Co.  v.  January  (57  Cal. 

614) 588 

Sanborn  V.  Chamberlin  (10  Mass.  409) .  893 

V.  Neal  (4  Minn.  126) 547 

Sandford  v.  Hamly  (23  Wend.  260). 348,  714 

V.  Nyman  (28  Mich.  326) 718 


Ixxx 


TABLE   OF    OASES    CITED. 


SECTION 

Sandfoss  v.  Jones  (35  Cal.  48n 457,  459 

Sands  v.  Life  Ins.  Co.  (50  N.  Y.  626) ....  5i69 
Sanford  v.   Norris  (4  Abb.   App.  Deo. 

144) 457,  459 

V.  Pollock  (105  N.  Y.  450) 63 

V.  Rawlings  (43  111.  93) 963 

Sanfrer  V.  Dun  (47  Wis.  615) 516 

V.  Fincher  (27  111.  347)   648 

Sangstoii  V.  Maitland  (11  Gill.  &  J.  Md. 

286) 1003 

Sank  V.  Life  Ins.  Co.  (.50  N.  Y.  626) 269 

Sargant  v.  Clark  (108  Penn.  St.  588) ....  812 

Sargent  v.  Morris  (3  Barn  &  Aid.  281)..  931 

V.  Webster  (13  Mete.  497) 421 

V.  Blunt  (16  Johns.  74) 476 

Satchweil  v.  Williams  (40  Conn.  371) 

648,  649 

Satterfleld  v.  Malone  (35  Fed.  Rep.  445)  721 

«.  Smith  (11  Ired.  60) 8!>5 

Satterly  v.  Morgan  (35  La.  Ann.  1168)..  667 

Saulsbury  v.  Wimberly  (60  Ga.  78) 718 

Saulspaw  v.  Gilchrist  ( i  Teiin.  Ch.  8). . .  917 

Saunders  v.  Bartlett  (12  Heisk.  316).. ..  1035 

V.  Hatteman  (2  Ired.  32) 743 

Saxmderson  v.  Jackson  (2  Bos.  &  Pul. 

238) 211 

Savacool  v.  Boughton  (5  Wend.  172) ...  586 

Savage  v.  Rix  (9  N.  H.  26.3) 438,  550 

V.  Savage  (12  Oregon,  459) 470 

Saveland  v.  Green  (3b  Wis.  612) 653 

V.  Green  (40  Wis.  431) . .  155,  157,  161,  194 

Savery  v.  Savery  (8  Iowa,  217) 810 

V.  Sypher  (6  Wall.  157) 820 

Savings  Bank  v.  Railroad  Co.  (20  Kans. 

519) 717 

V.  Ward  (100  U.  S.  195) 829,  836 

Savings  Fund  Society  v.  Savings  Bank 

(36  Penn.  St.  498) 6, 

9.  84,  104,  105,  106,  287,  288,  294 

Savings  Inst,  v  Chinn  (7  Bush-  5.39)  ....  813 

Savory  v.  Chapman  (11  Ad.  &  El.  829).  820 

Sawyer  v.  Corse  (17  Gratt.  230) 590, 

593,  594,  595 

V.  Cutting  (23  Vt.  486) 61 

V.  Gerrish(70  Me.  254) 674 

t).  Hebard  (58  Vt.  37.5) 599 

V.  Lappan  (14  N.  H.  352) 533 

V.  Lorillard  (48  Ala.  332). . .  .676, 678,  1032 

t).  Mayhew  (51  Me.  398) 475 

V.  Pawner's  Bank  (6  Allen,  207) ....  730 

t>.  Tappan  (14  N.  H.  352) 5^3 

Pax  «.Drake  (69  Iowa,  760) 86 

Saxnnia,  &c.,  Co.  v.  Cook  (7  Colo.  569).  621 

Sayre  v.  Nichols  (7  Cal.  535). . .  .186,  193,  437 

Scaggs  V.  State  (8  S.  &  M.  722) 715 

Scanlan  v.  Keith  (102  111.  634) 436,  442 

Scarborough  v.  Reynolds  (12  Ala.  252), 

405,  950 

Scarfe  V.  Morgan  (4  M.  &  W.  283) 673, 

674,  681 

Schaefer  v.  Henkel  (75  N.  Y.  378). .  .755,  757 

Schaefferr.  Kirk  (49  111.251) 510,  1005 

Shanck  v.  Northern,  &c.,  R.  B.  Co.  (25 

Md.  462) 667,  668 

Scharlock  v.  Oland  (1  Rich.  L.  807) ....  869 

Schedda  v  Sawyer  (4  McLean,  181). ...  528 

Schell  V.  Stephens  (50  Mo.  379). 913,  923,  1043 

Schenck  v.  Dart  (22  N.  Y.  420) 463 

Schepflin  v.  Dessar  (20  Mo.  App.  669), 

698,  699 

SchifTer  v  Feagin  (61  Ala.  885) ....  1032,  1033 
Schimpf  V.  Tennessee  Mfg  Co.  (6  S.  W. 

Rep.  131.) 641 

Schlntz  V.  McManamy  (33  Wis.  299). .. .  394 

Schlater  v.  Winpenny  (75  Penn.  St.  821)  221 

Schley  u.  Fryer  (100  N.  Y.  71). 833 

V.  Lyon  (6  Ga.  580) 765 

Schlltz  V.  Meyer  (61  Wis.  418) 809,  810 

Bchmaling   v.   Thomlinson  (6   Taunt. 

147) 693,760,  998 

Schmaltz  v.  Avery  (16  Q.  B.  655) 760 


SEOTrON 

Schmerly  v.  Dnoyer  (53  Penn.  St.  335) . .  954 

Schmidt  v.  Sandel  (30  La.  Ann.  3bi) 396 

Schnerr  v.  Lemp  (19  Mo.  40) 635 

Scliool  Directors  V.  Sippy  (54  111.  287)   .  393 
School  District  v.  .^tua  Ins.  Co.   (62 

Me.  330) 353 

School  Town  of  Montlcello   v.  Kendall 

(72Ind.  208) 440 

Schoole  V  Noble  (1  H.  Bl.  23) 668 

Schoregge  v.  Gordon  (29  Minn.  367).386,  816 

Schramm  V.  O'Connor  (98  111.539) 49 

Schroeppel  v.  Corning  (6  N.  Y.  117). . . .  833 

Schroyer  v.  Lynch  (8  Watts.  4.'3)    593,  594 
Schuchardt  v.  Aliens  (1  Wall.  359).  .281, 

348,349,  993 

Schuff  V.  Ransom  (79  Ind.  458) 50 

Schutz  V.  Jordan  (32  Fed.  Rep.  .^5) 148 

Schwartze  v.  Yearly  (31  Md.  270) 966 

Schwertz  v.  Dwyer  (53  Penn.  St.  335)..  954 

Scobeyu.  Ross  (13  Ind.  117) 845 

Scott  V.  Bush  (26  Mich.  418) 811 

V.  Detroit,  &c.  Society  (1  Doug.  119) 

77,  78 

V.  Elmendorf  (12  Johns.  317) . .  .386,  812 

V.  Freeland  (7  S.  &  M.  409) 463 

u  Gorton  (14  La.  115) 46S 

V.  Harmon  (109  Mass.  237) 845 

V.  Irving  (1  B.  &  Ad.  605).  ...354,  375,  931 

V.  Jester  (13  Ark.  438) 679,  685 

«.  Maier  (56  Mich.  554) 600 

V.  Mann  (38  Tenn.  157) 67,  461 

V.  McAlpin  (N.  C.  Term  Rep.  155)...  421 

V.  McGrath  (7  Barb.  53) 848 

V.  Methodist  Church  (50  Mich.  528) 

118,  164 
V.  Middletown,  &c.  R.  R,  Ck).  (86  N. 

Y.  200) 118,  129,  164 

V.  Porcher  (3  Meriv,  652) 567 

V.  Rogers  (31  N.  Y.  676)  474,  476,  477,  954, 

1008,  1052 

V.  Seiler  (5  Watts,  235) 816,  821 

V.  Shepherd  (2  W.  Blackstone,  892)  733 

V.  StausfleM  (L.  R.  3  Ex.  220). .  580,  583 

V.  Surman  (Willes,  400)  267,  780,781,  1044 

V.  Umbarger  (41  Cal.  410) 536 

Scribner  v.  CoUar  (40  Mich.  375)  66,  67,  643, 

953,972,  973 

Scruggs  V.  Driver  (31  Ala  274) 240 

Scudder  v.  Anderson  (54  Mich.  122) 396 

Scully  V.  Scully  (28  Iowa,  208) 699,  601 

Sea  V.  Carpenter  (16  Ohio,  412) 619 

Seago  V.  Marten  (6  Heisk.  308) , .  149 

Seals  V.  Edmondson  (73  Ala.  295") 600 

Sfaman  v.  Whitney  (24  Wend.  260). ...  567 
Searing  «.  Butler  (69  IlL  575)  160,  163,  6-52, 

»77,  1031 

Sears  w.  Wills  (4  Allen,  212) 678 

Seaton  v.  Cordray  (Wright,  102) 839 

V.  Scovill  (18  Kan.  438) 511 

Seaven  v.  Boston,  &c.,  B.  R.  Co.  04 

Gray,  467) 668 

Seaver  v.  Coburn  (10  Cush.  824) 438 

V.  Morse  (20  Vt.  620) 631 

Sedgwick  v.  Stanton  (14  N.  Y.  289) 23 

Segar  v.  Edwards  (11  Leigh,  213) 461 

V.  Parrish  (20  Gratt.  672) 1027 

Seichrist's  Appeal  (66  Penn.  St  237), 

457  459 

Seiple  i>.  Irwin  (30  Penn.  St.  513) !  338, 

339  340  949 

Selling  V.  McKInney  (1  Leigh.  42) .'.... .'  30 
Semenza  v.  Brinsley  (18  C.  B.  N.  S.  467)    773 

Sentell  v.  Kennedy  (29  La.  Ann.  679)..  117, 

397,  1025 

Sergeant  v.  Stryker  (1  Harr.  464) 567 

Seton  V.  Slade  (7Ves.  276) 902 

Severy  v.  Nickerson  (120  Mass.  306) 658 

Sevier  v.  HoUiday  (2  Ark.  512) 531,  824 

SewaUu  Jones  (9  Pick.  412) 898 

Bewanee  Mining  Co.  v.  McCall  (3  Head, 

619) 307,891,  393,  898 


TABLE    OF    CASES    CITED. 


Ixxxl 


SECTION 

Sexton  V.  Wpaver  C141  Mass.  273) 197 

Seymour  v.  Hoadley  (9  C'Dnn.  418) 1037 

V.  Newton  (105  Mass   -^72) 687 

V.  Wyckoflf  (10  N.  Y.  213) 129 

Shack  V.  Anthony  (1  M.  &  S.  572) 758 

Shackman  v.  Little  (87  Ind.  181) 311 

Shafer  v.  Phoenix  Ins.  Co.  (53  Wis.  361)  721 

Shank  v.  Shoemaker  (18  N.  Y.  489) 871 

Shanks  v.  Lancaster  (5  Qratt.  110) 423, 

423,  425 
Shanny  v.  Androscoggin  Mills  (66  Me. 

420) 664.  665,  667 

Shannon  v.  Comstock  (21  Wend.  457). .  623 

u  Marmaduke  (14  Tex.  217)  461 

Sharman  v.  Brandt  (L.  R.  6  Q.  B.  720), 

932,  983 

Sharp  V.  Emmet  (5  Whart.  288) 443 

V.  Goodwin  (51  Gal,  219) 536 

V.  Jones  (18  Ind.  314) 755,  768 

Shattuck  V.  Eastman  (12  Allen,  369)  432,  558 

Shaver  v.  Ingham  (58  Mich.  649)  . .  215,  638 

Shaw  V.  Hudd  (8  Pick.  9) 91 

Shea  V.  Sixth  Ave.  R.  R.  Co.  (62  N.  Y. 

180) 740 

Sheehan  v.  New  York,  Ac,  R.  R.  Co. 

(91  N.  Y.  3*2) 667 

Sheets  v.  Selden  (2  Wall.  177) 90 

ShefiEer  v.   Montgomery  (65  Penn.  St. 

329) 1044 

ShefBeld  v.  Page  (1  Sprague,  285) 623 

Shelby  v.  Oflfutt  (51  Miss.  138) 269,  274 

Sheldon  v.  Atlantic    F.  &  M.  Ins.  Co. 

(26  N.  Y.  460) 931 

».  Sheldon  (3  Wis.  699) 175 

Sheldon  Hat  Blocking    Co.  v.    Eicke- 
meyer  Hat  Blocking  Co.  (90  N. 

Y.6a7)   158 

Shelhamer  v.  Thomas  (7  S.  &  R.  106). . .  279 

Shelton  v.  Darling  (2  Conn.  4:35) 439 

«.  Johnson  (40  Iowa.  84) 601,  60.5 

V.  Livins  (2  C.  &.  J.  411) 895 

V.  Merchants' Despatch  Transp.Co. 

(59  N.  Y.  258) 315,  484 

Shepherd  v.  Evans  (9  Ind.  260). . . .  .754,  7.55 

V.  Harrison  (L.  R.  4  Q  B.  196) 689 

V.  Hedden  (29  N.  J.  L.  334). . .   966 

V.  Lanf ear  (5  La.  336) 67 

Phepler  v.  Scott  (8.5  Penn.  St.  329) 976 

Sheridan  v.  Charlick  (4  Daly,  338) 738 

Sherley  v.  Billings  (8  Bush.  147) .   .  .740,  741 
Sherman  v.  Fitch  (98  Mass.  59) . . .  .118, 

121,  550 

V.  Dutch  (16  111.  285) 739 

V.  Rochester,  &c.  R.  R.   (17  N.  Y. 

153) 667,  663 

V.  Scott  C27  Hun.  334) 882 

V.  Transportation  Co.  (31  Vt.  162) . .  6-35 

Sherman  Bank  v.  Weiss  (67  Tex.  331) . .  782 

Sherrard  v.  Nevins  (2  Ind.  241) 810 

Sherwood  v.  Roundtree  (32  Fed.  Rep. 

113) 745 

V.  Stone  (14  N.  Y.  268) 520,  1014 

Shields  i'.  Blackburne  (1  H.  BL  158).497,  498 

u.  Davis  (6  Taunt.  65) 756 

V.  Yonge  (15  Ga.  349) 667 

Shiff  V.  Lesseps  (22  La.  Ann.  185) 204 

Shipley  v.  Fifty  Associates  (106  Mass. 

194) 747 

Shirland    v.   Monitor   Iron  Works  (41 

Wis.   162) 67 

Shirley  v.  Shirlev  (7  Blackf .  452) 211 

Shirtliff  V.  Whilflcld  (2  Brev.  71) 510 

Shisler  v.  Vaudike  (92  Penn.  St.  447) ...  116 
Shoenfeld  V.  Fleisher  (73  111.  404)  .  .475 

510,  90^.  9.4,  1005,  1008.  1011 

Shores  v.  Caswell  (13  Mete.  413)  ...811,  813 

Short  t).  Millar!  (68  111.  29-3) 201 

V.  Skipwith  (1  Brock.  104) 478 

Shotwell  V.  Hamlin  (23  Mi.ss.  156) 654 

Shuetze    v.    Bailey    (40  Mo.    69) 93. 

430,    432,  441 


SrcCTION 

Shuman  v.  Fitch  (98  Mass.  59) 118 

Shutz  V.  Jordan  (32  Fed.  Rep.  55) 150 

Sibbald  v.  Bethlehem  Iron  Co.  (83  N. 

Y.  378). 620,  937,  9ii4,  9(;6,  907,  968,  978 

Siebold  v.  Davis  (67  Iowa,  561) 273 

Siegel  V.  Gould  (7  Lans.  177) 953,  973 

Siemon  v.  Schurck  (29  N.  Y.  598) 536 

Sievewright  v.  Archibald  (17  Q.  B.  115).  932 

Siffken  v.  Wray  (6  East,  371) 687 

Sigoumey  v.  Lloyd  (8  B.  &  C.  622)..779,  782 

V.  Severy  (4  Cush.  176) 772 

Silliman  v.  Fredericksburg,  &c    R.  R. 

Co.  (27  Gratt.  120) 273,  288,  291 

Silver  v.  Jordan  (136  Mass.  319) 698 

Silverman  v.  Bush  (16  HI.  App.  437) 129 

Silvis  V.Ely  (3  W.  &  S.  420) 820 

Simmons  v.  Almy  (103  Mass.  33) 869 

Simon  v.  Brown  (38  Mich.  552) 86 

V.  Motives  (3  Burr.  1921) 893 

Simonds  v.  Heard  (23  Pick.  120) 426 

Simonton  v.  First  National  Bank  (24 

Minn.  216).... 208 

Simpson  v.  Carson  (11  0:-es;on,  361).204,  207 

u.  Garland  (72  Me.  40)     435 

V.  Lamb(84Eng.  Com.  L.  603) 204 

V.  Lombas  (14  La.  Ann.  103) 8l2 

V.  Pinkerton  (10  W.  N.  C.  423) 535 

v.  Waldby  (30  N  W.  Rep.  199) 514 

Sims  V.  Bond  (.5  B  &  Ad.  389) 755 

V.  Smith  (99  Ind.  409) 62 

V.  State  Ins.  Co.  (47  Mo.  54) 931 

V.  United  States  Trust^Co.  (9  N.^E. 

Rep.  605) 393 

Simson  v.  Brown  (68  N.  Y.  358) 567 

Sinclair  v.  Bowles  (9  B.  &  C.  92).. .  .635,  636 

V.  Jackson  {8  Cow.  543) 550 

Sines  v.  Superintendents  of  the  Poor 

(58Mich.503) 212 

Singer  v.  McCormick  (4  W.  &  S.  26.5). . .  215 
Singer  Mnfg  Co.  v.  Chalmers  (2  Qtah, 

542) 899 

V.  Holdfodt  (86  111.  455) 86 

Singleton  v.  Mann  (3  Mo.  464) 61.  62 

Sioux  City  R.  R.  Co.  v.  First  Nat.  Bank 

(10  Neb.  556) 717 

Sioux  City,  &c.   R.  R.  Co.  v.  Walker 

(49  Iowa,  273) 503 

Skelley  v.  Kahn  (17  111.  171) 497 

Skinner  v.  Dayton  (19  Johns.  513). .138,  171 

V.  Gunn  (9  Port,  305) 348,  350 

Slark   V.    Highgate   Archway   Co.    (5 

Taunt.  '(92) 897 

Slawson  v.  Loring  (5  Allen.  340) 437, 

439    441    442  443 

Sleath  V.  Wilson  (9  C.  &  P.  607) ...'.....'  738 

Sleeper  V.  Abbott  (60  N   H.  162) 885 

Small  V.  Howard  (128  Mass  131)... 491,  494 

u.  Owings  (1  Md   Ch.  363) 91 

Smalley  v.  Clark-  Cii  Yt.  598) 872 

V.  Greene  (52  Iowa.  241) 814 

Smart  v.  Guardians  (36  Eng.  L.  &  Eq. 

496) 600 

V.  Sanders  (5  C.  B.  895) 206 

Smedes  v.   Bank  of  Utica  (20  Johns. 

372) 498,  511 

Smelting:  Co.  v.  Belden  Co.   (127  U.  S. 

387) 760 

Smethurst  v.  Mitchell  (1  E.  &  E.  622) . . 

696,  700 

Smiley  v.  Mayor  (6  Heisk.  604) 97 

Smilie  v.  Hobbs  (5  Atl.  Rep.  711) 849 

Smith  V.  Alexander  (31  Mo.  193).... 430,  448 

v.  Allen  (86  Mo.  178) 92 

V.  Arnold  (5  Mason,  414) .  893 

V.  Barnes  (L.  R.  1  Eq.  65) 536 

V.  Black  (.51  Md.247) 808 

V.  Bossard  (2  McCord's,  (Si.  406). . . . 

812  813 

V.  Brady  (17  N.  Y.  173) '.  635 

V.  Brotherline  (62  Penn.  St.  461). ... 

457,  468.  878 


Ixxxii 


TABLE    OF    CASES    CITED. 


8K0T10N 

Bmith  V.  Chicago.  &c  ,  Ry  Co.  (60  Iowa, 

515) 049 

V.  Clews  (105  N.  Y.  283) 335,  786 

«.  (Dologan  (2  T.  R.  1891 169 

t..  Crews  (2  Mo.  App.  269) 1037 

W.Davis  (45  N   H.  566)     841.  843 

V.  Diclfinson  (6  Hump.  261) 93 

V.  Drake  (:23  N.  J.  Eq.  302) 463 

V.  Fairchild  (7  Colo.  510) 319,  9t.6 

V  First.  Cong.  M.  H.  (8  Pick.  178) ...  63b 

V.  Flint,  &c.,  Ry  (46  Mich.  258)   667 

V.  Gibson  (6  Blackf .  369) 391 

«.  Goode  (29  Ga.  185)  .;..  874 

V.  Hall  (19  111.  App   17) 372,  380 

r.  Hammond  (6  6im.  10) 5^7 

V  Hay  ward  (7  Ad.  &  Ell.  644) .  .621,  622 

V.  Hill  a3  Ark.  173i 640 

V.  Johnson  (71  Mo.  382) 38-3 

V.  Kelly  (43  Mich.  390) 563 

V.  Kidd  (68  N.  Y.  130)..  129,  149,  373 

379,380,     817 

«.  Kron(96N.  C.  892) 716 

V.  Lamberts  (7  Gratt.  138) 375 

«.  Lane  (101  Ind.  449)  219 

V.  Lascelles  (2  T.  R.  187) 510,  1012 

t).  Long  (106  111.  488)   883 

v.Lyon(3Camp  465) 763 

V.  McGregor  (96  N.  C.  101) 3'J9 

V.  McN'air  (19  Kans  3.30) 929 

t>.  Miller  (43  N.  Y.  172) 511 

V.  Mulliken  (2  Minn.  319) 812,    813 

V.  Newburgh(77N   Y.  130) 118 

t>.  Oliver  (31  Ala.  39) 721 

V.  Oxford  Iron  Co.  (42  N.  J.  L.  467).     658 
V.  Peninsular  Car  Works  (60  Mich. 

501) 659 

V.  Perry  (5  Dutcher,  74) 93,    355 

V.  Plumnier(5  Whart.  89) 696 

V.  Railroad  Co.  (5ii  Iowa,  720) 869 

V.  Reynolds  (8  Hun,  130)  745 

«.  Riced  Bailey,  648) 1001 

V.  Sorby  (3  Q.  B.  Diy.  546) 37,    797 

V.  South  Rovalton  Bank  (32  Vt.  841)    730 
V.  St.  Louis,  &c.,  Ry  Co.   (69  Mo. 

39) 659 

V.  Stephenson  (45  Iowa,  645) 402 

V.  Sublett  (28  Tex.  163) 185,  195.    998 

V.  Theobald  (5  S.  W.  Rep.  394) 212 

V.  Townsend  (109  Mass.  500). . . .64-3,    972 
V.  Tracy  (36  N.  Y.  79). .  .149,  151,  178, 

281,  348.  414,  746,  947,     992 

V.  Tramel  (68  Iowa.  488) 116 

V.  Webster  (23  Mich.  298) 73-1 

«.  White  (5  Dana,  376) 252 

V.  Wright  (1  Gaines,  43) 281 

V.  Young  (62  111.  210) 869 

Smith's  Appeal  (69  Penn.  St.  480)  211 

Smock  V.  Dade  (5  Rand.  6.39) 375,    819 

Smout  V.  Ibery  (10  M.  &  W.  1)..543,  544.    549 
Smaller  v.  Union  Canal  Co.  (37  Penn. 

St.  68) 535 

Bmyth  v.  Anderson  (7  Com.  Bench  21)    698 

V.  Harvie  (31  111.  62) 818,    831 

V.  Oliver  (31  Ala.  39) 721 

8my  the  v  Parsons  (14  Pac.  Rep.  444) . .    485 
Snead  v.  Watklns  (1  C.  B.,  N.  S.,  267)...    677 

Snel),/»re(5  Ch.  Div.  815) 813 

V.  Pells(113  111.  145) 526 

Snidar  v   Adams  Express  Co.  (77  Mo. 

523)     755 

Snook  V.  Davidson  (2  Camp.  218) 980 

Snow  V  Grnce  (29  Ark.  131) . . .  .129,  148.    149 

f.  Hix  (54  Vt.  478) 3S6 

V.  Housatonic  R.  R.  Co.  (8   Allen, 

441) 661,667,    670 

1'.  Warner  (10  Mete.  132) 273,    276 

Bn-wball.  £a:parfe(L.R.  7Ch.  548)...     266 

Bnowden  v.  Davis  (1  Taunt.  35S) 564 

Snyder  v.  Castor  (4  Yeates,  353) 600 

V.  Reno  (38  Iowa,  339) 929 

V.  Van  Doran  (46  Wis.  610) 391 


sKcnoN 
Snyder  v.  Wolford  ("'i  Minn.  175). . .  1.")7,  459 
Soames  v.  Spencer  (1  D.  &  R.  32). .  .145,    179 

Soeus  V.  Racine  (10  Wis.  271) 77,      78 

KOKgins  V.  Heard  (31  Miss.  420) 457,    459 

Solarte  v.  Melville  (7  B.  &  C.  4:-i0) 745 

Solly  V.  Rathbone  (2  M.  &  S.  298).    .693,    998 

Solomons  v.  Pender  (3  H.  &  C  639) 952 

Soniers  v.  Equitable  Safety  Ina.  Co  (12 

Gray,  532) 756,    9.31 

Somerset  v.  Hart  (12  Q.  B  Div.  360). . . .     746 

Sorrell  v.  Brewster  (1  Mich.  373) 84 

Souch  V.  Strawbridge  (2  M.  G  &  S.  80H)  211 
Souhagan  Bank  v.  Wallace  (61    N.  H. 

24) 526 

Soulsbv  V  Hodgson  (3  Burr  1474).  ...  188 
Sou'h  Burwick  v  Huntress  '.53  Me.  89)  94 
Southcote  V.  Stanley  (1  H.  &  N.  247). . .  666 
South  &  North  Ala    R.  R.  Co.  v.  Hen- 

lin  (52  Ala.  606) 100.     106 

Southern  Express  Co.  v.  Craft  (49  Miss. 

4811)...  755 

V.  Palmer  (48  Ga.  85) .  ...  130,    161 

Southgate  v    Atlantic  &  Pacific  R.  R. 

Co   (61   Mo  89)  . . . .       9< 

Sowden  v.  Idaho  Quartz  Mining  C".  (55 

Cal    44;i) 659,     670 

Spain  V.  Arnoti  (2  Stark.  257).  .619,  635,    636 

Spaulding  D.  Adams  (32  Me.  212) 6(8 

V.  Swift(18Vt  214)  810 

Spear  v.  Carter  (1  Mit  h.  19)  58.5 

V.  Gardner  (16  La.  Ann.  383) 616 

Spears  u  Ledeigerber  (.56  Mo   16.5)...      813 

Sp-ncev  McMillan  (10  Ala.  583 1   681 

Spencer  V.  Blackman  (9  Wend.l67).476.    574 

V.  Field  (10  Wend.  88) 430,    446 

V  Towles  (18  Mich.  9)        478 

Spoffard  V  Hobbs  (29  Me.  148)     137 

Spoonerv  Thompson  (48  Vt.  259) 129 

Spotswood  V.   Barrow  (6  W.  H.  &  Q. 

^  110) 215 

Sprague  v.  Gillette  (9  Mete.  91). . .  363,  364 
Spraights  v.  Hawley  (39  N.  Y.  441)  .573,  574 
Spring  V.  Ansona  Clock  Co.  (24  Hun, 

175) 682 

u  Ins  Co   (8  Wheat.  268) »80 

Sproat  V.  Porter  (9  Mass.  800)   72 

Spurr  V  Trimble  (1  A  K  Marsh.  278)..      93 

Squire  v.  Wright  (1  Mo.  App  172) 622 

St.  Albans  v  Bush  (4  Vt.  53) 810 

St.  AndrewVj  Lano   Co.   v.  Mitchell  (4 

Fla.  192) 44 

St.  John  V.   Diefendorf  (12  Wend.  261) 

862.    870 
St.  Johnsbury,  &c.  R  R.  Co.  v.  Hunt 

(55  Vt    570) 793,    794 

St.  Joseph  F.  &  M.  Ins.  Co.  v.  Leiand 

(90  Mo   177) 590 

St.  Judes'  ChU'-ch  v.  VanDenberg  (31 

Mich.287) 600 

St.  Louis  t>.  Clemens  (43  Mo.  395) 190 

St.  Louis  Bank  v.  Ross  (9  Mo.  App.  399) 

1043,  1044 
St.  Louis,  &c.  Co.  V.  Parker  (59  lU.  29).  84 
St.  Louis.  &c.  R  R.  Co.  v.  Britz  (72  111. 

2.56) 668 

V.  Dolby  (19  ni.  353) 761 

Be.  Louis,  &c.  Ry  v.  Smith  (3  S.  W.  Rep. 

364) 604 

St.  Louis,  &c    Ry  Co.  v.  Valirius  (56 

Ind  511) 658.    659 

St.  Peter  V  Denison  (58  N.  Y.  4-:n 189 

Stackpole  V.  Arnold  (11  Mass.  27) 91 

Stackhouse  v.  O'Hara  (14  Penn.  St.  88)    819 
Stacy  V.  Dane  County   Bank   (12  Wis. 

639) 614 

Stainback  v.  Read  (11  Gratt.  281).. 273, 

306,  390,  392,     393 

Stainer  v.  Tysen  (3  Hill.  279) 393 

Stalker  v.  McDonald  (6  Hill,  93) 519 

Standard  Oil  Co.  v.  Triumph  Ins.  Co. 

(64N.  Y.  85) Ml 


TABLE    OF    CASES    CITED. 


Ixxxiii 


SECTION 

Stanley  v  Jones  (7  BIng.  869) 845 

Stansburg  v.  United  States  (1  Ct.  of 

CI.  123;)   471 

Stanton  v.  Bell  (2  Hawks.  145) 496,  497 

V.  Camp  (4  Barb.  274) 440 

V.  Embrey  (93  U.  S.  548)  24, 

26,  606,  607,  843,  844,  849 

V.  Hart  (27  Mich.  539) 885 

V.  Ha.slcin  (1  McAr.  558) 844 

V.  McMullen  (7  III.  App.  326) 654 

Staples  V.  Bradbury  (8  Greenl.  181) ...  240 

V.  Staples  (4  Me.  533) 533 

Starbuck  v.  Murray  (5  Wend.  148) 810 

Stark  V.  Parker  (2  Pick.  267) 634,  635 

Starke  w.  Kenan  (11  Ala.  819) 812 

Starks  v.  Sikes  (8  Gray,  609) 167 

Starkweather  v.   Benjamin  (32  Mich. 

306) 571,  573 

Star  Line  «.  Van  Vliet  (43  Mich.  364)..  311 

Starr  u.  Hall  (87  N.  C.  381) 813 

V.  Vand.Theyden  (9  Johns.  253.) ...  878 

State  V.  Atherton  (16  N.  H.  203) 330 

ti.  Bank  (45  Mo.  528) 291,  301 

«.  Bell  (34  Ohio  St.  194) 190 

V.  Cain  (9  W.  Va.  559) 746 

t».  Carothf rs  (1  G  Greene,  461)...  .  810 

t>.  Commissioners  (45  Ind.  601)..   .  588 

f>.  Conkling  (19  Cal.  501) 892 

V  Delafir-ld  (8  Paige,  527) 353 

«.  Fiske  (9  R.  L  94) 190 

V.  Greensdale  U06  Ind.  364) 529 

».  Hirtfl-ld  (24  Wis  60) 746 

w.  Hi  Slings  (10  Wis.  518) 291,  646 

V.  Hanser  (63  Ind.  155) 190 

V.  Hays  (52  Mo.  578) 292 

V.  Horun  (32  Minn.  394) 715 

«.  Malster  (57  Md.  287) 6ro 

«.  Matt  his  (1  Hill,  37) 115 

V.  McChesney  (16  Mo.  App.  259). ...  881 

V.  MewhertHr  (46  Iowa,  88)     .  881 

V.  Morris,  &c.  Ry  Co.  (3  Zab.  360).'.  740 

«.  Newton  (44  la.  45) 7)6 

V.  Paterson  (34  N.  J.  L.  168) 190 

w.  Perry  (Wright,  662) 148 

t>   Poulterer  (16  Id  514) 892 

V.  Rucker  (24  Mo.  5.57) 12  892 

V.  Sims  (76  Ind.  3291) 531 

V.  Smith  (10  R.  I.  258) 746 

V.  Smif  h  (78  .Me.  260). 732  733 

-      V.  Smith  (48  Vt.  266) '  143 

V.  Spartansburg,  &c.   R.  R.  Co.  (8 

S.  C.  129) 141 

V.  Steamboat  Co.  (13  Md.  181)..  746 

V.  Walker  (88  Mo.  279) 204 

r.  Young  (23  Minn  551) 94 

State  Bank  v.  Johnson  (1  Mill,  404).  714 

States  V.  Duval  (Gilp.  356) .' "  953 

Steam  Navitcation  Co.  v.  Wasco  County 

(20re.  209)  .^  598 

Steamboat  v.  King  (16  How.  469) 493 

Steamboat  Co.  v.  Atkins  (22  Penn.  St'. 

522) 756 

V.  Wilkins  (8  Vt.  54) '.'.'.'.'.'.  635 

Steamship   Co.    v.    Merchants'   Desp 

Trans.  Co.  (135  Mass.  421) ... .  „  558 

Stearns  v.  Miller  (25  Vt.  20) 586 

Steele  i».  Dunham  (26  Wis.  393)..     ...  580 

V.  Ellmaker  (1 1  S.  &  R.  86) 862,  806 

r.  McElroy  (1  Sneed,.341) 557 

Steere  v.  Steere  (5  Johns.  Ch.  1) 459 

Stehn  V.  Fasnaeht  (20  La.  Ann.  83)  .  .'  558 

Stein  V.  Kendall  (1  111.  App.  103) 129 

Stenton  v  Jerome  (54  N.  Y.  480) 936 

Stephens  v  Babcock  (3  B.  &  Adol,  354)  197 

V.  Bacon  (7  N.  J.  L.  1) 539 

V.  Board  of  Education  (79  N.Y.  183)  536 

«.  Elwall  (4  M   &  S.  259)  182  574 

V.  Farrar  (4  Bush.  13) 869 

V.  Wfston  (3  B.  &  C.  5.3S) 870 

«.  White  (2  Wash.  203) 834 

Stephenson  v.  Grim  (100  Penn.  St.  70) .  369    ' 


SECTION 

Sterling,  Ex  parte  (16  Ves.  Jr.  258) 864 

Stern  v.  State  (53  Ga.  229) 746 

Stetson  V.  Gurney  (17  La.  166) 994 

V.  Patten  (2  Greenl.  358)  . . .  .93,  137,     550 
Stevens  v.  Babcock  (3  B  &  Adol.  354) . .     197 

V.  Hill  (5  Esp.  247) 567 

V.  Uobins  (12  Mass.  182)   685,  1032 

V.  Walker  (55  III.  868) .  .495,  824,  8:i5,  951 
V.  Wilson  (6  Hill,  512  s.  c.  8  Den.472)  995 
V.  Woodward  (6  Q.  B.  Div,  318)  738,  740 
Stevenson  v.  Bay  City  (26  Mich  44) ... .  729 
V.  Blakelock  (1  M.  &  S.  535)  535,  680,    866 

V.  Mortimer  (Cowp.  805) 761,    779 

V.  Polk  (32  N.  W.  Kep.  340)  443 

Stewart  v.  Brooklyn,  &c.  R.  R.  Co.  (90 

N.Y.  588) 740,    741 

V.  Cooley  (23  Minn.  347^ 684 

V.  Drake  (46  N.  Y  453) 936 

V.  Flowers  (44  Miss  513) 862,    869 

V.  Fry  (7  Taunt,  839; 567 

V.  Houston,  &c.  Ry  Co.  (62  Tex. 

246) 844 

W.Mather  (32  Wis.  344)  67,  68,   461,   611, 

953,  966,     967 

V.  Pickerinar  (35  N.  W.  Rep.  690)  818 

V.  Schall  (tio  Md.  299) 35 

v.  Wood  (63  Mo.  256) 92 

V.  Woodward  (50  Vt.  78)  286,   854,  875, 
1043,    1044 

Stewartson  v.  Watts  (8  Watts,  392) 714 

Stickney  V.  Munroe(44Me.  195) 743 

Stiles  V.  Donaldson  (2  Yates,  (105) 633 

V.  McClelland  (6  Col.  89) 211 

V.  Western  R.  R.  Co  (8  Mete.  44). . .     714 

Still  w.  Hall  (20  Wend.  51) 647,    648 

StUlman  v.  Fitzgerald  (33  N.  W.  Rep. 

564) 142,    818 

Stillwell  V.  Mutual  Life  Ins.  Co.  (72  N 

Y.  385) 360,    950 

Stlmpson  V.  Sprague  (6  Greenl    470) 

495     496 

Stinchfleld  u.  Little  (1  Greenl.  231)419,'  421, 

422,426,    435 

Stivens  v.  Reeves  (9  Pick.  198) 641 

Stockbridge  v.  Crooker  (M  Me.  349) ...  605 
StocW-ing  V.  Sage  (1  Conn.  522)..  ..6.53,  1031 
Stockley  v.  Hornidge  (8  Car.  &  P.  16) .  839 
Stockton  V.  Demuth  (7  Watts.  39).  .  714 
Stoddard  v.  Treadwell  (26  Cal.  294)  647,  648 
Stoddard  Woolen  Mfg  v.  Huntley  (8  N. 

H.  441) 680,  682,    866 

Stoddart  v.  Key  (62  How.  Pr.  137) 235 

V.  United  states  (4  Ct.  of  CI.  516). .    334 

V.  Warren  (7  Rep.  517)  950 

Stoddart's  Case  (4  Ct.  of  CI.  511) 168 

Stokely  v.  Robinson  (34  Penn.  St.  315) 

812,    819 

Stokes  V.  Frazier  (72  111.  428) 936 

V.  Trumper  (2K.  &  J.  232) 854 

Stoll  V.  Sheldon  (13  Neb.  207) 813 

StoUenwerck  v.  Thacher  (115  Mass.  224) 

100,    948 

Stoller  V.  Coates  (88  Mo.  514) 536 

Stone  V.  Cart  Wright  (6  T.  R.  41 1) 575 

V.  Cheshire  R.  R.  Co.  (19  N.  H.  427)    748 

V.  Daggett  (73  111  367) 461 

V  Graves  (8  Mo.  148) 580,    581 

V.  Hills  (45  Conn.  44) 784,  737,    738 

V.  Hooker  (9  Cow.  154) 654 

V.  State  (12  Mo.  400) 899 

«.  Vimont  (7  Mo.  App.  277) 628 

V.  Wood  (7  Cow.  452) 419,    702 

Stoner  v.  Weiser  (24  Iowa,  434) .    470 

Stoney  v.  McNeil  (Harper's  L.  557)  882,    883 

V.  Shultz  (1  Hill,  Ch  465) 143 

Storer  V.  Eaton  (50  Me.  219) 510 

Storey  v.  Ashton  (L.  R.  4  Q  B.  479)737,  738 
Storrs  V.  City  of  Utica  (17  N.  Y.   104) 

738,747,    '^48 

Story  V.  Floumoy  (55  Ga.  56) 680,  1037 

Stothard  v.  AuU  (7  Mo.  318) 365 


Ixxxiv 


TABLE   OF    CASES    CITED. 


SECTION 

Stott  V.  Harrison  (T3  Ind.  17) 830 

Stoughlnn  V.  Baker  (4  Mass.  522)..  .185,  189 

Stouc  V.  Entiis  (28  Kans.  706) 30 

V.  Smith  (98  N.  Y.  25) 870 

Stowell  V.  Eldred  (39  Wis.  614)  414,  702 

Straclian  v.  Muxlow  (24  Wis.  21) 225 

Strahlendorf  v.  Rosentlial  (30  Wis.  674)  658 
Strahorn  v.  Uulou  Stock  Yard  Co.  (43 

LI.  424) ia35 

Strasser  v.  Conklin  (54  Wis.  102) 149 

Stratton  v.  Allen  (1  C.  E.  Green,  229)...  729 

V.  Hussf- V  ( 62  Me.  28tt) 869,  874 

Strauss  v.  Meertief  (64  Ala.  299) 622,  623 

Strawn  V.  O'Hara  (86  111.  53) 288 

Street  Railway  Co.  v.   Bolton  (43  Ohio 

St.  224) 669 

Streeter  v.  Streeter  (43  111.  156) 649 

Striugham  v.  St.  Nicholas  Ins.  Co.  (4 

Abb.  App.  Dec.  315) 80,  100 

Strohecker  v.  Hoffman  (19  Penn.   St 

223) 844 

Strong  V.  His-h  (2  Rob  ,  La.  103) 510 

V.  Stewart  (2  Heisk.  137). .  .308.  1008,  1029 

V.  Stewart  (9  Heisk.  147) 194 

Sturdevant  v.  Pike  (1  Ind.  277) 461 

Sturdivant  v.  Hull  (59  Me.  172) 438,  442 

Sturges  V.  Keith  (57  111.  451). . .  1009 

V.  Theological,  &c.,    Society    (130 

Mas-*.  414) 747,  748 

Succession  of  Dowlpr(29  La.  Ann.  437).  919 

Suit  u.Woodhall  (113  Mass.  391) 721 

Sullivan  v.  India  Mnfg  Co.  (113  Mass. 

396)  659 

V.  Louisville  Bridge  Co.  (9  Bush.  81) 

659,  670 

V.  O'Keefe  (53  How.  Pr.  426) 846 

V.  Oregon,  &c.,  Co.  (12  Orgeon,  392) 

714,  751 

V  Phoenix  Ins.  Co.  (34  Kans.  70). . ..  931 
Summerville  v    Hannibal,   <Sc.,   R.  R. 

Co.  (62  Mo.  391) 84,86.  224 

Summer  v.  Charlotte,  &c.,  R.  R.  Co.  (78 

N.  C.  289) 67 

V.  Reich eniker  (9  Kan.  320) 619 

V.  Saunders  (51  Mo.  89) 338 

Sumwalt  V.  Rldgeley  (20  Bid.  114) 442 

Supervisors  v.  Arrighi  (54  Miss.  668)     . 

112,  118 

V  Brodhead  (44  How.  Pr.  411) 8"itj 

V.  Brush  (77  111.  59) 190 

Surles  V  Pipkin  (69  N.  C.  513) 274 

Sussdorff  V.  Schmidt  (55  N.  Y.  320) 906 

Sutherland  v.  Wyer  (67  Me.  64) 622 

Sutton  V.  Clarke  (6  Taunt.  34) 594 

u.  Cole  (3  Pick.  232) 77 

V.  Tatham  (10  A.  &  E.  27) 9S9 

Suydam  v.  Clark  (5  Sandf .  13-3) 932 

V.  Vance  (2  McLean,  99) 8 15 

Swain  v.  Senate  (5  B.  &  P.  99) 871 

Swanu  Nesmith  (7  Pick.  220) 520,  l'n4 

V.  Stedman  (4  Mete.  552) 1.38 

Swannell  v.  Ellis  (1  Bing.  347) 828 

Swanton  v.   Mining  Co.  (13  Fed.  Rep. 

215) 816 

Swanzey  v.  Parker  (50  Penn  St.  441). . .  929 

Swartwout  u.  Evans  (S7  111.  443)  ...ia5,  164 

Swartz  V.  Ballou  (47  Iowa,  188) 94,  394 

Swayze  v.  Hull  (3  Halst.  54) 30,  645 

Sweeney  v.  Berlin  &  Jones  Envelope 

"Co.  (101  N.  Y.  520).. 656,  6.i9,  660,  661 

V.  Central  Pac.  Ry  Co.  (57  Cal.  15).. 

656,  6.-9 

w.  Easterd  Wall.  166) 782 

Sweeny  v.   Old  C  >lony  &c.,  R.  R.  Co. 

(10  Allen,  368)  658 

Sweet  V.  Jacocks  (6  Paige.  3.55) 4.57,  4.">9 

Sweeting  u  Pearce  (7  C.  B..  N.  S.  449)..  931 
Sweetland  v.   Illinois,  &c..  Telegraph 

Co.  (27  Iowa,  4-33)  714 

Swenson  v.  Aultman  (14  Kan.  273) 714 

Swift  V.  Harriman  (30  Vt.  607) 647,  648 


SECTION 

Swinburne  v.  Swinburne  (28  N.  Y.  568).  5.36 

Swinfen  v.  Swinfen  (24  Beav.  549)  813 

Swires  v.  Brotherline  (41  Penn.  St.  135).  903 
Switzer  v.  Skiles  (3  Gilman,  529) . . .  .456, 

713  798  953 

V.  Wilvers  (24  Kans.  384) '..  86o!  786 

S  woboda  V.  Ward  (40  Mich.  420).658,  659,  670 

Sydnor  v.  Hurd  (8  Tex.  98) . 558 

Syeds  w.  Hay  (4  T.  R.  260) 476 

Sykes  v.  Dixon  (9  Ad.  &  El.  693) 211 

V.  Giles  (5  M.  &  W.  645) 354,  375, 

897,  900 

Synn  v.  Burgoyne  (13  B.  Mon.  400) 195 

Szymanski  v.  Plassan  (20  La.  Ann.  90).  177 

T 

Taber  v.  Cannon  (8  Mete.  456) .  .363,  370  391 

V.  Perrot  (2  Gall.  565) 514 

Tatt  V.  Brewster  (19  Johns.  334).  421,  424  702 

V.  Montague  (14  Mass.  282) 636 

Tagg  V.  Bowman  (99  Penn.  St.  376) 585 

.  V.  Bowman  (108  Penn.  St.  273)  585 

V.  Tennessee     National     Bank    (9 

Hei.sk.  4;9) 730,  743 

Taggart  v.  Stanberg  (2  McLean  543)..  348 

Taintor  v.  Prendergast  (3  HUl.  72) 696, 

769,  773,  1017 

Talbot  V.  Bowen  (1  A.  K.  Marsh,  436) .  .59,  89 

V.  McGee  (47  B.  Mon.  377) 813 

Talcott  V.  Bronsoii  (4  Paige  .501) 871 

V.  Chew  (27  Fed.  Rep.  273 1     . .  1027,  1028 

Talmage  v.  Bierhause  (103  Ind.  270;  348,  349 

Tallon  V  Mining  (3o.  (55  Mich.  140 212 

Tally  V.  Reynolds  (1  Ark.  99) 810 

Tankersley  ".  Anderson  (4  Desaus.  45). 

813,  819 

Tankersville  v.  Graham  (B  Ala.  245) ...  'se 

Tannatt  v.  Rocky  Mountali   National 

Bank  (1  Colo  278) 432,  442,  471 

Tanner  V.  European  Bank  (L.R.I  lixch. 

261) 527 

Tapley  v  Coffin  (12  Gray,  420) 843,  845 

V.  McGee  (6  Ind.  56) 51,63 

Tarbell  v.  Dickinson  (3  Cush.  345) 838 

Tasker  v.  Kenton    Ins.  Co.  (59    N.   H. 

438) 130 

V.  Shepherd  (6  H.  &  N.  575) ...  .240,  247 

Tate  t).  Evans  (7  Mo.  419) 398 

V.  Marco  (4  S.  E.  Rep.  71) 521 

V.  Tate  (75  Va  522) 885 

Tatterson    v.    Suffolk    Mnfg   Co.    (108 

Mass.  56) 212,  633 

Taul  V.  Edmondson  (37  Tex.  556) 622 

Taussig  V.  Hart  (58  N.  Y.  425) 462, 

936,  952,  854 

Taylor  v.  A.  &  M.  Association  (o8  Ala. 

229) 150 

V.  Bates  (5  Cow.  379) 533,  833 

V.  Bemiss  (110  TJ.  S.  42) ..  844 

V.  Elacklow(3  Bing.  235) 878 

V.  Conner  (41  Miss.  722) 135 

V.  D'Temus  (16  N.  J.  473) 580 

V.  Gorman  (4  Ir.  Eq.  5.50) 830 

V.  Kymer  (3  B  &  Ad.  .320) 787 

V.  Labeau  me  ( 17  Mo.  338) 397 

V  Mer-sU  (.55  111.  52) 89 

V.  Plumer  (3  M  &  S  562),  536,  780,  781,  792 

V.  Pope  (5  Cold.  413) 1050 

1'.  Roiiinson  (8  Taunt.  fi48) 1035 

V.  Robinson  (14  Cal.  396). . .  .137.  168,  875 

V.  Salmon  (4  Myl.  &  Cr.  134) 459 

r.  Rhelton  (30  Conn.  122) 550 

V.  Sp  ars  (6  Ark.  381) 631 

t).  Spears  (8  Ark.  4.;9) 53S 

V.  Starkev  (59  N.  H.  142) '152 

V.  Toiipkins  (2  Heisk.  89) 684 

V.  Wilson  (11  M^tc.  44) 897 

t'.  Young  (56  Mich.  2a5) . . .  .718    869,  878 

Taymouth  v.  Koehler  (35  Mich.  26)  97, 

■^                                                          112.  118 


TABLE    OF    OASES    CITED. 


Ixxxv 


8KCTION 

Temple  v.  Pomroy  (14  Gray,  128). .  .3B3,  870 

Tenney  v.  Berger  (93  N.  Y.  524)  828,  854, 

655,  856 

Terhune  v.  Colton  (2  Stock,  Eq.  21) . . . .  813 

Terrell  ik  Bank  (12  Ala.  502). . .  .722,  723,  730 

V.  Butterfleld  (92  Ind.  1) 531 

V.  The  B.  F.  Woolsey  (4  Fed.  Rep. 

55-,') 867 

Terry  v  Bissell  (26  Conn.  23) 929 

V.  Farfjo  (10  Johns.  114) 391 

V.  Huntington  (Hard.  4S0) 580 

Terwilligeru,  Beals(GLans.  403)  1023 

Tf-wksbury  v.  Spruance  (75  lU.  187),  461  462 

Texada  v.  Beaman  (6  La.  82) 883 

Texas,  &c   Ry  Co.  v.  McAtee  (61  Tex. 

695) 659 

Texas  Land  &  Cattle  Co.  v.  Carroll  (63 

Tex.  48) 448,  449 

Texas  Mexican   Ry  v.    Whitmore   (58 

Tex.2r6) 667 

Thacher  v.  Dinsmore  (5  Mass.  299) 443 

V.  Hannahs  (4  Robert,  N.  Y.  407)  . .  679 

?'.  Pray  (113  Mass.  291) 149,  1044 

Thallhimer  v.   Brinckerhoff  (4  Wend. 

394) 714 

Thames  Iron  Works  v.  Patent  Derrick 

Co.(lJ.&H.93) 867 

Thatcher  v.  Winslow  (5  Mason.  58) 7.'53 

Thayer  v.  Daniels  (113  Mass.  129) 869 

V.  Meeker  (86  111.  470)  102 

V.  St.  Louis,  &c.  R.  R.  Co.  (22  Ind. 

26) 668 

V.  Wadsworth  (19  Pick.  349) ....  634,  635 

Threfall  v.  Berwick  (26  L.  T.  Rep.  [N. 

S.]794) 677 

Third  National  Bank  v.  Harrison  (10 

Fed.  Rep.  243) 729 

V.  Vicksburs  Bank  (61  Miss.  112). . .  514 

Thomas  v.  Atkinson  (38  Ind.  256)..  .288.  697 

1).  Caulkett  (57  Mich.  392) 22,  38 

V.  Josliii  (30  Minn.  388) 95,  414,  416 

V.  K.^rr  (3  Bush.  619) . .  .893,  912,  913,  923 

V.  Steele  (22  Wis.  207) 803,  809,  810 

V.  Wells  (140  Mass.  517) 86 

Thompson  v.  Bank  (82  N.  Y.  1) 382 

V.  Blink  (3  Hill,  S.  C.  Law,  77).. 511,  514 

V.  Barnum  (49  Iowa,  392) 784,  789 

r.  Bell  (10  Exch.  10) 84 

t).  Boonville  (61  Mo.  282) 190 

V.  Boyle  (85  Penn.  St.  477) 849 

V.  Chicago.  &c.    Ry  Co.   (14   Fed. 

Rep.  5H4) 658 

V.  Chicago,  &c.  Ry  (18  Fed.  Rep. 

239) 667 

V.  Craig  (16  Abb.  Pr.  33) 745 

V.  Davenport  (9  B.  &  C.  78)  696,  697,  698 

V.  Elliott  (73  111.  221) 372,  380 

f.  Fargo  (49  N.  Y.  188) 755 

V.  Gardiner  (1  C.  P.  D.  777) .   . .  .932,  937 
V.  Glouce.«ter  City  Sav.  Inst.  (8  Atl. 

Rep.  97) 536 

».  Hallet  (26  Me.  141) 470 

V.  Hermann  (47  Wis.  602) 663 

V.  Kelly  (101  Mass.  291) 756,  897,  898 

V.  Kilborne  (28  Vt.  750) 880 

V.  Lyon  (20  Mo.  155) 53 

V.  McCn  Hough  (31  Mo.  224) 929 

V.  Perkins  (3  Mason,  232)  520,  536, 

1014,  1044 

V.  Phoenix  Ins.  Co.  (75  Me.  55) 743 

V.  Schermerhorn  (6  N  Y.  92) 190 

V  Stewart  (3  Conn.  171) 288,  532 

V.  Tolatid  (48  Cal.  99) 9.36 

V.  Whartnn  (7  Bush,  56.3) 82,  33 

Thome  v.  Bell  (Lalor's  Sup.  430) 116 

V.  Deas  (4  Johns.  84)..  .475,  478,  498, 

510,  1011 

Thornton  i>.  Charles  (9  M.  &  W.  802). . ..  932 

V.  Kempster  (5  Taunt.  786) 932 

V.  Meux  (1  M.  &M.  43) 932 

V.  Thornton  (31  Gratt.  212) 534 


Thorp  V.  Bateman  (37  Mich.  68) 599 

V.  Burling  (llJ..hns.2a5) 182,  574 

u  Cole  (2  Cr.  M.  &  R.  367) 188 

Throop  V.  Bussing  (11  Johns.  285) 574 

Thurberv.  Ander.son  (88  111.  167) 84,  86 

Thurston  v.  Blanchard  (22  Pick.,  Mass. 

20) 994 

t).  Percival  (1  Pick.  415) 845 

TIbbetts  V.  Knox,  &c.,  R.  R.  Co.  (62  Me. 

437) 748 

Ticer.  Gallup  (2  Hun,  446) 348,  850 

Tidrick  v.  Rice  (13  Iowa,  214) 129 

Tier  v.  Lampson  (35  Vt.  179) 84,  224 

Tiernan  v.  (Commercial  Bank  (7  How. 

648) 194,  514 

V.  Jackson  (5  Pet.  580) 667 

Tiffany  v.  Lord  (40  How.  Pr.  481) 818 

Tiffin  V.  McCormack  (31  Ohio  St.  633)..  748 

TiMenv.  Barnard  (43  Mich.  376) 488 

Tiller  V.  Spradley  (39Ga.  35) 432.  956 

Tilton  V.  United  States  Life  Ins.  Co.  (8 

Da!y,84) 812 

V.  Wri.a;ht  (74  Me.  214) 838 

Timherman  t'.  ('raddock  (70  Mo.  638)..  966 

Timothy  v.  Wright  (8  Gray,  522) 33 

Tinges  V.  Moale  (25  Md.  480) 969 

Tippets  V.  Walker  (4  Mass.  595). ...421,  558 

Tisdale  v.  Tisdale  (2  Sneed.  596) 455 

Titus  V.  Kyle  (10  Ohio  St.  445) 441 

V.  Mechanics'  Nat.  Bank  (35  N.  J. 

L.  588) 614 

Tobacco  Co.  v.  Terrill  (13  Bush.  413). . ..  893 
Tobin  V.  Portland,  &c.,  R.  R.  Co.  (59 

Me.  183) 668 

Todd  V.  Bourke  (27  La.  Ann.  385) 951 

V.  Emily  (7  M.  &  W.  427) 72,  78. 

V.  Munson  (53  Conn.  579) 883 

Toland  v.  Murray  (18  Johns.  24) 1039 

Toledo,  &c.,  Ry  Co.  v.  Goddard(25Ind. 

18.5) T16 

v.  Prince  (50  111.  26) 181 

Toledo,  Wabash  &  West.  Ry  Co.  v.  Har- 
mon (47  III.  298) 741 

V.  Rodrigues  (47  111.  188) 121 

Toll  Bridge  Co.  v.  Betsworth  (30  Conn. 

380) 730; 

Tombs  V.  Alexander  (101  Mass.  255)  612,  966 

Tomlinson  v  Collet  (3  Blackf.  436)  ....  6 

Tooke  V.  HoUingsworth  (5  T.  R.  215)...  1044 

Tooker  v.  Sloan  (30  N.  J.  394) 149 

Tool  Co.  V.  Norris  (2  Wall.  52). . .  .22,  25, 

28,  29,  645 , 
Topham  v.  Braddick  (1  Taunt,  572)  — 

1023,  1025 

V.  Roche  (2  Hill,  307) 279 

Torrey  v.   Bank  of  Orleans  (9  Paige, 

649) 457 

V.  Bryant  (16  Pick.  528) 580 

Towle  V.  Hatch  (43  N.  H.  270) 888 

V.  Leavitt  (23  N.  H.  360).  - .  .273,  279, 

282,  28S,  358,  362,  894,  902 

r.  Raymond  (58  N.  H  64) 674 

V.  Stevenson  (1  Johns.  Cas.  110)....  171 
Town  of  Grafton  v.  Follansbee  (16  N. 

H.4.50) 151 

Towne  v.  Jaquith  (6  Mass.  46) 77 

To wnes  v.  Brichett  (12  Leigh,  173) 900 

Townsend  v.  Corning  (23  Wend.  435). . . 

179,  419 

V.  Drakeford  (1  0.  &  K.  20) .   932 

V.  Hubbard  (4  Hill,  351) 430,  558 

V.  Van  Tassel  (S  Daly,  261) 905 

Tozer  v.  Saturlee  (3  Grant,  162) 48 

Tracy  v.  Cloyd  (10  W.  Va.  19) 593,  694 

V.  Tallmage  (14  N  Y  162) 89 

Trainer  v.  Morison  (78  Me   100).  ..9,  341,  842 

Traub  v.  Milliken  (57  Me.  63)  1048 

Travers  v.  Crane  (15  Cal.  12).  ..240,  244,  846 

Traynham  v.  Jackson  (15  Tex.  170) 448 

Treadway  v.  Sioux  City,  &c.,  R.  R.  Co. 

(40  Iowa,  526) 812 


Ixxxvi 


TABLE    OF    OASES    CITED. 


SBCTIOH 

Treadwell  v.  Davis  (84  Oal.  601) 765 

Treasurers  r.McDowell  (1  Hill.184).  813,  820 

Treat  v.  Stanton  (14  Conn.  445) 756 

Trenor  v.  Railroad  Co.  (50  Cal.  222). .. .  896 

Treuttel  v.  Bra  ndon  (8  Taunt.  100) 782 

Trevelyan  v.  Charter  (9  Beav.  140) 791 

Tripp  u.  Barton  (13  R.  I.  130) 907 

V.  Bishop  (66  Penn.  St.  424) 211 

V.  Swanzey  Paper  Co.  (13  Pick.  291)  437 

Trist  V.  Child  (21  Wall.  441) ..  .22,  28,  24,  645 

Trixlone  v.  Tagliaf  erro  (10  MP.  C.C  175)  174 

Trowbridge  v.  Scudder  (11  Cush.  88). ..  550 

V.  Weir  (6  La.  Ann.  706) 386 

Trudo  V.  Anderson  (10  Mich.  357) 121, 

825,852,  997 

Tnieblood  v.  Trueblood  (8  Ind.  195). 51,  62,  58 

Trueman  v.  Loder  (11  A.  &  E.  589). . . .  696, 

709  932  998 

Trumbull  v.  Nicholson  (27  HI.  149).'. . . . .'  819 

Trust  V.  Repoor  (15  How.  Pr.  570) 856 

Trustee  v.  McCormick  (41  111.  323) 135 

Trustees  v.  Allen  (14  Mass.  175) 601 

Trustees.  &c.  v.  Dupuy  (31  La.  Ann.  805)  533 
Trustees   of    Watertown  v.  Cowen   (5 

Paige,  510)    838 

Tuckerv.  Bass  (5  Mass.  164) 421 

V.  Cocke  (32  Miss.  184) 61 

V.  Harris  (18  Qa.  1) 585 

V.  Jerris(75Me.  184) 113 

V.  Humphrey  (4  Bing.  516) 687 

V.  Lawrence  (56  Vt.  467) 204 

V.  Moreland  (10  Pet.  58) 54 

V.  St.  Louis,  &c.,  Ry  Co.  (54  Mo.  177)  896 

V.  Taylor  (53  Ind.  93) 676,  678,  865 

Tucker   Mnfg    Co.    v.   Fairbanks   (98 

Mass.  105) 425,432,433,  550 

Tudor  V.  Whiting  (18  Mass.  212) . . .  .699,  1048 

Tull  u  David  (45  Mo.  446) 89-5 

TuUer  r.  Voght  (13  m.  285) 740 

Tunney  v.  Midland  Ry  Co.  (L.  B.  1  0. 

P.  296)  668 

Turk  V.  RidRe  (41  N.  Y.  206) 567 

Turman  v.  Temke  (84  111.  286) 240 

Turnbull  v.  Ricnardson  (14  W.  Rep.  444)  849 

Turner  v.  Jones  (1  Lans.  147) 917 

V  Keller  (66  N.  Y.  66) 390 

V.  McOart V  (22  Mich.  265) 567 

V.  North  Beach,  &c.,  R.  R.  Co.  (34 

Cal.  594) 751 

V.  Phoenix  Ins.  Co  (55  Mich.  237) . .  115 

«.  Thomas  (10  Mo.  App.  342) 441 

v.  Rusk  (53  Md.  65) 50 

V.  Trustees  (6  Exch.  543) 689 

V.  Wilcox  (54  Ga.  593) 129,  149 

Turpen  v.  Booth  (56  Cal.  65) 588 

Turrill  v.  Crawley  (13  Q.  B.  197) 677 

Turwin  v.  Gibson  (3  At  k.  720 ). .  863 

Tuthill  1).  Wheeler  (6  Barb.  862) 765 

V.  Wilson  (90  N.  Y.  423) 702 

Tutt  V.  Brown  (5  Littell,  1) 769,  773 

V.  Hobbs  (17  Mo.  486) 426 

Tuttle  V.  Brown  (4  Gray,  457) 714 

Twelfth  Street  Market  Co.  v.  Jackson 

(102  Penn.  St.  269) 964 

Twiggs  V.  Chambers  (56  Ga.  279) 869 

Tyler  v.  Ames  (6  Lans.  280) 210,  616 

V.  Freeman  (3  Cush.  261) 898 

V.  Parr  (52  Mo.  249) 966,  967 

Tynes  v.  Grimstead  (1  Tenn.  Oh.  508)..  461 

Tyree  v.  Parham  (66  Ala.  424) 1025 

Tyson  v.  Raihroad  Co.  (61  Ala.  554) 662, 

664,  665,  668 

V.  State  Bank  (6  Blackf.  225) 614 

Tyus  V.  Rust  (37  Ga.  574) 527 


Uhlich  V.  Muhlke  (61  111.  499) 466 

Ulen  V.  Kittredge  (7  Mass.  233) 89 

Ulrich  V.  Commonwealth  (6  Bush.  400)  746 

V.  McCormick  (66  Ind.  243) 234 


SEOTION 

Umback  v.  Lake  Shore,  &c.  By  Co.  (83 

Ind.  191) 659,  670 

Underbill  v.  Gibson  (2  N.  H.  352) 756 

Underwood  v.  Nicholls  (17  C.  B.  289)..  1003 

Union  Bank  t).Campbell(4  Humph.  394)  730 

V.  Campbell  (4  Humph.  394). . .  .729,  730 

V.  Geary  (5  Pet.  99) 812,  816,  820 

V.  Goran  (10  S.  &  M  333) 813 

V.  Middlebrook  (33  Conn.  95) 116 

V.  Mott(.39  Barb.  180) 893 

Union  Canal  v.  Loyd  (4  W.  &  S.  893) ...  731 
Union  Gold  Mining  Co.  v.  Rocky  Mt. 

Nat.  Bank  (2  Col.  248) 161 

V.  Rocky  Mt.  Nat.  Bank  (2  Col.  565)  129 
Union  Mining  Co.  v.  Rocky  Mt.   Nat. 

Bank  (2  Col.  248) 776 

Union  Mutual  Life  Ins.  Co.  v.  Master 

(3  Fed.  Rep  881) 121 

Union  Mutual  Ins.  Co.  v.  Wilkinson  (13 

Wall    U  S   222""!      .              ....  279 

Union  Nat.  Bank  i-.'Car  (I's  Fed!  Rep. 438)  35 

United  States  v.  Bartlett  (Dav.  13) 41 

,   V.  Commissioner  (5  Wall.  563) 592 

V.  Dutal  (Gilp.  356) 963 

V.  Fillebrown  (7  Pet.  28) 646 

«.  Guthrie  (17  How.  284) 592 

V.  Jarvis  (Dav.  274) 238,  616 

V.  Macdaniel  (7  Pet.  1) 646 

V.  Villalonga  (23  Wall.  85) 1034 

United  States  Bank  v.  Goddard  (6  Ma- 
son, 366) 611 

United  States  Express  Co.  v.  Rawson 

(106  Ind.  21.'i) 142,  167 

United  States  Ins.  Co.  v.  Shiver  (3  Md. 

Ch.  3^1) 730 

United  States  L.  Ins.  Co.  v.  Advance 

Co.  (80  111.  549)...   485,  989 

United  States  Tel.  Co.  v.  Qildersleve 

(29  Md.  23:2) 755,756,  763 

United  States  Trust  Co.  w.  Wiley  (41 

Barb.  477) 527 

University  v.  Lassiter  (83  N.  0.  38) ... .  810 

Upchurch  v.  Norsworthv  (15  Ala.  705) .  561 

Upharav.  Lefavour(ll  Mete.  174).. 682,  10^9 

Uphoff  V.  Ulrich  (2  111.  App.  399) 966 

Upton  V.  Archer  (41  Cal.  85) 94,  894 

V.  Suffolk  County  Mills  (11  Cush. 

586) 281,  348,850,  947,  993 

Utioa  Ins.  Co.  v.  Toledo  Ins.   Co.  (17 

Barb.  132)    798 

Utica,  &c.  R.  R.  Co.  v.  Brinckerhoflf  (21 

Wend.  139) 211 

Utter  V.  Chapman  (38  Cal.  659)...  .682,  623 

V. 

Vaccaro  v.  Toof  (9  Heisk.  194) 221 

VaU  V.  Conant  (15  Vt.  314) 819 

V.  Durant  (7  Allen,  408) 1022,  1033 

V.  Meyer  (71  Ind.  159) 62 

V.  Owen  (19  Barb.  22) 588 

Vaillant  v.  Dodemead  (2  Atk.  524) 885 

Valentine  v.  Piper  (22  Pick.  85) 98,  321 

V.  Stewart  (15  Cal.  387) 34 

Vallev.  Cerre  (36  Mo.  575) 1035 

Vauada  v.  Hopkins  (1  J.  J.  Marsh.  285) 

295,  308,  322,  414 
Van  Alen  v.  American  National  Bank 

(52  N.  Y.  1) 536,  780,  781 

V.  Vanderpool  (6  Johns.  69)  495,  990,  1006 

Van  Arman  v.  Byington  (38  III.  443). . . .  601 

Vance  v.  Erie  Ky  Co.  (32  N.  J.  L  334). .  741 
Vanderbilt  v.    Turnpike   Co.  (2  N.  Y. 

479)                                               127  839 

Vanderline  v.  SmYth  (18  Mo.  App.  55)'813j  819 
Vanderp"  lel  v.  Kearns  (2  E.  D.  Smith, 

170) 643 

Van  Dusen  v.  Mining  Co  (36  Cal.  571)  100,  224 

Van  Duzer  v.  Howe  (21  N.  Y.  531)  282 

Van  Epps  v.  Van  Epps  (9  Paige,  237)  68,  457 

Van  Etta  v.  Everson  (28  Wis.  33) . .  .94,  894 


TABLE   OF   CASES  CITED. 


Jxxxvii 


SECTION 

Van  Home  v.  Fonda  (6  Johns.  Ch.  888)  457 
Van  Keuren  v.  Corkins  (4  Hiin,  129). . .  878 
Van  Staphorst  v.  Pearce  (4  Mass.  258) 

755,  993,  1039 
Van  Steenbergh  v.  Bl^elowCS  Wend.  42)  588 
Van  Valkenburgh  v.  Lenox  F.  Ins.  Co. 

(51  N.  Y.465) 981 

Van  Wart  v.  Woolley  (8  B.  &  C.  439). .614,  618 
Van  Wyck  v.  Brasher  (81  N.  Y.  260) ...      49 

Varley  v.  Garrard  (2  Dowl.  490) 817 

Varnum  v.  Martin  (15  Pick.  440)  496,  496,    827 

ti.  Meserve  (8  Allen,  1.58) 243 

Vater  v.  Lewis  (36  Ired.  288) 4:^9 

Vaughn  v.  Congdon  (56  Vt.  Ill) . . .  .685,    587 

V.  Sheridan  (50  Mich.  155) 818 

Vauxem  v.  Bostwlck  (7  Atl.  Rep.  698) 

211,    628 

Vawter  v.  Baker  (23  Md.  63) 1051 

Veazie  v.  Parker  (72  Me.  443) 966,    967 

Veile  V.  Blodgett  (49  Vt.  270) 536 

Veil  V.  Mitchel  (4  Wash.  105) 1044 

Venablesv.  Smith  (2Q.  B.  Div.279).735,  736 
Vennum  v.  Gregory  (21  Iowa,  828).. 619,  1027 

Vent  V.  Osgood  (19  Pick.  572) 59,    651 

Veocelius  v.  Martin  (18  Pac.  Eep.  8-38).  404 
Vermont  Central  B.  R.  Co.  v.  Clayes 

(21  Vt   31) 756 

Vertue  v.  Jewett  (4  Camp.  81) 687 

Very  V.Levy  (13  How.  345) 815 

Vianna  v.  Barclay  (3  Cow.  283) 171 

Vlcksburg,  &c.  R.  R.  v.  O'Brien  (119 

U.S.99) 714 

Vlcksburg,  &c.  R.  R.  Co.  v.  Ragsdale 

(54  Miss.  200)  84,      88 

V.  Wilkins  (47  Miss.  404) 670 

Victor  Sewing  Machine  Co.  v.  Heller 

(44  Wis.  265) 852,  995,  996,    997 

Viele  V.  Germania  Ins.  Co.  (26  Iowa,  9).  931 
VUas  V.  Downer  (21  Vt.  419) ...  .606,  841,  849 
Village  of  Caholda  v.  Rautenberg  (88 

111.219) 440 

Vincent  v.  Rather  (81  Tex.  77)...  .171,  1015 

Vinton  v.  Baldwin  (95  Ind.  483) 684 

V.  Baldwin  (88  Ind.  104) 612,    970 

Violett  V.  Powell  (10  B.  Mon.  847) 769 

Virginia.  &c.  K.  R.  Co.  v.  Sayers  (26 

Gratt.  328) 715 

Vlscher  v.  Yates  (11  Johns.  23) 757 

Volger  V.  Ray  (131  Mass.  439) 72 

Von  Hurter  v.  Spengeman  (17  N.  J.  Eq. 

185) 457 

Von  Wien  v.  Scottish  Ins.  Co.  (62  N.  Y. 

490 931 

Voorhles  v.  Harrison  (22  La.  Ann.  85) .  813 
Vosburgh  v.Huntineton  (15  Abb.Pr.  254)    527 

Vose  V .  Dolan  (108  Mass.  155) 394 

V.  Willard  (47  Ad.  820) 588 

Voss  V  Bachop  (5  Kan.  59) 633 

V.  Robertson  (46  Ala.  483) 856,    786 

Vreeland  v.  Vetterlein  (83  N.  J.  L.  247)  969 
Vroomaa  v.  Turner  (69  N.  Y.  284) 667 

•w 

Wabash,   &c..  By  Co.  v.  Rector  ^(104 

111.   296) 751 

Waddell  v.  S wann  (91  N.  C.  108) 631 

Waddington  v.  Oliver  (2  B.  &  P.  N.  R.  61)  635 

Wade  V.  Hamilton  (30  Ga.  450) 1035 

Wadhams  v.  Gay  (73  111.  415) 818 

Wadley  v.  Davis  (63  Barb.  500) 281 

Wadsworth  v.  Gay  (118  Mass.  44).  .1007,  1023 

Wagoner  v.  Watts  (44  N.  J.  L.  126).  .91,  95 

Wainwright  v  Read  (1  Desau.  Eq.  573).  895 

t>.  Wilkinson  (62  Md.  146) 51 

Wakefield  v.  South   Boston  R.  B.  (17 

Ma8s.544) 714 

Walcott  V.  Keith  (22  N.  H.  198) 678 

Waldele  v.  New  York  Central,  &c.,  R. 

R.  Co.  (95  N.  Y  274) 714 

Walden  v.  Bolton  (65  Mo.  405) 813 


SEOTION 

Waldron  v.  Ward  (Sty.  449) 885 

Walker  V.  Bank  (9  N.  Y.  582) 546 

V.  Birch  (6  T.  R.  258) 10.j;j 

V.  Carrington  (74  111.  446) 68,  464 

V.  Clay  (21  Ala.  797) 843 

V.  Cronin  (107  Mass.  656) 793 

V.  Denison  (86  111.  142) 204,  220 

V.  Derby  (5  Biss.  134) 201 

V.  Detroit  Transit  Ry  Co.  (47  Mich. 

388) 787 

V.  Floyd  (30  Ga.  237) 874 

V.  Goodman  (21  Ala.  647) 820 

V.  Goodrich  (16  111.  341) 858 

V.  Hallock  (32  Ind.  239) 680,  588 

V.  Herring  (21  Gratt.  678) 893 

t>.  Osgood  (98  Mass.  848) 67, 

648,  952,  953,  972 

V.  Rostron  (9  M.  &  W.  411) 567,  568 

V.  Sargeant  (14  Vt.  247) 871 

V.  Scott  (13  Ark.  644) 819 

t>.  Skipwith  (Meigs,  502) 6,  279 

V.  Smith  (1  Wash.  152) 478 

w.  Stevens  (79  111.  193) 515,  881 

V.  Swartwout  (12  Johns.  444) 426,  659 

V.  Tirrell  (101  Mass.  2.57) 612 

V.  Walker  (5  Heisk.  425) ....  178,  475,  483 

Wall  V.  Schneider  (59  Wis.  3.52) 85 

V.  Trumbull  (16  Mich.  228).  .580,  582,  588 

Wallace  v.  Bradshaw  (6  Dana,  382) 1017 

V.  Branch  Bank  (1  Ala.  565).... 307,  892 

w.  Finberg  (46  Tex.  35) 741 

V.  Floyd  (29  Penn.  St.  184) 608,  608 

V.  Sawyer  (90  Ind.  499) 149 

V.  Woodgate  (1  C.  &  P.  675) 674,  678 

Wallinl£s  tJ.Holliugsworth  (6  Wheat.241)  179 

Wallis  V.  Johnson  School  Tp.  (75  Ind.  868)  440 

V.  Manhattan  Co.  (2  Hall  495).  256,  257 

V.  Shelly  (80  Fed.  Kep.  747) 619,  561 

V.  Warren  (4  Exch.  361) 622 

Walls  V.  BaUev  (49  N.  Y.  464) 281,  486 

Walmseley  v.  Booth  (2  Atk.  25). . 878 

Walsh  V.  Pierce  (12  Vt.  130) .  .84,  86 

V.  Shumway  (65  111.  471) 856,  857 

r.  Walley  (L.  B.  9  Q.  B.  867).  .        .  641 

V.  Whitcomb  (2  Esp.  565) ...  206 

Watpole  w.  Bishop  (31  Ind  156)     833 

Walter  v.  Klock  (55  111.  362) 459 

Walther  v.  Wetmore  (1  E.  D.  Smith,  7)  994 

Walton  V.  Torrey  (Har.  Ch.  259) 468 

Walworth  Co.  Bank  v.  Farmers'  L.  & 

T.  Co.  (16  Wis.  629) 121,  149,  164 

Wambole  v.  Foote  (2  Dak.  1) 51,  268 

Wanless  v.  McCanless  (38  Iowa,  20) 485 

Waples  V.  Hastings  (8  Ham.  403) 51 

Ward  V.  Ames  (9  Johns.  138) 623 

V.  Bank  of  Kentucky(7  T.  B.  Mon.93)  893 

V.  Craig  (87  N.  Y.  550) 841,  862,  864 

V.  Evans  (2  Ld.  Raym.  928) 876 

ti.  Fellers  (8  Mich.  281) 647,  649 

V.  Freeman  (2  Ir.  C.  L  Rep.  460),  580 

V.  Lawrence  (79  111.  295) 966 

V.  Roy  (60  N.  Y.  96) 820 

V.  Smith  (3  Sandf.  Ch.  592) 468 

V.  Smith  (7  Wall.  447) 269,  875 

V.  Steamboat  (8  Mo.  358) 53 

t>.  Warfleld  (3  La.  Ann.  471) 171 

V.  Williams  (26  111  447),  129,  156,  160,  168 

W.Wilson  (3  Mich.  1) 648 

V.  Wood  (13  M  ass.  539) 756 

Warden  v.Eichbaum  (3  Grant,  Cases,  42)  149 

Warder  v.  White  (14  111.  App.  50).   .770,  772 

Ward's,  &c.  Co.  v.  Elkins  Qi4  Mich.  4o9)  287 
Ware  v.  Hayward  Rubber  Co.  (8  Allen, 

g4\                            003 

V.  Morgan  (67  Ala.  46i) .'.".*.'!;!.' ."!.*!  546 

Ware's  Adm.  v.  Russell  (70  Ala.  174) . .  845 
Warfleld  v.  Campbell  (38  Ala.  627)  839, 

869,  870,  871,  878 

Waring  v.  Richardson  (11  Ired.  L.  77) . .  631 
Warlow  V.  Harrison  (1  E.  &  E.  295).  91 3. 

914,  916,  917 


Ixxxviii 


TABLB    OF    OASES    CITED. 


■20TI0N 

Warnerti.  Bridges  («  Ark.  385) 581 

V.  Comstock  (55  Mich.  615) 799 

V.  Erie  By  Co.  (39  N.  Y.  468) 668 

V.  ttriswold  (8  Wend.  665) 831 

V.  Martin  (11  How.  209;.3&4, 994, 996,  998 

V.  Smith  (8  Conn.  14) 632 

Warren  v.  Hewitt  (45  Ga.  501) 652 

V.  Ocean  Ins.  Co.  (16  Me.  439} 97 

Warren  Bank  v.  8\iffolk  Bank  (lOCusb. 

58i) 197,  614 

Warrick  v.  Warrick  (3  Atk.  294) 721,  722 

Warriner  v.  People  (74  III.  346) 1023 

Warring  v.  WiUiams  (8  Pick.  322) 94 

Washburn  v.  Nashville,  &c.   R.  R  Co. 

(3Head.638) 44 

Washington  t^.  Johnson  (7  Humph.  468)  820 
Washington  Bank  u  Lewis  (22 Pick.  24) 

274,  729 

Wass  V.  M.  M.  Ins.  Co.  (61  Me.  537) 842 

Wassell  V.  iteardon  (11  Ark.  705) 713, 

798  953 

Wasson  v.  Mitchell  (18  Iowa,  153) .'  681 

Water  Co.  v.  Ware  (16  Wall.  566) 747 

Waterhouse  v.  Citizens'  Bank  (25  La. 

Ann.  77) 375 

V.  Dorr(4Me.333) 892 

Waterman  v.  Clark  (76  Dl  423) 648 

V.  Gilson  (5  La.  Ann.  672) 601 

Waterman  Real  Estate  Exchange  i>. 

Stephens  (15  West.  Rep.  193). . .  966 

Waters  v.  (irace  (23  Ark.  118) 863 

V.  Moaarch,  Ac.  Ins.  Co.  (5  E.  &  B. 

870) 1005 

Waterson  v.  Rogers  (21  Kan.  529) 148 

Watkins  v.  Cousall  (1  E  D.  Smith,  65).  643 

».  Vince  (2  Stark.  368) 86 

Watson  V.  Brooks  (11  Ore.  271>. 966 

D.  Brooks  (8  Sawy.  316) 966,  967 

V.  Erb  (33  Ohio  St.  35) 459 

V.  Hopkins  (27  Tex.  637) 402 

t>.  King  (4  Cowp.  272) 206 

V.  Lyon  (7  DeG.  M.  &  G.  288) 866 

«.  Muirhead  (57  Penn.  St.  247). .829,  831 

V.  Railway  Co.  (58  Tex.  434).     .656,  659 

V.  Sherman  (84  111.  263) 89.  93 

V.  Steever  (25  Mich.  386) 600 

t>.  Swann  (11  C.  B.  H.  S.  771) 124 

V.  Union  Iron  &  Steel  Co.   (U*  Di. 

App.  509) 469 

Watt  V.  Watt  (2  Barb.  Ch.  371) 252 

Watts  V.  Kavanagh  (35  Vt.  34) 225 

V.  Van  Nes8(l  Hill,  76) 38 

Way  V.  Davidson  (12  Gray,  465) 678 

V.  Townsend  (4  Allen,  114) 680 

Waynesville  Nat.  Bank  v.  Irons  (8  Fed. 

Rep.  1) 729 

Weare  v.  Grove  (44  N.  H.  196) 550 

Weaver  v.  Carnall  (35  Ark.  198) 432 

V.  Devendorf  (3  Den.  117).. 581,  686,  588 

V.  Ogle'ree  (39  Ga.  586) 84,  86 

Webb  V.  Browning  (14  Mo.  354). 91,  841.  842 

V.  Burke  (5  B.  Mon.  51) 432,  441 

V.  Graniteville  Mnfg  Co.  (11 8.C.396)  729 

V.  Paxton  (36  Minn.  532) 643,  972 

V.  Smith  (30  Ch.  Div.  192) 919 

Webber  v.  Williams  College  (23  Pick. 

302) 370,390,  391 

Weber  v.  Weber  (47  Mich.  569) 571,  573 

Webster  v.  Brown  (2  Rich.  N.  S.  428). . .  419 

V.  Wade  fl9Cal.  291) 622 

V.  Wray  (17  Neb.  579) 282 

Weed  V.  Adams  (37  Conn.  3^^ 1008, 

1009,  1032,  1033 

V.  Black  (2  McAr.  268)  22 

V.  Boutelle  (56  N.  H.  570) 862, 

863,  864,  868,  869,  870,  871 

V.  Burt  (78  N.  Y.  192)  621 

V.  Carpenter  (4  Wend.  219) 179 

Weeks  v.  Qoode  (6  Com.  B.,  N.  S.  867). .  681 

V.  Holmes  (12  Gush.  215) 601 

V.  Propert  (L.  R.  8  C.  P.  427) 645 


8HCTION 

Weeks  V.  Wayne  Circuit  Judges 873 

Weger  V.  Pennsylvania  R.  R.  (55  Penn. 

St.  460)     667 

Weisbrod  v.  Chicago,  &c.,  Ry  (Do.  (18 

Wis.  35) 56,  5a  62,  63 

Weise  v.  Milwaukee  Co.  Supervisors  (51 

Wis.  564) 212 

Weise's  Appeal  (72  Penn.  St.  351). .  .273, 

276  290  292 

Weiss  V.  Whittemore  (28  Mich.  366) . . . .'  764 

Weisse  V.  New  Orleans  (10  La.  Ann.  46)  812 

Weisser  v.  Denison  (10  N.  Y.  68) ...  .718,  721 

Weist  V.  Lee  (3  Yeates,  47)  817 

Weite  V.  United  States   (7  Ct.  of  CI. 

535) 226 

Welch  V.  Goodwin  (123  Mass.  71) 554 

V.  Hoover  (5  Cranch.  444) 91 

V.  Welch  (103  Mass.  502) 55 

Wellborn  V.  Weaver  (17  Ga.  267) 240 

Wellford  v.  Chancellor   (5  Gratt.,  Va. 

39) 457,  459 

Wellington  v.  Jackson  (121  Mass.  157).  116 

Wells  V.  Elsam  (40  Mich.  218) 869,  870 

V.  Evans  (20  Wend.  258) 93 

V.  Hatch  (43  N.  H.  246) 862,  869,  781 

V.  Hole  (1  Doug.  238) 868,  873 

V.  Usher  (2  Hill.  Ch.  167)  421 

Welsh  V.  Cochran  (63  N.Y.  185)  386,  820,  839 

Wenans  v.  Lindsey  (1  How.  577) 819 

Wen  tworth  v.  Day  (3  Mete.  352) 674 

Werthelmer  v.  Howard  (30  Mo.  420). ...  680 

West  v..  Ball  (12  Ala.  340)  819 

V.  Houston  (3  Harr.  15) —  810 

West   of   England  and   South  Wales 

Bank,  In  re  (32  Eng.  Rep.  810) . .  781 
West  Boylston  Mnfg  CJo.  v.  Searle  (15 

Pick.  225) 990 

Western  Cement  Co.  v.  Jones  (8  Mo. 

App.  873) 646 

Western,  &c.,  R.  R.  Co.  v.  Bishop  (60 

Ga.  465) 659,  671 

V.  Nolan  (48  N.  Y.  513) 688 

V.  Strong  (52  Ga.  461) eTl 

Western  Screw  Co.  v.  (jousley  (72  lU. 

531) 74,  188 

Western  Transportation  Co.  v.  Barber 

(56  N.  Y.  552) 625 

Western  Union  Tel.  Co.  v.  Railroad  CJo. 

(1  McCrary,  418) 797 

Westfleld  Bank  v.  Cornen  (37  N.  Y.  820)  730 

Weston  V.  Davis  (24  Me.  374) 601 

West  wood  V.  Bell  (4  Camp.  348) 693 

Wetherbee  v.  Fitch  (1 17  111.  67) 813 

Wetmore  v.  Little  Miami  R.  R.  Co.  (19 

Ohio  St.  110) 740 

Weyant  v  .Railroad  Co.  (3  Duer.  360)  735,  736 

Weyerhauser  v.  Dun  (100  N.  Y.  150). . . .  516 

Wharton  v.  Hammond  (20  Fla.  934)....  878 

Wheat  V.  Dotson(12  Ark.  699) 647 

Wheatcroft,  In  re  (6  Ch.  Div.  97) 862 

Wheatley  v.  Tutt  (4  Kans.  240) 45,  70 

V.  Williams  (1  M.  &  W.  533) 882 

Wheeler  v.  Guild  (20  Pick.  545) 814 

V.  Raskins  (41  Me.  432) 532 

r.  Kna?g8  (8  Ohio,  169) 204 

V.  Nevins(34Me.  54) 93 

V.  Reed  (36  111.82) 554,  957 

V.  Wason  Mnfg  Co.  (135  Mass.  294). .  663 

V.  Willard  (44  Id.  641) 878 

Wheeler  &  Wilson  Mnfg  (}o.  v.  Boyce 

(36  Kans.  350) 741 

V.  Givan  (65  Mo.  89)  352, 354,  356, 786,  997 

Whelan  v.  Lynch  (60  N.  Y.  469) 1009 

V.  Rpilley  (61  Mo.  565) 377 

Wheless  v.  Second  Nat.  Bank  (1  Baxt. 

469) 741 

Whipple  V.  Barton  (63  N.  H.  613) 878 

V.  Whitman  (13  R.  I.  512) 813 

Whistler  v.  Forster  (14  C.  B.  N.  S.  248).  786 

Whiteu  Bank  (102  U.  S.  658) 441 

V.  Chapman  (1  Stark.  113) 975 


TABLE   OF   OASES    OITED. 


Ixxxix 


8K0TI0N 

White  V.  Chanteau  (XO  Barb.  202) 1039 

V.  Connecticut  F.  Ins.  Co.  (120  Mass. 

330) 931 

».  Cuyler  (6  T.  R.  176) 417 

t».  Davidson  (8  MdL  169) 77, 

129,  185.  189,    386 

V.  DolUver  (113  Mass.  400) 792,    799 

V,  Dwyer  (31  N.  J.  Eq^  394)^ 745 

V.  Equitable  Nuptial  Ben.  Union  (76 

Ala.  251) 86 

tJ.  Fuller  (67  Barb.  267) 485 

V.  Oaiuer  (9  Moore,  41) 681 

V.  Graves  (107  Mass.  328) 50 

V.  J ohnson  (67  Me.  287) 818,    820 

V.  Leighton  (15  Neh.  424) 86 

V.  Madison  (26  N.  Y.  117) 549,    550 

V.  i\liller(71  N.  Y.  118) 714,    715 

V.  Nashville  (2  Svcan.  364) 190 

V.  0>3land  (12  Rich.  308) 61 

V.  Proctor  (4  Taunt.  209) 893 

V.  Sanders  (32  Me.  1S8> 149 

V.  Sawyer  (16  Gray,  586) 743 

V.  Skinner  (13  Johns.  307).. 421,  441,     5.50 

V.  Smith  (54  N.  Y.  522) 954 

V.  Ward  (26  Ark.  445t 68,    461 

V.Webb  (15  Conn.  305)...   7G5 

White's  Case  (6  Mod.  18) 803 

Whitebeck  v.  New  York,  &c.,  R.  R.  Co. 

(36  Barb.  644) 607 

Whitecomb  v.  Jacob  (1  Sails.  161 .. .  .780,    781 
Whited  V.  Qermania  P.  Ins.  Co.  (76  N. 

Y.415) 931 

Whiteford  v.  Burekmyer  (1  GilL  127). ..    714 
Whitehead  v.  Greetham  (2  Bing.  464). .    834 

i».  Lord  (7  Ex.  691) 858 

V.  Reddick  (12  Ired.  L.  95) 558 

V.  Tuckett  (15  East.  408) 6,  87,    281 

V.  Wells  (29  Ark.  99) ....  121,  522,  530,    533 
Whiteley  v.  Pepper  (2  Q.  B.  Div.  276), 

735,    736 
White  Mountain  Bank  v.  West  (46  Me. 

15) 1037 

Whiteside  v.  United   States  (93  U.   S. 

247) 2r3,    291 

Whitesides  v.  Hunt  (97  Ind.  191) 35 

Whitewell  v.  Warner  (20  Vt.  425) 118 

Whitfield  V.  Brand  (16  M.  &  W.  282). . . .  1044 

V.  Lord  Le  Despencer  (Cowp.  754). .    593 

Whiting  V.  Barney  (30  N.  Y.  330). .  .882,    885 

Whitley  v.  Murray  (34  Ala.  155) 635 

Whitemarsh  v.  Hall  (3  Den.  376). ...  59,    e.-il 

Whitmore  v.  Smith  (5  H.  &  N.  824) 188 

Whitner  v.  Sullivan  (2  S.  E.  Rep.  391). .    856 

Whitney  v.  Dutch  (13  Mass.  457) 51,      54 

V.  Esson(99  Mass.  808) 511 

V.  Martine  (88  N.  Y.  535) 490,    495 

V.  Merchants'  Union  Express  Co. 

(104  Mass.  152) 474 

V.  State  Bank  (7  Wis.  620) 354,    375 

V.  Wyman  (101  U.  S.  392) 443, 

446,  448,  555,     S.W 
Whittemore  v.  Hamilton  (51  Conn.  153)    790 

Whitten  v.  Jenkins  (34  Ga.  305) 7v;i 

Whittey  v.  Murray  (:34  Ala.  165) ti35 

Whittington  v.  Ross  (8  111.  App.  239).     .     376 
Whitwam  v.  Wisconsin,  &c.,  R.  B.  (68 

Wis.  408) 667 

Whitwell  V.  Warner  (20  Vt.  425) 1 18 

Whitworth  V.  Ballard  (56  Ind.  279) 2:il 

V.  Hart  (22  Ala.  343) 61 

Whyte  V.  Nashville  (2  Swan.  364) 190 

Wickersham  v.  Chicago  Zinc  Co.   (18 

Kans.  481) 723,    709 

Wickware  v.  Bryan  (11  Wend.  545) 580 

Widner  v.  Lane  (14  Mich.  124) 130 

Widrig  V.  Taggart  (51  Mich.  103) 59,    651 

Wieland  v.  White  (109  Mass.  392) 81 1, 

812,  816,    8i;0 

Wiggett  V.  Fox  (11  Ex.  832) 667 

Wiggins  V.  Chicago  (ti8  111.  372) 892 

V.  Hathaway  (6  Barb.  632) 593,    594 


SKOTION 

Wight  V.  Rindskopf  (43  Wis.  844) 27 

Wigmore  V.  Jay  (5  Ex.354) 667 

Wilbu  r  V.  Ly ude  (49  Cal.  290) 463 

Wilburn  v.  Larkin  (3  Blackf.  55) 425 

Wilcox  V.  Railroad  Co.  (24  Minn.  269)..    274 

ti.  Routh  (9  S.  &  M.  478) 279 

Wilder  t>.  Cowles  (100  Mass.  487)..  957 

V.  Ranney  (59,  N.  Y.  7). 77 

V.  Stanley  (49  Vt.  105) 648 

V.  Weakley  (34  Ind  181) 48 

Wildey  V.  Collier  (7  Md.  27-3) 23 

WUey  V.  Knight  (27  Ala.  336) 721 

V.  Logan  (95  N.  C.  358) 511,    531 

V.  Mahood  (10  W.  Va.  206) 875,    819 

u  Moor  (17  S.  &  R.  433)  94 

V.  Pratt  (23  Ind.  63.3) 810 

Wiley's  Appeal  (8  W.  &  S.  244) 469 

Wilkes  V.  Kills  (2  H.  Bl.  555) 908 

WUkins  V.  Carmichael  (1  Doug.  104). ..    868 

V.  Reed  (6  Me.  220) 699 

Wilkinson  v.  Campbell  (1  Bay.  169). ...     906 
V.  Griswold  (12  S.  &  M  669).... 515,    831 

V.  Heavenrich  (58  Mich.  .')74) 211 

V.  HoUoway  (7  Leigh.  277) 375,    819 

V.  King  (2  Camp.  335) 786 

V.  Oliveira  (1  Scott  46) 34 

Wilks  V.  Back  (2  East.  142).421,  423,  42.5,    428 
Willard  v.  Buckingham  (36  Conn.  395). 

279,281,    714 

V.  Goodrich  (31  Vt.  597) 820 

Willett  V.  Chambers  (Cowp.  614)  77 

Williams  v.  Anderson  (9  Minn.  50) 622 

V.  Bailey  (L.  R.  1  H.  L.  200) 116 

V.  Berbeck  ( Hoff.  Ch.  359) 228 

V.  Brown  (28  Ohio  St.  547) 849 

V.  Butler  (35  111.  544) 117 

V.  Chicago  Coal  Co.  (60  111.  149)  622,    623 

V.  Cochran  (7  Rich.  45) 301 

V.  Crutcher  (5  How.  71) 93,  94,    394 

V.  Evans  (L.  R.  1  Q.  B.  352) 897,    900 

V.  Everett  (14  Ease,  582) 567 

V.  Fitch  (18  N.  Y.  551) 880 

V.  Getty  (31  Penn.  St.  461) 279,    281 

V.  Gibbs(6N.  &  M.  788) 827 

V.  Oilman  (3  Greenl.  276) 486 

V.  Gray  (21  La.  Ann.  110) 38 

V.  Hathaway  (19  Pick.  387) 600 

V.  Higgins  (.30  Md.  404) 478 

V.  Ingersoll  (89  N.  Y.  508) 870 

V.  Johnston  (92  N.  C.  532) 354,    375 

V.  Littlefield  (12  Wend   362) 1008 

t>.  McGraw  (52  Mich  480)  966 

V.  McKay  (40  N.  J.  Eq.  189) 498 

V.  Merle  (11  Wend.  80) 573,     574 

V.  Merritt  (23  111.  623) 164 

V.  Millington  (1  H.  Bl.  82)... 756,  897,     909 

V.  Mitchell  (17  Mass.  98) 279 

V.  Ocean  Ins.  Co.  (2  Mete.  303) .  .7.56,    931 
V.  Planters'  Ins.  Co.  (57  Miss.  759). .    741 

V.  Poor  (3  Cranch.  251) 906 

t).  Reed  (3  Mason,  404)  822 

V.  Bobbins  (16  Gray,  77) 442 

V.  Robinson  (73  Me.  186) 211 

V.  School  District  (21  Pick.  75) 78 

V.  Second  National  Bank  (83  Ind. 

237) 438 

t».  Storm  (6  Cold.  203) 129,     155 

V.  Storrs  (6  Johns.  Ch.  853) 530,     532 

V.  Tatnall  (29  111.  564) 721 

V.  TUt  (36  N.  Y.  319) 1034 

V.  Tracey  (!I5  Penn.  St.  308) 812 

V.  Walker  (2  Sandf.  Ch.  325). . .  .373,    817 

V.  Weaver  (75  N.  Y.  30) 588 

ti.  White  (70  Me.  138) 955 

V.  Williams  (55  Wis.  300)  529 

V.  Woods  (16  Md.  220) 193 

Williamson  v.  Berry  (8  How.  495) 996 

V.  Blown  (15  N.  Y.  354) 724 

V.  Cambridge  B.   R.   Co.  (144  Mass. 

148) 715 

t;.  Moriarity  (19  Week.  Rep.  818) ....    878 


XQ 


TABLE    OF    CASKS    CITED. 


SECTION 

Williams  v.  Taylor  (5  A.  &  E.  175).. . .  211 
Williamson,  Ac,  Paper  Co.  v.  Bosby- 

shell  (14  Mo.  App.  534) 812 

Willis  V.  Bellamy  (52  N.  Y.  Super.  Ct. 

373) 421,  430 

V.    Johnson  School   Township  (75 

Ind.  368) 426 

V.  Lyman  (22  Tex.  268) 812 

W.Oregon,  &c.,  R  E.  (3  W,  Coast 

Kep.  L>40,  Or.) 667 

V.  Vallette  (4  Mete.  186) 721,  722 

Wills  V.  Barrister  (36  Vt.  220) 674 

Wilson,  In  re  (12  Fed.  Rep.  235) 860, 

862,  864,  865,  867,  868,  870 
Wilson  V.  Board  of  Education  (63  Mo. 

137) 6.34 

V.  Brett  (11  M.  &  W.  118) 496,  499 

«.  Dane  (68  N.  H.  392) 117,  602 

V.  Edmonds  (24  N.  H.  517) .240,  244 

V.  Greensboro  (54  Vt.  533) 607 

V.  House  (10  Bush,  406) 869 

V  Loring  (7  Mass.  393) 924 

V.  Madison,  &c.,  R.  K.  (18  Ind.  228).  667 

t>.  Marsh  (34  Vt.  352) 588 

V.  Martin  (40  N.  H.  88) 674,  684 

V.  Mayor  (1  Den.  595) 580,  590 

V.  McCullough  (23  Penn.  St.  440) . . . 

729,  780 
V.  Minnesota,  &c.,  Ins.  >  Assn.  (36 

Minn.  112) 721 

t>.  Peverly  (2  N.  H.  548) 737,  738 

v.  Raslalt  (4  T.  R,  759) 886 

V.  Russ  (20  Me.  421) 495,  834 

t>.  Smith  (3  How.  763) 195 

t).  Stewart  (5  Penn.  L.  J.  Rep.  450).  251 

V.  Stratton  (47  Me.  120) 841 

«.  Troup  (2  Cow.  195)  248 

t>.  Tumman  (6  M  &  (i.  242) 118 

V.  White  (71Ga.506) 747 

V.  Willimantic  Linen  Co.  (50  Conn. 

*«) 664,  665,  668 

V.  Wilson  (4  Abb.  App.  Dec.  621). . .  469 

V.  Wilson  (52  Iowa,  44) 599 

V.  Wilson  (26  Penn.  St.  393) 475,  483 

V.  Zulueta(14  Q.  B.  405) 556 

Wilson  Sew.  Mach.  Co.  v.    Sloan  (50 

Iowa,  367)  714 

Wilton  V.   Middlesex   R.    R.    Co.    (107 

Mass.  108) 734,  735,  786 

Wilts  V.  Morrell  (66  Barb.  511) 474 

Wiltshire  v.  Sims  (1  Camp,  258) ....     . .  948 

Winans  v.   Allemania  F.  ins.  Co.   (88 

Wis.  342) 931 

Winchester  v.  Baltimore,  &c.  B.  R   (4 

Md.  231) 729,  730 

V.  Heiskell  (16  Lea,  556) 869.  872 

V.  Howard  (97  Mass.  803).. 760,  769,  771 

Wing  V.  Glick  (56  Iowa,  473) 440 

V.  Neal  (2  Atl.  Rep.  881) 997 

Wingate  v.  Mechanics'  Bank  (10  Penn. 

St.  104) 514 

«.  Waite  (6  M.  &  W.  739) 585 

Winn  t>.  Dillon  (27  Miss  493) 457,  459 

Winne  u.  Hammond  (37  111.  99). . . .  1032,  1037 

Winter  v.  C!oit  (7  N.  Y.  288) 676, 

1032,  1035,  1037 

V.  Geroe  (5  N.  J.  Eq.  819. 463 

Wlnterbottom  v.  Wright  (10  M.  &  W 

109) 666 

Winterset  Bank  v.  Eyre  (3  McCrary, 

175) 873 

Wires  V.  Briggs  (6  Vt.  101) 837,  838 

Wirt  V.   McEnery  (21  Fed.  Rep.  2.33) 

329,  330 

Wiseman  v.  Vandeputt  (2  Vern.  203) . .  687 

Wisp  V.  Hazard  (66  Cal.  459) 685 

Witherell  v.  Gartham  (6  T.  R.  388) 78 

Withington  v.  Herring  (5  Bing.  456) ...  315 

Woder  v.  Powell  (31  Ga.  1) 812 

Wolf  V.  Gerr  (43  Iowa,  339) 637 

V.  Studebaker  (65  Penn.  St.  459) 623 


TTT  .«      -^      ,.  SEonoK 

Wolf  V.  Van  Metre  (27  Iowa,  848) 899 

Wolfe  V.  Howes  (20  N.  Y.  197).  .629,  631,  640 

u  Luyster  (1  Hall,  146) 362,  906 

V.  Pugh  (101  Ind.  293)  ....748,    744,  1014 

Wolff  V.  Koppel  (2  Denio.  368) 520 

V.  Koppel  (5  Hill  458) 520 

Wolford  V.  Herrington  (74  Penn.  St. 

311) 457 

Wonder  v.  Baltimore,  Ac.  R.  R.  Co  (32 

Md.  411)  656,659,  668 

Wood  V.  Anders  (5  Bush,  601) 869 

V.  Auburn,  &c.  R   R.  Co.  (8  N.  Y. 

160) 95  414 

V.  Ayres  (39  Mich.  345 600 

V.  Boylston  Nat.  Bank  (129  Mass. 

358) , 519 

V.  Brewer  (73  Ala.  259) 554 

e.  Brewer  (66  Ala.  570) 600 

V.  Cobb  (13  Allen,  58) 747 

V.  Goodridge  (6  Cush.  117) 96, 

308,  323,  417,  427 
V.  McCain  (7  Ala.  800)      .   .           6 

126,  167,  168,  807.  404 

».  McCann  (6  Dana,  366) 22 

V.  New  Bedford  Coal  Ck)  (121  Mass. 

252) 668 

t>.  Pierson  (45  Mich.  313) 674 

V.  Rabe  (96  N.  Y.  414) 457,  459 

V.  Verry  (4  Gray,  357) 874 

V.  Weir  (5  B.  Mon.  544) 839 

V.  Whelen  (93  111.  155) 121 

Wood  Mow.  &  Reap.  Machine  Co. 

V.  Crow  (70  Iowa,  340) . .  100,  273,  349 

Woodbury  v.  Larned  (5  Minn.  339).  129,  375 

Woodfolk  V.  Blount  (8  Hay,  147) 718 

Woodford  v.  McClenahan  (4  Gilm.  85).  348 

Wooding  V.  Bradley  (76  Va.  614) 288 

Woodley  v.  Metropolitan  Ry.  Co.    (2 

Exch.  Div.  506) 663 

Woodman  v.  Davis  (32  Kan.  344) 468 

V.  Joiner  (10  Jur.  N.  S.  852) 738 

Woodruff  V.  Dubuque,  &c.,  R,  R.  Co. 

(30  Fed.  Rep.  91) 207,  208 

V.  McGehee  (30  Ga.  158) 769,  773 

V.  Munroe  (33  Md.  146) 116 

u.  Nashville,  &c.,  R.  R.  Co.  (2  Head. 

87) 1036 

Woods  V.  Russell  (5  B.  &  Aid.  942) 634 

Woodward  v.  Harlow  (28  Vt,  338) 154 

V.  Suydam  (11  Ohio,  360) 171 

Woodward  Iron  Co.  v.  Jones  (80  Ala. 

123) 661 

Woodworth  v.  Sweet  (51  N.  Y.  8) 66 

Woody  V.  Old  Dominion  Ins.  C!o.  (81 

Gratt.  862) 931 

Wooley  V.  Constant  (4  Johns.  54) 94 

Woolsey  v.  Tompkins  (23  Wend.  324). ..  77 

Woolsey,  The  B.  F.  (4  Fed.  Rep  553)...  867 

Word  V.  Winder  (16  La.  Ann.  Ill) 633 

Workman  v.  Wright  (83  Ohio  St.  405).. 

114,  116 

Worley  v.  Spurgeon  (88  Iowa,  465) 745 

Wormell  v.  Maine  Cent.  R.  R.  Co.  (79 

Me.  397)  659,  670 

Worrall  v.  Munn  (6  N.  Y.  229). . .  .89,  95, 

141,  414,  703 
Worsley  v.  Scarborough  (8  Atk.  392) . . . 

721  722 
Worthington  v.  Cowles  (112  Mass.  30) . .' 

554  558  929 

Worthy  v.  Johnson  (8  Ga.  236) .'.463',  464 

Wortman  v.  Price  (47  111.  22) 63 

Wright  v.  Atlanta  (54  Ga.  645) 892 

v.  Boynton  (37  N.  H.  9) 155,  185 

V.  Cabot  (47  N.  Y.  Super.  Ct.  229) ...  774 

V.  Cabot  (89  N.  Y.  570) 339,  957 

V.  Central  R.  R.  Co.  (16  Ga.  38) 493 

V.  Cobleigh  (31  N.  H  339) 863.  870 

V.  Crabbs  (78  Ind.  487) 35,  39 

V.  Daily  (26  Tex.  730) 375 

V.  Eaton  (7  Wi8.595) 182 


TABLE   OF   OASES    CITED. 


ZCl 


SECTION 

Wright  V.  Gihon  (3  C.  &  P.  582) 639 

V.  Hake  (38  Mich.  525) 871 

V.  Herrick  (128  Mass.  240) 224 

V.  London,  &c.,  K.  R.  Co.  (1  Q.  B. 

Div.  252) 669 

V.  Mayer(6  Ves.  280) 882 

V.  New  Yoi  k  Cent.  R.  R.  Co.  (25  N. 

Y.  565) 667 

V.  Parks  (10  Iowa,  342) 812 

V.  People  (61  111.  382) 1023 

V.  Rawson  (52  Iowa,  329) 658 

V.  Snell  (5B.  &  Aid.  350) 685 

V.  Solomon  (19  Cal.  64) 281,  994 

r.  Tebbetts  (91  U.  S.  252) 844 

V.  lerry  (2  S.  Rep.  6) 676 

V.  Treadwell  (14  Tex.  255) 873 

V.  Walker  (30  Ark.  44) 878 

V.  Ward  (4  Ruf?s.  215) 527 

V.  Wilcox  (19  Wend.  345) 740,  741 

V   Wright  (70  N.  Y.  9  i) 869 

Wunderlin  v.  Cadogan  (50  Cal.  613)....  94 

Wye.  ff  u.  Bergen  (1  N.  J.  L  214) 818 

Wyck  V.  Walters  (81  N.  Y.  352) 745 

Wyckoffv.  Bliss  (12  Daly.  324) 966 

Wyeth  V.  Braniflf  (84  N.  Y.  627) 745 

WyUe  V.  Coxe  (15  How.  415) 842,  844 

V.  Marine  Nat.  Bank  (61  N.  Y.  415).  612, 

620.  %6,  967 

Wyllis  V.  Ault  (47  Iowa,  46) 745 

Wyman  v.  Smith  (2  Sandf .  331) 667 

Y 

Yager  v.  Atlantic,  &a.  R.  R.  (4  Hughes, 

192) 667 

Yale  V  Eames  (1  Mete.  Mass.  488) 321 

Yarborough  v.  Bank  of  England   (16 

East,  6) 97 

Yates  r.  Foot  (12  John.  1)  757 

V.  Freckleton  (2  Doug  623) 81 7 

V.  Hoppe  (9  Com.  B.  541) 567 

V.  Lansing  (9  Johns.  395) 580 

V.Robertson  (80Va.  475) 843 

V.  RusseU  (17  Johns.  461) 812 


BEOnON 

Yauger  v.  Skinner  (14  N.  J.  Eq.  389). . .  48 

Yeager's  Appeal  (100  Penn.  St.  88) ... .  460 

Yeamans  v.  James  (27  Kan.  195)  878 

Yeaton  v.  Boston,  &c.   R.   R.  Co.  (135 

Mass.  418) 656,  659 

Yerbey  v.  Grigsby  (9  Leigh,  Va.  387). ..  324 

Yerger  v.  Barz  (56  Iowa,  77) 721 

Yerrington  v.  Greene  (7  R.  I.  589).  ..240.  626 
Ye  Seng  Co.  v.  Corbitt  (9  Fed.  Rep. 

423) 654 

Yoakum  v.  Tilden  (3  W.  Va.  167) 81 8 

Yon  V.  Blanchard  (75  Ga.  519) 1024 

Yordan  V.  Hess  (13  Johns.  492) 883 

York  Bank  v.  Appletou  (17  Me.  55)  ...  818 
York   Buildings   Co.    v.    McKenzie  (8 

Paton,  378) 4«9 

York  Co.  Bank  v.  Stein  (24  Md.  446) 

106,  281,  554,  957 

Yorke  v.  Grenaugh  (2  Ld.  Raym.  867) .  677 
Yorton  v.  Milwaukee,  &c.  Ry  Co.  (62 

Wis.  367) 869 

Youghioheny  Iron   Co.    v.    Smith  (66 

Penn.  St.  440) 957 

Young  V.  Cra«  ford  (23  Mo.  App.  432)  818 

w.  Dearborn  (27  N.  H.  3i4) 869,  871 

V.  Hartford  F.  Ins.  Co.  (45  Iowa, 

377) 931 

V.  Hughes  (32  N.  J.  Eq.  372) 466 

V.  N.  Y.  &c.  R.  R.  (30  Barb.  229)...  667 

V.  Scott  (25  La.  Ann.  313) 994 

w.  Stevens  (48  N.  H.  133) 48 

Youngs  V.  Lee  (2  Kern.  551) 519 

Yourt  V.  Hopkins  (24  111.  329) 894 

Z 

Zelglerr.  Hughes  (55  lil.  288) 878 

Zerrahn  v.  Ditson  (117  Mass.  553) 598 

Zinckv.  Walker  (2  W.  Blk.  1154) 1033 

Zogbaum  v.  Parker  (55  N.  Y.  120) 869 

Zottman  v.  San  Francisco  (20  Cal.  96) 

112,  126 

Zum  V.  Noedel  (113  Penn.  St.  336) 1027 


ADDENDA. 


Areersln^er  v.  Hacaaughton  (114  N.  T. 

535) 992 

CSark  «.  Cumming  (77  Ga.  64) 985 

Cooke  V.  Eshelby  (12  App.  Cas.  271)  ...  986 
Dale  V.  Donaldson  Limiber  Co.  (48  Ark. 

138) 644 

Dulutb  Nat.  Bank  «.  Fire  Ins.  Co.  (85 

Tenn.  76) 198 

Emerson  v.  Patch  (123  Mass.  541) 697 

Fradley  v.  Hyland  (37  Fed.  Rep.  49) . . .  697 

GaUgher  v.  Jones  (129  U .  8.  193) 1009 

Gregory  v.  Wendell  (40  Mich.  432) »3« 

Hegenmyer  V.  liarks  (37  Minn.  6) 638 


Jordan  ▼.  Westerman  (62  Mich.  170). . .  888 

Laing  w.  Butler  (37  Hun.  144) 697 

Leuthold  v.  Fairchild  (85  Minn.  111). . .  671 

Louisv  ille  Bank  v.  Gray  (84  Ky.  665) ...  461 

McKay  v.  Williams  (35  N.  W.  Rep.  159),  467 

Milliken  w.  Hathaway  (19  N.  K  Rep.  16)  916 

Post  V.  Pearson  (108  U.  S.  418) 448 

Ross  w.  Griffln  (53  Mich.  5) 839 

Smith  t).  Binder  (75  111.492) 662 

State  V.  Torinus  (26  Mln  n.  1) 179 

Valette  v.  Tedens  (122  111.  607) 458 

Whitlocku  Hicks  (75  111.  460) 448 

Yazel  V.  Pahner  (88  111.  597) 828 


Number  of  Cases  Cited,  7013. 


THE  LAW  OF  AGENCY. 


THE  LAW  OF  AGENCY. 


BOOK  I. 

OF  THE  RELATION  IN  GENERAL;    HOW   CREATED 
AND  TERMINATED. 


CHAPTER    I. 


DEFINITIONS  AND  DIVISIONS. 


1. 

Agency  defined. 

§   d. 

How    Question  to   be  deter 

2. 

Relation   to   Master  and   Ser- 

mined. 

vant. 

10. 

Special  Forms  of  Agency, 

3. 

Other  Names  employed. 

11. 

Attorneys  at  Law. 

4. 

Actual  and  Ostensible  Agen- 

12. 

Auctioneers. 

cies. 

13. 

Brokers. 

6. 

Classes  of  Agents. 

14. 

Factors  and  Commission  Mor 

6. 

UDiversal,  General  and  Special 

chants. 

Agents. 

15. 

Officers  of  Ships. 

7. 

Uses  of  these  Distinctions. 

16. 

Partners. 

8. 

Difficulty  of  Determination. 

17. 

Bank  Officers. 

§  1.     Agency  defined.     Agency  is  a  legal  relation,  founded 
apon  the  express  or  implied  contract  of  the  parties,'  or  created 


>  "Agency  is  founded  upon  contract, 
either  express  or  implied,  by  which 
one  of  the  parties  confides  to  the 
other,  the  management  of  some  busi- 
ness to  be  transacted  in  his  name  or  on 
his  account,  and  by  which  the  other 
assumes  to  do  the  business  and  to 
render  an  account  of  it."  Kent  Com., 
II.,  p.  784.  "An  agent  is  a  person 
duly  authorized  to  act  on  the  behalf 


of  another,  or  one  whose  unauthorized 
act  has  been  duly  ratified."  E well's 
Evans'  Agency,  1.  "An  agent  is  one 
who  acts  for  and  in  the  stead  of 
another,  termed  the  principal,  either 
generally  or  in  some  particular  busi- 
ness or  thing,  and  either  after  his 
own  discretion  in  full  or  in  part,  oi 
under  a  specific  command."  Bishop, 
Contracts,  §  1027.     "  In  the  commoi. 


§2. 


THE   LAW    OF   AGENCY. 


[Book  L 


by  law,'  bj  virtue  of  which  one  party, — the  agent — is  em- 
ployed and  authorized  to  represent  and  act  for  the  other, — the 
principal — in  business  dealings  with  third  persons.  The  dis- 
tinguishing features  of  the  agent  are  his  representative  character 
and  his  derivative  authority.* 

§  2.  Belation  to  Master  and  Servant.  The  line  of  demarca- 
tion between  the  relation  of  principal  and  agent,  and  that  of 
master  and  servant  is  exceedingly  difficult  to  define.'  This  diffi- 
culty arises  largely  from  the  fact  that  the  two  relations  are  essen- 
tially similar.  Indeed,  there  is  much  reason  for  saying  that  the 
difference  between  them  is  one  of  degree  only,  and  not  of  kind. 
The  difficulty  is  increased  by  the  •  fact  that  the  same  person 
often  assumes  to  the  principal  many  of  the  characteristics  of 
both  servant  and  agent,  as  well  as  by  the  fact  that  most  of  the 
principles  which  govern  one  relation  apply  equally  to  the  other. 

The  tjLue  distinction  is  to  be  fqundjn  the  nature  of  thejonder- 

Agency 


language  of  life,  he,  who  being  com- 
petent and  suijuns,  to  do  any  act  for 
his  own  benefit,  or  on  his  own  ac- 
count, employs  another  person  to  do 
it,  is  called  the  principal,  constituent 
or  employer,  and  he  who  is  thus  em- 
ployed is  called  the  agent,  attorney, 
proxy  or  delegate  of  the  principal, 
constitueator  employer.  The  rela- 
tion thus  created  between  the  parties 
is     termed     an     agency.  Story, 

Agency,  §  3.  "  Agency  is  a  contract 
by  which  one  person,  with  greater  or 
less  discretionary  powers,  undertakes 
to  represent  another  in  certain  busi- 
ness relations."  Wharton,  Agency, 
§  1.  "  An  agent  is  one  who  repre- 
sents another,  called  the  principal,  in 
dealing  with  third  persons.  Such 
representation  is  called  agency." 
Code,  Cal.,§  2295;  Dakota,  Code, 
§  1337. 

I  Benjamin  v.  Dockham,  134  Mass. 
418.     See  post,  §  82. 

s  Ewell's  Evans'  Agency,  1. 

8  "The  word  servant,"  says  Mr. 
Parsons,  "  seems  to  have  in  law  two 


meanings.  One  is  that  which  it  has 
in  common  use,  when  it  indicates  a 
person  hired  by  another  for  wages,  to 
work  for  him  as  he  may  direct.  We 
may  call  such  a  person  a  servant  in 
fact;  but  the  word  is  also  used  in 
many  cases  to  indicate  a  servant  by 
construction  of  law;  it  is  sometimes 
applied  to  any  person  employed  by 
another,  and  is  scarcely  to  be  dis- 
criminated in  these  instances  from 
the  word  agent.  This  looseness  in 
the  use  of  the  word  is  the  more  to  be 
regretted,  because  it  seems  to  have 
given  rise  to  some  legal  difficulties 
and  questions  which  might  have  been 
avoided."  I.  Parsons  on  Contracts, 
101. 

"  The  word  servant,"  says  Mr. 
Wood,  "  in  our  legal  nomenclature, 
has  a  broad  significance,  and  em- 
braces all  persons  of  whatever  rank 
or  position  who  are  in  the  employ  and 
subject  to  the  direction  or  control  of 
another  in  any  department  of  labor 
or  business."  Wood,  Mast.  &  Serv., 
§1- 


Chap.  1.] 


DEFINITIONS    AND    DIVISIONS. 


§2. 


properly  relates  to  transactions  of  business  with_third  ppiraonH, 
and  irapHes  naore  or  less  of  discretion  in_the  agent  as  to  the  time 
and  manner  of  hjs  performance.  Service,  on  the  other  hand,  haT 
reference  to  actions  upon  or  about  things.  It  deals  chieflj  with 
matters j)Tlnere  manud  "or  mechanical  execution,  in'which  Ihe 
servant  acts  undeflEe  direction  and  control  "of  tSe  master. '^ 
~It  riTaj"l5e~sa'T3,  perhaps,  "thaTThis  distinction  is  not  altogether 


'  Mr.  Wharton  in  his  excellent 
work  illustrates  the  distinction  thus: 
"  Agency,  or  mandate,  as  has  al- 
ready been  seen,  is  distinguishable 
from  Locaiio  conductio  operarum,  or 
the  relationship  of  master  and  ser- 
vant, by  the  fact  that  the  former  re- 
lates to  business  transactions,  in 
which  there  is  more  or  less  discre- 
tion allowed  to  the  employee,  while 
the  latter  relates  to  manual  services, 
which  the  employee  is,  as  a  rule, 
obliged  to  perform  under  specific 
orders.  Thus,  a  publisher  is  the 
mandatary  or  agent  of  the  author  in 
printing  a  book;  the  compositor  is 
the  locator  or  servant  of  the  printer  in 
setting  up  the  type.  So  a  trustee  man- 
aging an  estate  is  the  mandatary  or 
agent  of  his  principal  in  investing  the 
latter's  funds;  the  trustee's  clerk,  who 
keeps  his  account,  is  the  trustee's 
locator  or  servant.  So  a  contractor 
undertakes  to  build  a  house  for  a 
capitalist;  and  he  is  in  this  the  capi- 
talist's mandatary  or  agent;  the  ma- 
son or  the  bricklayer  who  directly 
lets  his  labor  to  the  capitalist,  is  the 
latter's  servant,  or  locator.  *  *  * 
I  employ,  for  instance,  an  engine- 
maker  to  build  for  me  a  particular 
engine,  he  having  exclusive  control 
over  the  use  of  his  time  when  work- 
ing for  me,  and  pursuing  his  own 
mode  of  working.  Or  I  engage  a 
printer  to  print  for  me  a  particular 
manuscript,  he  having  like  discretion 
as  to  time  and  mode.  Or  I  employ  a 
salesman,  he  having  discretion  as  to 
the  parties  to  whom  to  sell.     In  each 


of  these  cases  the  employment  is 
agency  or  mandate,  and  not  that  of 
master  and  servant,  or  locaiio  conduo- 
tio  operarum. "  Wharton  on  Agency, 
§§  19,  20. 

The  codes  distinguish  between  the 
two  relations  thus:  "An  agent  is 
one  who  represents  another  called  the 
principal  in  dealings  with  third  per- 
sons."    Cal.,  §  2295;  Dakota,  §  1337. 

"  A  servant  is  one  who  is  employed 
to  render  personal  service  to  his  em- 
ployer, otherwise  than  in  the  pursuit 
of  an  independent  calling,  and  who 
in  such  service  remains  entirely  under 
the  control  and  direction  of  the  lat- 
ter, who  is  called  his  master."  Cal., 
§2009;  Dakota,  §  1157. 

"A  preliminary  remark,"  says 
Judge  Cooley,"  "is  essential  regard- 
ing the  employment,  in  the  law,  of 
the  words  master  and  servant.  The 
common  understanding  of  the  words 
and  the  legal  understanding  is  not 
the  same;  the  latter  is  broader  and 
comprehends  some  cases  in  which 
the  parties  are  master  and  servant 
only  in  a  peculiar  sense,  and  for  cer- 
tain purposes;  perhaps  only  for  a 
single  purpose.  In  strictness,  a  ser- 
vant is  one  who,  for  a  valuable  con- 
sideration, engages  in  the  service  of 
another,  and  undertakes  to  observe 
his  directions  in  some  lawful  business. 
The  relation  is  purely  one  of  contract, 
and  the  contract  may  contemplate  or 
stipulate  for  any  services,  and  any 
conditions  of  service  not  absolutely 
unlawful."    Cooley  on  Torts,  531, 


§  3.  THE   LAW    OF   AGENCY.  [Book  I. 

satisfactory  in  actual  application,  inasmuch  as  it  is  difficult  to 
conceive  of  any  form  of  service,  except,  perhaps,  the  very  lowest, 
in  which  more  or  less  of  discretion  is  not  allowed  the  servant ; 
or  of  any  form  of  agenc3%  except,  perhaps,  a  few  forms  of  inde- 
pendent calling,  in  which  the  agent  is  not,  or  may  not  be, 
subject  to  the  specific  control  of  the  principal.  In  the  majority 
of  cases,  however,  the  distinction  is  sufficiently  clear  for  practi- 
cal purposes,  particularly  inasmuch  as  the  same  principles  of  law 
will,  ordinarily,  be  applied  to  either  relation. 

The  term  of  employment  and  the  manner  of  rendering  com- 
pensation will,  in  many  cases,  assist  in  the  determination  of  the 
question.  Agents,  as  a  rule,  are  employed  rather  as  particular 
occasions  may  require,  than  for  fixed  periods ;  and  receive  their 
compensation  rather  in  fees  and  commissions  than  in  fixed  wages 
or  salary.  But  these  considerations,  while  of  use  in  many  cases, 
are  not  in  every  instance  conclusive,  as  the  agent's  terra  of 
employment  may  often  be  a  definite  period,  and  his  fees  or  com- 
missions may  be  commuted  by  a  stated  compensation  or  salary. 
Thus  the  general  counsel  of  a  railroad  company,  employed  by 
the  year  at  a  fixed  salary  and  devoting  to  its  business  his  entire 
time,  is  not  on  that  account  ordinarily  considered  a  servant ;  nor 
is  the  day  laborer  who  works  upon  his  employer's  farm,  usually 
deemed  to  be  an  agent  because  his  service  is  rendered  at  irregu- 
lar intervals  and  at  varying  wages. 

In  the  view  that  he  who  executes  the  will,  and  is  subject  to 
the  control,  of  another,  is  a  servant,  agency  is  but  a  higher  form 
of  service;'  while  in  the  view  that  he  who  acts  for  and  repre- 
sents another,  is  an  agent,  service  is  but  a  lower  form  of  agency.* 

The  two  relations  being  thus  so  closely  allied,  the  considera- 
tion of  one  necessarily  implies  a  more  or  less  full  development 
of  the  other,  and  while  this  volume  is  devoted  to  the  higher 
form,  illustrations  will  be  freely  drawn  from  the  lower. 

§  3.  Other  Names  Employed.  The  names  principal  and 
agent  are  not  the  only  ones  used  to  designate  the  parties  to  this 

*  Blackstone  so  treats  it:     "  There  the  law  considers  as  servants  pro  tern- 

is  yet  a  fourth  species  of  servanls,"  pore  with  regard  to  such  of  their  acts 

Bays  he,   "  if  they  may  be  so  called,  as  affect  their  master's  or  employer's 

being  rather  in  a  superior,  a  minis-  property."     1  Com.,  427. 

terial,   capacity;  such    as  stewards,  » Mr,  Chitty  so  treats    it.     Chitty 

factors  and  bailiffs;  whom,  however,  on  Contracts,  209. 


Chap.  I.]  DEFINITIONS    AND    DIVISIONS.  §  6, 

relation.  The  agent  is  sometimes  called  an  attorney,  proxy, 
delegate  or  representative ;  and  the  person  represented,  though 
usually  called  the  principal,  is  sometimes  designated  an  em- 
ployer, constituent  or  chief.' 

The  contract  by  which  this  relation  is  created,  or  upon  which 
it  is  based,  is  called  a  contract  of  agency ;  the  right  of  the  agent 
BO  to  act  for  and  represent  the  principal  is  termed  his  authority 
or  power;  and  this  authority  or  power  when  conferred  formally 
by  an  instrument  in  writing  is  said  to  be  conferred  by  letter  of 
attorney  or,  more  frequently,  by  power  of  attorney." 

§  4.  Actual  and  Ostensible  Agencies.  An  agency  is  some- 
times said  to  be  either  actual  or  ostensible.'  An  agency  is  actual 
when  the  agent  is  really  employed  by  the  principal.*  An  agency 
is  ostensible  when  the  principal  intentionally,  or  bv  want  of 
ordinary  care,  causes  a  third  person  to  believe  another  to  be  his 
agent  who  is  not  really  employed  by  him.' 

§  5.  Classes  of  Agents.  Agents  are  divided  into  a  variety  of 
classes  based  upon  the  extent  or  nature  of  their  authority,  and 
the  character  and  obligation  of  their  undertakings.  The  most 
common  and  most  important  of  these  classifications  is  that  based 
upon  the  extent  of  their  authority  into  universal^  general^  and 
special  or  particular  agents.' 

Other  classifications,  based  (a)  upon  the  nature  of  the  agency 
into  mercantile  and  non-mercantile  agents ;  or  (5)  with  regard  to 
their  obligations  in  selling,  into  del-credere  agents,  and  agents  no^ 
del-credere;  or  {c)  in  regard  to  the  degree  of  skill  required  of 
them,  into  gratuitous  and  paid  agents  and  professional  and  non- 
professional  agents,  are  sometimes  made  for  convenience  of 
treatment.^ 

§  6.  Universal,  General  and  Special  Agents.  An  universal 
agent  is  one  authorized  to  transact  all  of  the  business  of  his 
principal  of  every  kind.  A  general  agent  is  an  agent  who  is 
empowered  to  transact  all  of  the  business  of  his  principal  of  a 

J  Story,  Agency,  §  3.  ■  Cal.    Code,   §  2300;  Dak.    Code, 

«  Evans'  Agency,  3.  1343. 

3  Cal.   Code,   §  2398;  Dak.    Code,  «  See  Ewell's   Evans'  Agency,    2; 

1340.  Story  on  Agency,  §  17;  Wharton  on 
<  Cal.    Code,    §  2299;  Dak.    Code,       Agency,  §  116. 

1341.  1  Ewell's  Evans'  Agency,  2. 


§  7.  THE    LAW    OF    AGENCY.  [Book  1. 

particular  kind  or  in  a  particular  place.  A  special  agent  is  one 
authorized  to  act  only  in  a  specific  transaction.^ 

A  principal  can  have  but  one  universal  agent.  He  may  have 
a  general  agent  in  each  line  of  his  business,  and  in  each  of  several 
places.  He  may  employ  as  many  special  agents  as  occasion  may 
require.  An  universal  agency  is  of  very  rare  occurrence,'  the 
great  majority  of  the  cases  being  those  which  involve  some  form 
of  general  or  special  agency. 

§  7.  Uses  of  these  Distinctions.  Distinctions  of  this  sort  are 
of  use  in  securing  a  logical  statement  of  the  law,  and  they  are 
also  of  importance  because  of  the  more  or  less  arbitrary  rules 
which  have  been  based  upon  them  {  but  unless  it  be  held  clearly 
in  mind  that  they  are  aids  only,  and  are  not  conclusive,  in  con- 
troversies between  the  principal  and  third  persons,  they  will 
often  prove  to  be  misleading  rather  than  useful.* 

§  8.  Diflaculty  of  Determination.  It  is  often  difficult  to  de- 
termine whether  a  given  agency  shall  be  deemed  general  or 
special,  and  cases  frequently  occur,  as  will  be  seen  hereafter,* 
where  the  agency  though  special  as  between  the  principal  and 
the  agent,  must  be  regarded  as  general  as  between  the  principal 
and  third  persons.  The  distinction  is  of  chief  importance  in 
determining  the  liability  of  the  agent  to  his  principal,  because, 
as  will  be  seen,'  the  agent  by  exceeding  the  limits  set  to  his 
authority  or  by  violating  express  instructions  may  make  himself 
liable  to  his  principal  for  the  loss  or  damage  occasioned  thereby. 

§  9.     How  Determined.     No  abstract  presumption  of  law  is 

I  Savings  Fund  Society  v.  Savings  (Tenn.)  502;  Savage  v.  Rix,  9  N.  H. 

Bank,  36  Penn.  St.  498,  78  Am.  Dec.  263. 

390;  Lobdell  ?).  Baker,  1  Mete.  (Mass.)  » Indeed     it     has    been    doubled 

193,  35  Am.  Dec.  358;  Wood  v.  Me-  whether    a    true    universal    agency 

Cain,  7  Ala.  800,  42  Am.  Dec.  612;  could  exist.     Story  on  Agency,  §  21. 

Manning  v.    Gasharie,  27  Ind.    399;  But  see   an  instance  of   what    was 

Oilman  v.  Robinson,  Ry.  «&Moo.  226;  called  such  in  Barr  v.  Schroeder,  32 

Kaye  v.  Brett,  5  Ex.  269;  Brady  v.  Cal.  609.     An  universal  agency  can 

Todd,  9  C.  B.  (N.  S.)591;  Whitehead  only  be  created  by  clear  and  unequiv- 

V.  Tuckett,  15  East,  400;  Anderson  v.  ocal  language  and  will  not  be  inferred 

Coonley,  21  Wend.  (N.  T.)  279;  Far-  from  any  general  expressions,  how. 

mers',   &c.    Bank  v.  Butchers',    &c.  ever  broad.     Gulick  v.  Grover,  33  N. 

Bank,  16  N.  Y.  125,  69  Am.  Dec.  678;  J.  L.  463,  97  Am.  Dec.  728. 

Tomlinson  v.  Collett,  3  Blackf.  (Ind  )  sSee  post  Book  II,  Chap.  I. 

436;     Walker    v.     Skipwith,     Meigs  ♦  See  post,  Book  II.  Chap.  1. 

•See  post.  Id. 


Chap.  L]  DEFINITIONS   AND   DIVISIONS.  §  12. 

made  in  reference  either  to  the  existence  or  to  the  nature  or  ex- 
tent of  an  agency.  These  are  facts  to  be  proved.  If  the  agency 
is  created  by  writing,  the  question  addresses  itself  to  the  court; 
but  if  it  be  by  parol,  it  is  for  the  jury  to  determine  both  its  ex- 
istence and  its  character  and  extent.*  Where,  however,  an  agency 
is  shown  to  exist,  the  presumption  would  be  that  the  agent's  au- 
thority was  general  rather  than  limited.* 

§  10.  Special  Forms  of  Agency.  Certain  forms  of  agency 
are  of  such  great  importance  and  of  such  universal  use  that 
around  each  of  them  has  grown  up  a  special  body  of  the  law 
that  requires  distinctive  consideration.  Of  this  class  are  attor- 
neys, auctioneers,  bank  officers,  brokers,  factors,  ship  masters, 
end  the  like,  some  of  which  will  be  specially  considered  here- 
after. 

§  11.  Attorneys  at  Law.  As  has  been  seen,  the  term  attor- 
ney is  often  used  in  the  law  of  agency  as  synonymous  with  the 
word  agent,  particularly  when  the  authority  is  conferred  by  a 
written  instrument.  An  agent  of  this  sort  is  often  further  dis- 
tinguished as  an  attorney  in  fact. 

The  term  has  also  its  well  understood  significance  of  attorney 
at  law,  by  which  is  meant,  in  modern  times,  one  whose  profes- 
sion it  is  to  give  advice  and  assistance  in  legal  matters,  and  to 
prosecute  and  defend  in  courts,  the  causes  of  those  who  may  em- 
ploy him  for  that  purpose.' 

§  12.  Auctioneers.  An  auctioneer  is  one  whose  business  it  is 
to  sell  or  dispose  of  property,  rights  or  privileges  at  public  com- 
petitive sale,  to  the  person  or  persons  offering  or  accepting  the 
terms  most  favorable  to  the  owner.*    He  differs  from  a  broker  in 

« Dickinson  County  v.  Mississippi  '  Trainor  v.  Morison,  78  Me.  160,  57 

Valley  Ins.  Co.  41  Iowa,  286;  Savings  Am.  Rep.  790;  Methuen  Co.  v.  Hayes, 

Fund  Society  v.   Savings  Bank,  36  83  Me.  169. 

Penn.  St.  498,  78  Am.  Dec.  390;  Mor-  »  Weeks  on  Attorneys  at  Law,  g  31. 

rison  V.  Whiteside,  17  Md.  452,   79  See  the  subject  treated  at  length  in 

Am.  Dec.  661 ;  Beringer  v.  Meaner,  the  chapter  on  Attorneys  at  Law. 

85  Penn.  St.  233;  Bean*.  Howe,  85  <  Mr.  Bishop  defines  an  auctioneer  as 

Penn.  St.    260;  Dale  v.    Pierce,    85  "one  who  dealing    with    assembled 

Penn.  St.  474.     "The  existence  of  an  persons  competing,  sells  property  to 

agent's  authority,  is  purely  a  question  those  who  make  or  accept  the  offers 

of  fact.     What  he  may  do  by  virtue  most  favorable  to  the   owner."    As 

of  it  is  a  question  of  law."    Glenn  v.  will  be  observed,  the  definition  in  the 

Savage,  —  Ore.  — ,  13  Pac.  Rep.  442.  text  is  based  largely  upon  this.     Of 


§13. 


THE    LAW    OF    AGENCY. 


Book  I.] 


several  particulars,  chief  among  which  are  that  he  is  employed  to 
sell  or  dispose  of,  onl^',  and  that  his  sales  are  always  public.  He 
18  primarily  deemed  to  be  the  agent  of  the  seller,  but  in  the 
performance  of  his  functions  he  becomes  the  agent  of  the  buyer 
also,  as  when  he  accepts  the  buyer's  bid  and  enters  his  name 
upon  the  memorandum  of  the  sale.' 

§  13.  Brokers.  A  broker  is  one  whose  occupation  it  is  to 
bring  parties  together  to  bargain,  or  to  bargain  for  them,  in 
matters  of  trade,  commerce  or  navigation.*  He  is  essentially  a 
middle-man  or  go-between.  He  differs  from  an  auctioneer  in 
that  he  has  no  special  property  in  the  goods  which  he  may  be 
authorized  to  sell ;  that  he  must  sell  tliem  in  the  name  of  the 


this  definition  Mr.  Bishop  says  :  "I 
have  not  observed  in  the  books  any 
satisfactory  definition  of  an  auction- 
eer. Even  Story  puts  what  seems  to 
have  been  meant  for  a  definition, 
very  loosely,  thus  :  'An  auctioneer  is 
a  person  •who  is  authorized  to  sell 
goods  or  merchandise  at  public  auc- 
tion or  sale  for  a  recompense  or  (as  it 
is  commonly  called)  a  commission.' 
Story,  Agency,  §  27.  My  definition  is 
silent  as  to  his  remuneration,  or  the 
manner  of  it:  in  which  respect  Story's 
is  to  be  preferred  if  this  is  really  an 
element  In  the  question.  But  though 
ordinarily,  an  auctioneer,  like  any 
other  agent,  is  paid,  he  is  not  the  less 
such  if  he  does  the  work  gratuitously. 
State  «.  Rucker,  24  Mo.  557.  Nor 
does  he  cease  to  be  an  auctioneer 
though  he  sells  his  own  property. 
Bent  V.  Cobb,  9  Gray  (Mass.)  397. 
Therefore  the  definition  may  well  be 
silent  as  to  the  matter  of  agency. 
Nor  is  he  less  an  auctioneer  though. 
Belling  his  own  property,  he  conducts 
the  competition  by  some  method  other 
than  outcry.  Rex  v.  Taylor,  McClel. 
863;  13  Price,  636.  Story's  definition 
is  defective  in  not  comprehending 
the  aiictioneer  of  real  estate.  Em- 
merson  v.  Heelis,  2  Taunt.  38,  47; 
Dobell  V.  Hutchinson,  3  A.  «fe  E.  355. 
It  may  be  a  question  whether  mine  is 


not  defective  in  not  extending  to  such 
a  case  as  the  letting  out  of  the  board 
of  paupers  to  the  lowest  bidder,  and 
various  other  cases  of  procuring  a 
contract  other  than  a  purchase  of 
property."  Bishop  on  Contracts, 
New  Ed.  §  1131,  and  note. 

"An  auctioneer,"  says  Mr,  Whar- 
ton, "is  a  person  employed  to  sell  at 
public  sale,  after  public  notice,  prop- 
erty to  the  highest  bidder."  Agency, 
§638, 

'  See  chapter  on  Auctioneers,  where 
the  subject  is  separately  treated. 

3  "  A  broker  is  one,  who,  as  middle- 
man, brings  persons  together  to  bar- 
gain or  bargains  for  them,  in  the  pri- 
vate purchase  or  sale  of  property  of 
of  any  sort,  not  ordinarily  in  his  pos- 
session."   Bishop,  Contracts  §  1135. 

"A  broker  is  a  specialist  employed 
as  a  middleman  to  negotiate  between 
the  parties,  a  sale  or  otlier  business 
contract."  Wharton  on  Agency, 
§695, 

Judse  Story  says  that  a  broker  "is 
an  agent  employed  to  make  bargains 
and  contracts  between  other  persons, 
in  matters  of  trade,  commerce  or 
navigation,  for  a  compensation,  com- 
monly called  brokerage."  Agency, 
§  28.  This  definition  is  the  one  given 
by  Evans'  Agency,  4. 


Chap.  I.]  DEFINITIONS    AND   DIVISIONS.  §  14. 

principal,  and  that  his  sales  are  private  and  not  at  auction.  He 
ordinarily  receives  a  compensation  or  commission,  usually  called 
brokerage,  but  he  may  also  serve  gratuitously.  He  differs  from 
a  factor,  also,  in  that  he  does  not  ordinarily  have  the  possession 
of  the  property  which  he  may  be  employed  to  sell  and  that  his 
contracts  are  always  made  in  the  name  of  his  employer.  He  is 
primarily  the  agent  of  the  person  who  first  employs  him,  and  he 
cannot,  without  the  full  and  free  consent  of  both,  be,  throughout 
the  transaction,  the  agent  of  both  parties.  Without  such  consent, 
he  can  only  act  as  the  agent  of  the  other  party  when  the  terms 
of  the  contract  are  fully  agreed  upon  between  the  principals  and 
he  is  instructed  to  close  it  up. 

Brokers  are  of  many  kinds,  according  to  the  particular  class  of 
transactions  in  which  they  engage.  Thus  there  are  money-bro- 
kers, stock-brokers,  ship-brokers,  bill-brokers,  insurance-brokers, 
real  estate-brokers,  pawnbrokers,  and  general  merchandise-bro- 
kers.* 

§  14.  Factors  or  Commission  Merchants.  These  terms,  as  is 
said  by  a  learned  writer,'  are  nearly  or  quite  synonymous.  The 
former  is  the  more  common  in  the  language  of  the  law,  the  latter 
in  the  language  of  commerce.  A  factor  is  one  whose  business  it 
is  to  receive  and  sell  goods  for  a  commission.  He  differs  from  a 
broker  in  that  he  is  entrusted  with  the  possession  of  the  goods  to 
be  sold  and  usually  sells  in  his  own  name.'     He  is  invested  by 

'  See  this  subject  fully  discussed  in  in  a  different  situation,— he  is  not 

the  chapter  on  Brokers.  trusted   with  the  possession  of    the 

"Bishop,    Contracts,    §1138.      See  goods  and  he  ought  not  to  sell  in  his 

also,  Perkins  tJ.  State,  50  Ala.  154.  own  name."     And  in  the  same  case  it 

8  "The  distinction  between  a  broker  is  said  by  Holroyd,   J.,   that  a  factor 

and  a  factor,"  said  Chief  Justice  Ab-  "is  a  person  to  whom  goods  are  sent 

bott,    "is  not    merely  nominal,   for  or  consigned,  and  he  has  not  only 

they  differ  in  many  important  partic-  possession,  but  in  consequence  of  ita 

ulars.     A  factor  is  a  person  to  whom  being  usual  to  advance  money  upon 

goods  are  consigned  for  sale  by  a  mer-  them,  he  has  also  a  special   property 

chant  residing  abroad,  or  at  a  distance  in   them,   and  a  general   lien    upon 

from  the  place  of  sale,  and  he  usually  them.     When,  therefore,  he  sells  in 

sells  in   his  own  name  without  dis-  his  own  name  it  is  within  the  scope 

closing  that  of   his  principal.     The  of  his  authority,  and  it  may  be  right 

latter,  therefore,  with  full  knowledge  therefore  that   the  principal   should 

of  these  circumstances,    trusts  him  be  bound   by  the    consequences    of 

with   the    actual    possession  of  the  such  sale— amongst  which  the  right 

goods,  and  gives  him  authority  to  sell  of  setting  off  a  debt  due  from    the 

in  his  own  name.    But  the  broker  is  factor    is    one.     But    the  case  of  a 


§15. 


THE    LAW    OF    AGENCY.  [Book  I. 


law  with  a  special  property  in  the  goods  to  be  sold  and  a  general 
lien  upon  them,  for  his  advances;  and  unless  there  be  an  agree- 
ment or  usage  to  the  contrary,  he  may  sell  upon  a  reasonable 

credit.' 

Del  Credere  Commission.  Not  unfrequently,  in  consideration 
of  an  increased  commission,  the  factor  guarantees  the  payment 
of  debts  arising  through  his  agency,  in  which  case  he  is  said  to 
sell  upon  a  del  credere  commission.* 

Su])eroargo.  A  factor  is  called  a  supercargo  when  author- 
ized to  sell  a  cargo  which  he  accompanies  on  the  voyage.' 

§  15.  Officers  of  Ships.  Certain  officers  of  ships,  as  the 
master  and  the  ship's  husband,  present  well  recognized  forms 
of  agency,  but  the  consideration  of  their  rights,  authority  and 
duties  belongs  rather  to  a  treatise  upon  shipping  or  maritime  law 
than  to  one  upon  the  subject  of  agency  generally.* 

§  16.  Partners.  The  transaction  of  the  business  of  an  ordi- 
nary partnership  furnishes  frequent  opportunity  for  the  applica- 
tion of  the  law  of  agency,  but  this  subject  is  also  deemed  to  be 
beyond  the  scope  of  the  present  treatise. 

§  17.  Bank  Officers.  Certain  officers  of  banks,  and  particu- 
larly the  cashier,  also  present  familiar  forms  of  agency,  which 
will  receive  attention  herein. 

broker  is  difEerent;  he  has  not,  the  ployed  by  commercial  companies  or 

possession  of  the  goods  and  so  the  private  merchants,  to  take  charge  of 

vendee  cannot  be  deceived  by  that  the  cargoes  they  export  to  foreign 

circumstance;  and  besides,   the  em-  countries,  to  sell  them  there  to  the 

ploying  of  a  person  to  sell  goods  as  a  best    advantage,     and    to    purchase 

broker  does  not  authorize  him  to  sell  proper    commodities    to    relade  the 

in  his  own  name.     If,  therefore,  he  ships  on  their  return  home.     For  this 

sells  in  his  own  name,  he  acts  beyond  reason  supercargoes  generally  go  out 

the  scope  of  his   authority  and  his  and  return  home  with  the  ships  on 

principal  is  not  bound."     Baring  e.  board  of  which  they  were  embarked, 

Corrie,  2  B.  «&  Aid.  143.  and  therein  differ  from  factors,  who 

>  See  the  subject  discussed  in  the  reside  abroad  at  the  settlements  of  the 

chapter  on  Factors.  public    companies    for    whom  they 

»  See  the  question  of  his  duties  and  act."    1  Beawes  Lex  Merc,  47  (6th 

liabilities  discussed  in  the  chapter  on  ed.) 
Factors,  post.  ^See    Parsons  on    Maritime  Law, 

•  Ewell's  Evans  on  Agency,  3.  Abbott  on  Shipping. 

"Supercargoes     are    persons    em- 

10 


Chap.  II.] 


FOR    WHAT   PURPOSES   CREATED. 


§19. 


CHAPTER    II. 


FOR  WHAT  PURPOSES  AN  AGENCY  MAY  BE  CREATED. 


§  18.  General  Rule— For  any  lawful 
Purpose. 

19.  Dlegal  and  Personal  Acts  can- 

not be  delegated. 

I.    UNDERTAKINGS  CONTRARY  TO  LAW 
OR  OPPOSED  TO  PUBLIC  POLICY. 

20.  In  General— Void. 

21.  The   Element    of    Contingent 

Compensation. 

22.  Lobbying  Agents. 

23.  Same  Subject — Legitimate  Ser- 

vices. 

24.  Procuring  Contracts  from  Gov- 

ernment and  Heads  of  Depart- 
ments. 

25.  Same  Subject — Illustrations. 

26.  Services  in  prosecuting  Claims. 

27.  Compromise  of  Crime. 

28.  Services  in  procuring  Appoint- 

ments to  Office. 

29.  Same  Rule    applies  to  private 

Offices  and  Employments. 


§  30.  Services  in  improperly  influeno- 
ing  Elections. 
81.  Same  Subject — What  Services 
legitimate. 

32.  Services  in  procuring  Pardons. 

33.  How  when  Conviction  illegal. 
84  Services  in  procuring  or  sup- 
pressing Evidence. 

85.  Unlawful  Dealings    in  Stocks 

and  Merchandise. 

86.  Marriage  Brokerage  Contracts 

void. 

87.  Corruption  of  Agents. 

88.  Other    Cases    involving   same 

Principles. 

39.  Agent  must  participate  in  un- 

lawful Purpose. 

40.  Whole  Contract  void  when  en- 

tire. 

II.    POWERS  OF  A  PERSONAL  NATURE. 

41.  Personal  Duty,  Trust  or  Confi- 

dence cannot  be  delegated. 


§18.  General  Rule  —  For  any  Lawful  Purpose.  It  may  be 
stated  as  a  general  rule  that  an  agency  may  be  created  for  the 
transaction  of  any  lawful  business,  and  that  whatever  a  person 
might  lawfully  do,  if  acting  in  his  own  riglit  and  in  his  own 
behalf,  he  may  lawfully  delegate  to  an  agent.' 

§  19.  Illegal  and  personal  Acts  cannot  be  delegated.  In 
dealing  with  this  general  rule,  two  principles  are  important  to  be 
considered.     One  of  them  results  as  the  direct  and  natural  effect 


*  Story  on  Agency,  §6;  Com.  Dig. 
"Attorney,"  C.  I.  "An  agent  may 
be  authorized  to  do  any  acts  which 
his  principal  might  do,  except  those 


to  which  the  latter  is  bound  to  give 
his  personal  attention."  Cal.  Code, 
§2304;  Dak.  Code,  §1343. 


11 


§  20.  THE    LAW    OF   AGENCY.  [Book  I. 

of  the  rule  itself ;  the  other  is  an  exception  to  it.  These  are,  1. 
That  authority  cannot  be  delegated  to  do  an  act  which  is  illegal, 
immoral  or  opposed  to  public  policy  ;  and  2.  That  the  perform- 
ance of  an  act  which  is  personal  in  itB  nature  cannot  de  delegated. 


UNDERTAKINGS  CONTBAKT   TO   LAW,  OK   OPPOSED   TO   PUBLIC   POLICY. 

§  20.  In  general,  void.  The  law  will  not  sanction  the  crea- 
tion, or  enforce  the  performance,  of  an  agency  which  has  for  its 
object,  or  which  naturally  and  directly  tends  to  promote,  the 
commission  of  an  act  which  is  either  illegal  or  immoral  in  itself, 
or  which  is  opposed  to  the  public  policy.  As  to  the  former  class, 
the  rule  and  its  application  are  obvious  and  certain.  Thus  no 
one  can  lawfully  empower  another  to  violate  the  rules  of  law  or 
of  morals,  as  to  commit  an  assault  upon,  or  to  defraud  a  third 
person,  or  to  corrupt  or  seduce  his  servant.  As  to  the  latter 
class,  while  the  scope  of  the  application  of  the  rule  is  not  so 
readily  discerned,  the  rule  itself  is  enforced  with  no  less  certainty 
and  vigor.  In  considering  undertakings  of  this  nature,  the  law 
looks  with  an  exceedingly  jealous  eye.  It  judges  of  their  val- 
idity rather  by  their  general  nature  and  their  natural  and  probable 
tendencies,  than  by  the  question  whether,  in  any  particular  case, 
wrong  was  actually  done  or  intended.  It  seeks  to  prevent,  not 
only  the  evil  itself,  but  the  very  temptation  to  evil.  It  concerns 
itself  rather  with  the  public  weal  than  with  individual  interest. 
It  refuses,  ordinarily,  to  assist  either  party,  but  leaves  them  both 
in  the  situation  in  which  their  own  cupidity  has  placed  them.' 

>  Institutes  Justinian,  Liber  3,  Title  No  one  can  be  permitted  to  found 

19,  Par.  24;   Gray  v.  Hook,  4  N.  Y.  rights    upon  liis  own  wrong,    even 

449;    Marshall  v.  Baltimore  &  Ohio  against  another  also  in  the  wrong.    A 

R.  R.  Co.,  16  How.  (U.  S.)  314;  and  promise  made  to  one  in  consideration 

see  generally  the  cases  cited  in  the  of  doing  an  unlawful  act,  as  to  com- 

foUowing  sections.  mit  an  assault  or  to  practice  a  fraud 

"  Contracts,"     says    Devenb,    J.,  upon  a  third  person,   is  void  in  law, 

"which  are  opposed  to  open,  upright  and  the  law  will  not  only  avoid  con- 

and  fair  dealing  are  opposed  to  pub-  tracts  the  avowed  purpose  or  express 

lie  policy.     A  contract  by  which  one  object  of  which  l.s  to  do  an  unlawful 

is  placed  under  a  direct  inducement  act,  but  those  made  with  a  view  to 

to  violate  the  confidence  reposed  in  place,  or  the  necessary  effect  of  which 

him  by  another  is  of  this  character.  is  to  place,  a  person  under  wrong  in- 

12 


Chap.  II.]  FOR    WHAT    PURPOSES    CREATED.  §  22. 

These  principles  which  apply  here  are  the  well  established  and 
familiar  ones  which  regulate  the  formation  and  performance  of 
contracts  generally.  Their  application  to  the  law  of  agency  is 
frequent,  and  some  illustrations  will  be  given  in  the  following 
sections. 

§  21,  The  Element  of  contingent  Compensation.  It  will  be 
noticed  in  many  of  the  illustrations  given  that  particular  stress 
is  laid  upon  the  fact  that  the  undertaking  was  for  a  compensation 
contingent  upon  success.  This  element  is  an  important  but  not 
a  conclusive  one.  Where  it  exists,  the  temptation  to  employ  im- 
proper means  is  certainly  increased,  and  of  this  fact  the  courts 
have  well  taken  notice.  But  contracts  of  this  nature  are  not 
robbed  of  their  viciousness  because  the  agent  is  certain  of  his 
compensation  ;  nor  is  his  undertaking  any  more  righteous  because 
it  is  surely  to  be  paid  for.  So,  on  the  other  hand,  legitimate 
services  are  not  rendered  unlawful  because  the  agent  is  to  be 
rewarded  only  in  case  of  his  success.  The  nature  of  the  under- 
taking and  its  natural,  proximate  and  probable  results  are  the 
criterion.* 

§  22.  Lobbying  Agents.  It  is  of  the  utmost  importance  to 
the  preservation  and  protection  of  the  State  that  the  sources  of 
its  legislative  enactments  be  kept  uncontaminated  by  any  im- 
proper or  debasing  influence.  Considerations  of  the  public  good, 
motives  of  high  policy,  arguments  based  solely  upon  the  true 
interests  of  the  people,  are  the  only  elements  which  can  prop- 
erly enter  into  the  question  of  the  right  discharge  of  the  im- 
portant functions  of  the  legislator.  Personal  solicitation,  private 
intrigue,  secret  persuasion,  arguments  based  upon  the  legislator's 
duty  or  obligations  to  individuals  or  societies  or  parties,  to  say 
nothing  of  ofiers  of  personal  or  pecuniary  profit  or  advancement, 
are  utterly  hostile  to  the  public  good.     Courts  of  law  and  equity 

fluences,  and  offer  him  a  temptation  necessarily      injurious      tendency." 

whicli    may    injuriously    affect    the  Rice  v.  Wood,  113  Mass.  133,  18  Am. 

rights  of    third  persons.     Nor  is   it  Rep.  459. 

necessary  to  show  that  injury  to  third  The  general  subject  of  the  doctrine 
persons  has  actually  resulted  from  of  public  policy  in  the  law  of  con- 
such  a  contract,  for  in  many  cases  tracts  is  ably  discussed  in  the  excel- 
where  it  had  occurred  it  would  be  lent  work  of  Mr.  Greenhood. 
impossible  to  be  proved.  The  con-  *  See  cases  cited  in  following  sec- 
tract  is  avoided  on  account  of   its  tions. 

13 


§22. 


THE    LAW    OF    AGENCY. 


[Book  I. 


have  not  been  slow  to  recognize  this  evil,  or  to  declare  that  all 
attempts  to  influence  the  course  of  legislation  by  secret  or  sinister 
means,  or  even  by  using  personal  influence,  solicitation  or  per- 
suasion with  the  members  of  the  legislative  body,  are  inconsistent 
with  sound  public  policy. 

Any  contract,  therefore,  for  services  to  be  performed  in  pro- 
curing or  attempting  to  procure  the  passage  or  defeat  of  any 
public  or  private  act  by  the  use  of  any  improper  means  or  the 
exercise  of  undue  influence,  or  by  using  personal  solicitation, 
influence  or  persuasion  with  the  members  is  void  ;'  and  any  agree- 


*  Clippinger  v.  Hepbaugh,  5  Watts 
&  Berg.  (Penn.)  315,  40  Am.  Dec.  519; 
Marshall  v.  Baltimore  &  Ohio  R.  R. 
Co.  16  How.  (U.  S.)  314;  Tool  Co.  v. 
Norris,  2  Wall.  (U.  S.)  45;  Trist  p. 
Child,  21  Wall.  (U.  S.)  441;  Weed  v. 
Black,  2  McArthur  (D.  C.)  268,  29 
Am.  Rep.  618;  McBratney  v.  Chan- 
dler, 22  Kan.  692;  Kansas  Pacific  Ry. 
Co.  V.  McCoy,  8  Kan.  538;  Harris  v. 
Simonson,  28  Hun,  (N.  Y.)318;  Mills 
e.  Mills,  40  N.  Y.  543;  Frost  v.  Bel- 
mont, 6  Allen,  (Mass.)  152;  Powers  v. 
Skinner,  34  Vt.  274,  80  Am.  Dec.  677; 
Bryan  «.  Reynolds,  5  Wis.  200,  68 
Am.  Dec.  55;  Elkhart  County  Lodge 
V.  Crary,  98  Ind.  238,  49  Am.  Rep. 
746;  Oscanyan  v.  Arras  Co.  103  U.  8. 
261. 

In  Trist  v.  Child,  supra.  Mr.  Jus- 
tice Swayne  well  says,  "The  founda- 
tion of  a  republic  is  the  virtue  of  its 
citizens.  They  are  at  once  sover- 
eigns and  subjects.  As  the  founda- 
tion is  undermined,  the  structure  is 
weakened.  When  it  is  destroyed,  the 
fabric  must  fall.  Such  is  the  voice 
of  universal  hi.story.  The  theory  of 
our  government  is,  that  all  public 
stations  are  trusts,  and  that  those 
clothed  with  them  are  to  be  animated 
in  the  discharge  of  their  duties  solely 
by  considerations  of  right,  justice, 
and  the  public  good.  They  are  never 
to  descend  to  a  lower  plane.  But 
there    is    a  correlative  duty  resting 


upon  the  citizen.  In  his  intercourse 
with  those  in  authority,  whether 
executive  or  legislative,  touching  the 
performance  of  their  functions,  he  is 
bound  to  exhibit  truth,  frankness,  and 
integrity.  Any  departure  from  the 
line  of  rectitude  in  such  cases,  is  not 
only  bad  in  morals,  but  involves  a 
public  wrong.  No  people  can  have 
any  higher  public  interest,  except  the 
preservation  of  their  liberties,  than 
integrity  in  the  administration  of 
their  government  in  all  its  depart- 
ments. 

"The  agreement  in  the  present  case 
was  for  the  sale  of  the  influence  and 
exertions  of  the  lobby  agent  to  bring 
about  the  passage  of  a  law  for  the 
payment  of  a  private  claim,  without 
reference  to  its  merits,  by  means 
which,  if  not  corrupt,  were  illegiti- 
mate, and  considered  in  connection 
with  the  pecuniary  interests  of  the 
agent  at  stake,  contrary  to  the  plain- 
est principles  of  public  policy.  No 
one  has  a  right,  in  such  circum- 
stances, to  put  himself  in  a  position 
of  temptation  to  do  what  is  regarded 
as  so  ptrnicious  in  its  character.  The 
law  forbids  the  inchoate  step,  and 
puts  the  seal  of  its  reprobation  upon 
the  undertaking. 

"If  any  of  the  great  corporations 
of  the  country  were  to  hire  adven- 
turers who  make  market  of  them- 
selves in  this  way,  to  procure  the 


14 


Chap.  II.] 


FOB   WHAT   PURPOSES    CKEATED. 


§22. 


ment  for  the  payment  of  a  fee  for  sncli  services  is  likewise  void,* 
particularly  where  it  is  made  contingent  upon  success,  because  in 
such  a  case  there  would  be  a  stronger  incentive  to  the  exercise 
of  personal  and  sinister  means  to  effect  the  object. 

And  so  jealously  do  the  courts  scrutinize  such  contracts  that 
they  condemn  the  very  appearance  of  evil,  and  it  matters  not 
that  in  the  particular  case  nothing  improper  was  done  or  was 
expected  to  be  done.  It  is  enough  that  the  employment  tends 
directly  to  such  results.' 


passage  of  a  general  law  with  a  view 
to  the  promotion  of  their  private 
interests,  the  moral  sense  of  every 
right-minded  man  would  instinctively 
denounce  the  employer  and  employed 
as  steeped  in  corruption,  and  the  em- 
ployment as  infamous. 

"  If  the  instances  were  numerous, 
open,  and  tolerated,  they  would  be 
regarded  as  measuring  the  decay  of 
the  public  morals  and  the  degen- 
eracy of  the  times.  No  prophetic 
spirit  would  be  needed  to  foretell  the 
consequences  near  at  hand.  The 
same  thing  in  lesser  legislation,  if  not 
so  prolific  of  alarming  evils,  is  not 
less  vicious  in  itself,  nor  less  to  be 
condemned.  The  vital  principle  of 
both  is  the  same.  The  evils  of  the 
latter  are  of  sufiicient  magnitude  to 
invite  the  most  serious  consideration. 
The  prohibition  of  the  law  rests  upon 
a  solid  foundation.  A  private  bill  is 
apt  to  attract  little  attention.  It  in- 
volves no  great  public  interest,  and 
usually  fails  to  excite  much  discus- 
sion. Not  unfrequently  the  facts  are 
whispered  to  those  whose  duty  it  is 
to  investigate,  vouched  for  by  them, 
and  the  passage  of  the  measure  is  thus 
secured.  If  the  agent  is  truthful, 
and  conceals  nothing,  all  is  well. 
If  he  uses  nefarious  means  with 
success,  the  spring-head  and  the 
stream  of  legislation  are  pol- 
luted. To  legalize  the  traffic  of 
such  service,  would  open  a  door  at 


which  fraud  and  falsehood  would  not 
fail  to  enter  and  make  themselves  felt 
at  every  accessible  point.  It  would 
invite  their  presence  and  offer  them  a 
premium.  If  the  tempted  agent  be 
corrupt  himself,  and  disposed  to  cor- 
rupt others,  the  transition  requires 
but  a  single  step.  He  has  the  means 
in  his  hands,  with  every  facility  and 
a  strong  incentive  to  use  them.  The 
widespread  suspicion  which  prevails, 
and  charges  openly  made  and  hardly 
denied,  lead  to  the  conclusion  that 
such  events  are  not  of  rare  occurrence. 
Where  the  avarice  of  the  agent  is  in- 
flamed by  the  hope  of  a  reward  con- 
tingent upon  success,  and  to  be  grad- 
uated by  a  percentage  upon  the 
amount  appropriated,  the  danger  of 
tampering  in  its  worst  form  is  greatly 
increased. 

"It  is  by  reason  of  these  things  that 
the  law  is  as  it  is  upon  the  subject. 
It  will  not  allow  either  party  to  be  led 
into  temptation  where  the  thing  to  be 
guarded  against  is  so  deleterious  to 
private  morals  and  so  injurious  to  the 
public  welfare.  In  expressing  these 
views,  we  follow  the  lead  of  reason 
and  authority." 

'  Clippinger  v.  Hepbaugh,  5  Watts 
&  Serg.  (Penn.)  315.  40  Am.  Dec.  519; 
Wood  V.  McCann.  6  Dana  (Ky.)  3G6; 
Gil  «.  Williams,  12  La.  Ann.  219,  68 
Am.  Dec.  7G7. 

'Clippinger  v.  Hepbaugh,  supra; 
Mills    V.    Mills,     supra;    McKee    v. 


15 


f|  23.  THE    LAW    OF    AGENOr.  [Book  I. 

§  23.  Same  Subject— Legitimate  Services.  It  is  not  to  be 
understood,  however,  that  every  contract  for  services  to  be 
rendered  in  endeavoring  to  procure  or  defeat  legislation  is 
unlawful.  Services  may  be  rendered,  public  in  their  nature  and 
intended  to  reach  the  understandings  of  tlie  legislators  rather 
than  to  exercise  any  personal  influence  over  them,  which  are  per- 
fectly legitimate. 

Thus  a  person  may  lawfully  be  employed  to  draft  a  petition, 
attend  the  taking  of  testimony,  collect  facts,  prepare  arguments 
and  to  submit  them  publicly,  either  before  a  committee  of  the 
legislature  or  the  legislature  itself,  if  permitted  to  do  so, 
"  because,"  as  it  is  said  by  a  learned  judge,  "a  public  discussion 
could  not  tend  to  deceive  or  corrupt  the  legislature,  while  per- 
sonal solicitation  and  influence  might  produce  that  result.'" 

§  24.  Procuring  Contracts  from  Government  or  Heads  of 
Departments.  Employments  of  this  nature  rest  upon  the  same 
principles  as  those  considered  in  the  preceding  section.  It  is 
legitimate  and  proper  to  lay  before  the  ofiicer  having  the  matter 
in  charge,  facts,  information  and  arguments  intended  for  the 
public  good  and  calculated  to  enlighten  the  understanding  and 
secure  wise  and  intelligent  action.  Parties  desiring  to  furnish  to 
the  government  its  necessary  supplies,  or  to  undertake  the  per- 
formance of  its  public  works,  may  lawfully  emplo}'  an  agent  to 
present  their  bids  or  offers ;  to  call  attention  to  their  facilities  for 
the  proper  performance  of  their  undertakings,  and  to  make,  in 

Cheney,    53    Howard    Pr.    (N.  T.)  to    improper  tampering  with  mem- 

144;  Gil  ».  Williums,  8Mpra;  Powers «.  bers,  and  the  use  of  an  extraneous 

Skinner,  supra;  Atcheson  v.  Mallon,  secret  influence  over  an    important 

43  N.  Y.  147;  8  Am.  Rep.  678;Spence  branch  of  the  government.     It  may 

p.  Harvey,   22   Cal.   337;  Thomas  v.  not  corrupt  all ;  but  if  it  corrupts,  or 

Caulkett,  67  Mich.  392,  58  Am.  Rep.  tends    to    corrupt    some,     or    if    it 

369.  deceives  or  tends  to  deceive  or  mis- 

"It  matters  not,"  says  Rogers  J.  lead  some,  that  is  sufficient  to  stamp 

in  Clippinger    v.   Hepbaugh,   supra,  its  ciiaracter  with  the  seal  of  repro- 

"that  nothing  improper  was  done  or  bation  before  a  judicial  tribunal." 

was  expected  to  be  done  by  the  plain-  '  Bryan  «.  Reynolds,  5  Wis.  200;  68 

till.     It  is  enough  that  such  is  the  Am.  Dec.  55;  Trist  v.  Child,  21  Wall, 

tendency  of  the  contract,   that   it  is  (U.  S.)441;  Sedgwick  •.  Stanton,  14 

contrary  to  sound  morality  and  pub-  N.  Y.  289;  Wildey  v.  Collier,  7  Md. 

lie  policy,  leading  necessarily,  in  the  273;  Miles  v.  Thome,  38  Cal.  335,  99 

hands  of  designing  and  corrupt  men,  Am.  Dec.  884. 

16 


Chap.  IL] 


FOE   WHAT   PURPOSES   CREATED. 


§24. 


their  behalf,  such  public  and  open  arguments  in  favor  of  their 
propositions  as  they  may  be  afforded  opportunity.* 


•Trist  V.  Child,  21  Wall.  (U.  S.) 
441;  Stanton  v.  Embrey,  93  U.  S.  548; 
Lyon  V.  Mitchell,  36  N.  Y.  335,  93 
Am.  Dec.  502;  Pease  v.  Walsh,  49 
How.  Pr.  (N.  Y.)  269. 

Thus  in  Beal  v.  Polhemus.  — Mich. 
—34  N.  W.  Rep.  532,  Polhemus  gave 
Beal  a  note  to  be  paid  "as  soon  as  the 
postoffire  is  moved  into"  a  building 
which  Beal  was  then  erecting  on 
property  near  that  belonging  to  Pol- 
hemus, the  latter  believing  that  its 
location  there  would  enhance  the 
value  of  his  own  property.  Beal  was 
an  active  and  prominent  politician, 
but  while  there  was  some  evidence 
that  he  had  said  in  relation  to  similar 
contracts  with  other  parties  that  he 
could  control  the  senators  from  his 
State,  there  was  no  evidence  that  he 
made  any  such  representations  to 
Polhemus  or  that  the  using  of  any 
such  influence  constituted  any  part  of 
the  consideration  of  the  contract. 
The  postofflce  was  duly  mo^ed  into 
the  building,  but  Polhemus  refused  to 
pay  the  note,  alleging  it  to  be  invalid 
as  against  public  policy.  In  an  action 
to  recover  upon  it  the  trial  court 
found  as  a  fact  that  in  securing  the 
postofflce  to  be  placed  and  locnted  in 
his  building,  Beal  used  no  undue  in- 
fluence upon  any  department  or  offi- 
cers of  the  government,  and  was  not 
guilty  of  any  corruption  or  corrupt 
practice  in  making  the  contiact,  and 
did  no  more  tlian  any  honorable  man 
might  do  in  renting  his  building  to 
the  government  for  the  use  of  a  post- 
office,  and  he  was  allowed  to  recover. 
In  the  Supreme  court,  Morse,  J. 
said:  "Mr.  Beal  had  a  perfect  right 
to  be  heard  before  any  officer  of  the 
government  or  any  department  of  the 
same,  as  to  the  merits  of  his  building 
as  a  place  for  the  location  of  the  post- 

2 


office.  It  is  not  shown  by  the  find- 
ings or  the  evidence  in  the  case  that 
he  used  any  improper  means  to  gain 
bis  point,  or  even  that  he  influenced 
any  senator  or  representative  in  con- 
gress, or  any  officer  of  the  govern- 
ment, to  interfere  in  his  behalf.  He 
went  to  Washington  personally,  and, 
while  there,  secured  the  location  of 
the  office  where  he  wanted  it;  but 
there  is  not  the  slightest  testimony 
that  he  used  any  undue  means  to  ac- 
complish his  end.  We  cannot  pre- 
sume that  he  used  his  personal  power, 
which  is  said  to  have  been  very  great, 
in  a  corrupt  or  unseemly  manner,  or 
in  violation  of  any  public  policy. 
For  aught  we  know,  he  appeared  as 
any  citizen  might  and  has  a  right  to 
to  do,  before  the  proper  office  at 
Washington,  and  stated  the  merits  of 
his  claim  so  convincingly  and  con- 
clusively that  the  location  desired 
seemed  to  be  the  most  proper  and 
available  one.  Certainly  there  could 
be  nothing  wrong  in  this.  It  is  true, 
there  is  evidence  in  relation  to  some 
of  the  contracts,  not  in  suit,  that 
Beal  boasted  tbat  he  could  control  the 
senators  from  his  State,  and  that  he 
must  have  money  to  go  to  Washing- 
ton to  do  so;  but  there  is  no  testimony 
that  either  one  of  them  lifted  a  hand 
or  said  a  word  ip  his  behalf.  And 
there  is  nothing  to  show  that  in  the 
present  case  he  made  any  such  repre- 
sentations to  obtain  the  contract.  The 
defendant  agreed  to  pay  a  certain 
sum  upon  the  accomplishment  of  an 
object  in  which  he  saw  a  future  bene- 
fit to  his  property.  That  object  was 
obtained,  and  he  has  had  the  benefit 
he  desired.  There  is  no  valid  reason 
why  he  should  not  fulfill  the  contract 
on  his  part,  as  Beal  promptly  fulfilled 
his  part  of  the  agreement. " 


17 


I  25.  THE   LAW   OF   AGENOT.  [Book  I. 

But  where  the  employment  contemplates  the  bringing  to  bear 
of  improper,  sinister  or  personal  influence,  or  where  its  natural 
and  legitimate  tendency  is  in  that  direction,  particularly  where 
compensation  is  made  contingent  upon  success,  it  is  opposed  to 
public  policy  and  void.' 

§  25.  Same  Subject— Uliistrations.  Thus  in  a  leading  case 
decided  by  the  Supreme  Court  of  the  United  States,  one  Norris 
had  been  employed  by  the  Providence  Tool  Company  to  endeavor 
to  obtain  from  the  War  Department  an  order  for  a  large  number 
of  muskets,  and,  for  his  compensation,  he  was  to  receive  what- 
ever the  Government  should  agree  to  pay  for  each  musket  above 
a  certain  sum.  Norris  thereupon  set  himself  to  work,  to  use  his 
own  language,  "  concentrating  influence  at  the  War  Department," 
and  finally  succeeded  in  obtaining  a  favorable  contract.  After- 
wards a  dispute  arose  between  him  and  the  tool  company,  as  to 
the  amount  of  his  commission,  and  he  brought  an  action  to 
recover  it. 

The  Supreme  Court,  by  Mr.  Justice  Field,  said:  "The  ques- 
tion then  is  this :  Can  an  agreement  for  compensation  to  procure 
a  contract  from  the  government  to  furnish  its  supplies  be  enforced 
by  the  courts  1  We  have  no  hesitation  in  answering  the  ques- 
tion in  the  negative.  All  contracts  for  supplies  should  be  made 
with  those,  and  with  those  only,  who  will  execute  them  most 
faithfully  and  at  the  least  expense  to  the  government.  Con- 
siderations as  to  the  most  efiicient  and  economical  mode  of  meet- 
ing the  public  wants  should  alone  control,  in  this  respect,  the 
action  of  every  department  of  the  government.  No  other  ele- 
ment can  lawfully  enter  into  the  transaction  so  far  as  the  govern- 
ment is  concerned.  Such  is  the  rule  of  public  policy ;  and  what- 
ever tends  to  introduce  any  other  element  into  the  transaction  is 
against  public  policy.     That  agreements  like  the  one  under  con- 

•  But  in  a  case  very  similar  to  the  the  propriety  of  placing  the  postoffleo 

one  last  cited,  the  party  had  given  his  in  their  building  and  this  was  done, 

notes  in  consideration  that  the  owners  The  court,   however,    held  that  tha 

of  the  building  "would  use  all  proper  agreement  was  against  public  policy 

persuasion  to  secure  the  location  of  and  that  the  notes  were  void.     Elk- 

the  postofflce  in  their  room."    One  of  hart  County  Lodge  v.  Crary,  98  Ind. 

the  owners  was  a  personal  friend  of  238,    49   Am.   Rep.   746.      See    also, 

the    postmaster-general     and    repre-  Spence  «.    Harvey,  22   Cal.    336,  83 

sented  to  him  that  the  location  was  a  Am.  Dec.  69;  Hutchen  v.  Gibson,  1 

suitable  one  and  urged    upon    him  Bush,  (Ky.)  270. 

18 


Cliap.  II.]  FOB    WHAT   PURPOSES    CKEATED.  §  27. 

fiideration  have  this  tendency  is  manifest.  They  tend  to  intro- 
duce personal  solicitation  and  personal  influence  as  elements  in 
the  procurement  of  contracts,  and  thus  directly  lead  to  inefficiency 
in  the  public  service,  and  to  unnecessary  expenditures  of  the 
public  funds.  ♦  »  *  Agreements  for  compensation 
contingent  upon  success  suggest  the  use  of  sinister  and  corrupt 
means  for  the  accomplishment  of  the  end  desired.  The  law 
meets  the  suggestion  of  evil,  and  strikes  down  the  contract  from 
its  inception."  * 

§  26.  Services  in  prosecuting  Claims.  Contracts  for  services 
to  be  rendered  in  the  prosecution  of  claims  against  governments 
and  municipal  bodies  stand  upon  the  same  footing.  As  is  said 
by  a  learned  judge  in  a  case  involving  the  right  of  an  attorney  to 
recover  upon  such  a  contract :  "  Professional  services,  to  pre- 
pare and  advocate  just  claims  for  compensation,  are  as  legitimate 
as  services  rendered  in  court  in  arguing  a  cause  to  convince  a 
court  or  jury  that  the  claim  presented,  or  the  defence  set  up 
against  a  claim  presented  by  the  other  party,  ought  to  be  allowed 
or  rejected.  Parties  in  such  cases  require  advocates,  and  the 
legal  profession  must  have  a  right  to  accept  such  employment, 
and  to  receive  compensation  for  their  services ;  nor  can  courts  of 
justice  adjudge  such  contracts  illegal,  if  they  are  free  from  any 
taint  of  fraud,  misrepresentation  or  unfairness."* 

But  where  the  contract  contemplates  that  the  allowance  of  the 
claim  is  to  be  sought  by  using  improper  means  or  by  bringing 
personal  solicitation,  influence  or  persuasion  to  bear  upon  the 
officer  vested  with  the  duty  of  decision,  the  undertaking  is  unlaw- 
ful and  the  courts  will  not  enforce  it.* 

§  27.  Compromise  of  Crime.  It  is  a  high  requirement  of  the 
public  policy  that  crimes  should  be  investigated  and  punished, 
and  the  law  frowns  upon  all  attempts  to  suppress  investigation  or 
to  defeat  the  administration  of  justice.  Any  contract,  therefore, 
for  services  to  be  rendered  for  the  purpose  of  stifling  prosecu- 
tions, or  of  obstructing,  delaying  or  preventing  the  due  course 

>  Tool  Co.  V.  Norris,  2  Wall.  (U.  S.)  brey,  93  U.  S.  548;  Burbrldgec.  Fack- 

45;  and  the  same  rule  was  laid  down  ler,  3  McArthur  (D.  C.)  407. 

and   applied    in    Oscanyan  v.  Arms  *  Devlin  ».  Brady,  33  Barb.  (N.  Y.) 

Co  ,  103  U.  S.  261.  518. 


'Clifford.   J.   in  Stanton  «.  Em- 


19 


§  28.  THE    LAW    OF   AGENCY.  [Book  I. 

of  public  justice  in  its  efforts  to  punish  crime  is  opposed  to 
public  policy  and  void. 

Thus  an  agreetnent  with  an  attorney,  for  a  contingent  fee, 
to  settle  a  criminal  case  so  as  to  avoid  a  prosecution  ;^  an  agree- 
ment to  pay  one  for  endeavoring  to  induce  the  complainant  in  a 
prosecution  for  felony  to  discontinue  the  proceedings ;  *  an  under- 
taking for  compensation  to  endeavor  to  prevent  the  finding  of  an 
indictment,  and,  if  found,  to  endeavor  to  have  the  public  author- 
ities dismiss  it; '  an  agreement  for  a  contingent  fee  to  use  one's 
influence  with  a  prosecuting  attorney  to  induce  him  to  bring 
about  a  lighter  punishment  than  otherwise,  and  to  permit  the 
accused  to  turn  State's  evidence  with  the  hope  of  receiving  a 
pardon  therefor ;  *  and  an  agreement  with  an  attorney  to  attempt 
to  induce  the  sheriff  to  refrain  from  arresting  A,  who  is  charged 
with  murder,  the  object  being  to  give  A  an  opportunity  to 
escape,  ^  are  void. 

§28.  Services  in  procuring  Appointment  to  Office.  Contracts 
to  procure  the  appointment  of  a  person  to  public  office  fall  within 
the  same  principles.  These  offices  are  trusts,  held  solely  for  the 
public  good,  and  should  be  conferred  from  considerations  of  the 
ability,  integrity,  fidelity  and  fitness  for  the  position  of  the 
appointee.  No  other  considerations  can  properly  be  regarded  by 
the  appointing  power.  Whatever  introduces  other  elements  to 
control  this  power  must  necessarily  lower  the  character  of  the 
appointments  to  the  great  detriment  of  the  public  good.  Agree- 
ments for  compensation  to  procure  these  appointments  tend 
directly  and  necessarily  to  introduce  such  elements.  The  law, 
therefore,  from  this  tendency  alone,  adjudges  these  agreements 
inconsistent  with  sound  morals  and  public  policy.* 

'  Ormerod  v.  Dearmaa,  100  Penn.  v.  Swan,  2  W.  Va.  511,  98  Am.  Dec. 

St.  501,  45  Am.  Rep.  391,  787. 

8  Rhodes  v.   Neal,  64  Qa,   704,  37         •  Tool  Co.  «.  Norris,  3  Wall  (U.  S.) 

Am  Rep.  93.  45;  Gray  v.  Hook,  4  N.  Y    449;  Gas- 

» Barron  v.  Tucker,  63  Vt,  338,  38  ton  v.  Drake,   14  Nev.    175,  33  Am. 

Am.  Rep.  684.  Rep,   548;  Fllson  v.  Himes,  5  Penn. 

«Wi,a:lit  V.  Rindskopf,  43  Wis.  344.  St.  452;  47  Am.  Dec.  423;  Faurie  «. 

B  ArriagtoQ  v.   Sneed,  18  Tex.  135.  Morin,  4  Martia  (La.),39,  6  Am.  Dea 

See  also,  Buck  v.  First  National  Bank,  701;  Outon  v.  Rodes,  3  A.  K.  Marsh. 

27    Mich.    293,    15    Am.    Rep.    189;  (Ky.)  432,  13  Am   Dec.  193;  Eager «. 

Haines  v.  Lewis,  54  Iowa  301,  37  Am.  Catlin,  18  Hun  (N.  Y.),  448;  Haas  v. 

Rep.    202;    McMahon    v.    Smith,   47  Fenlon,   8  Kans.   601;  Liness ».  He» 

Conn.  221,  36  Am.  Rep.   67;  Dodson  ing,  44  III.  113,  93  Am.  Dec.  153. 

20 


Chap.  II.]  FOR    WHAT    PURPOSES    CREATED.  §  29. 

§  29.  Same  Ride  applies  to  private  Offices  and  Employments. 
The  same  principles  apply  to  contracts  to  procure  private  offices 
and  employments,  as  well  as  those  which  are  public  or  political 
in  their  nature.  Open  and  fair  presentation  of  an  applicant's 
qualifications  for  the  position  is  legitimate,  and  such  presentation 
may  lawfully  be  undertaken  for  a  compensation,  where  the 
agent's  relations  to  the  subject  matter  and  the  appointing  power 
will  permit,  and  the  fact  that  he  comes  as  a  hired  advocate  is 
disclosed. 

But  where  it  is  contemplated  that  the  agent  is  to  conceal  his 
agency  and  assume  the  position  of  a  disinterested  friend  or  ad- 
viser ;*  or  where  the  appointment  is  to  be  sought  by  bringing  to 
bear  personal  influence  or  persuasion  ;"  or  where  the  undertaking 
of  the  commission  at  all  is  inconsistent  with  duties  already  as- 
sumed or  imposed  by  law,  the  contract  is  repugnant  to  the  public 
policy.* 

Thus  where  A,  an  attorney,  employed  B,  the  agent  of  C,  to 
endeavor  to  persuade  C  to  discharge  a  certain  other  attorney  he 
was  then  employing,  and  to  employ  A  instead,  and  promised  B, 
by  way  of  compensation,  to  divide  with  him  such  fees  as  A  might 
receive,  it  was  held  that  the  agreement  was  void.*    So  a  contract 

>  See  BoUman  e.  Loomis,  41  Conn,  disinterested  good  oflaces,    and    the 

681,  where  A.  for  a  fee  from  C,  un-  measure     proposed,     to    be    recom- 

dertook  to  pose  as  the   confidential  mended  by  the  unbiased  judgment  of 

friend  and  adviser  of  B.  and  thus  in-  the  person  offering  it;  whereas,  it  is 

duce  him  to  purchase  property  of  C.  In  fact  an  offer  flowing  from  unavowed 

"This,"  says  Chief  Justice  Shaw,  motivesof  pecuniary  interest,  and  the 

in  Fuller  v.  Dame,  18  Pick.  (Mass.)  recommendation  is  the  result  of   a 

473,   in  speaking  of  this    rule,   "is  Judgment  biased  by  a  hope  of  a  large 

founded  upon  the  general  considera-  reward.     If  rewards  might  be  taken 

tion  of  fitness  and  expediency.    Such  in  consideration  of  the  exertion   of 

advice  and  solicitation,  in  whatever  direct  or  indirect  influence,  either  by 

form  the  agency  may  be  exerted,  are  the  person  acting    under    it,  or  by 

understood  to  be  disinterested  and  to  others  who  should  be  influenced  and 

flow  from  a  single  regard  to  the  inter-  moved  by  him,  it  would  destroy  all 

ests  of  the  parties.     They  are  lawful  confirlence,  it  would  lead  to  false  and 

only  so  far  as  they  are  free  and  disin-  unfair  representations  and  dealings, 

terested.     If  such  advice  and  solicita-  and  be    productive  of  infinite  mifl- 

tion,  thus  understood  to  be  pure  and  chief," 

disinterested,  may  be  justly   offered  *  See  note  4,  post. 

from  mercenary  motives,  they  would  »  See  note  4,  5  and  6,  post. 

produce  all  the  consequences  of  abso-  <  Byrd  v.  Hughes,  84  111.    174;  26 

lute  misrepresentation  and  falsehood.  Am.  Rep,  443;  Meguire  t>,  Corwine, 

It  is  understood  to  be  the  offer  of  101  U,  S.  108. 

21 


§  30.  THE   LAW   OF   AGENCY.  [Book  I. 

that  in  consideration  of  B's  purchasing  of  A  certain  stock  in  a 
corporation,  A  would  procure  B's  appointment  as  treasurer'  or 
cashier '  thereof,  is  void.  Such  appointments  should  be  made 
because  of  the  personal  fitness  of  the  applicant,  and  not  because 
the  appointing  power  is  open  to  personal  influence  or  can  be 
bought  for  a  price.  So  A,  who  has  been  requested  to  recommend 
to  C,  a  suitable  person  for  employment  whom  he  could  endorse  as 
in  every  way  responsible  and  reliable,  cannot  lawfully  undertake 
to  secure  the  position  for  B  in  consideration  of  B's  paying  him 
a  fee.* 

§  30.  Services  in  improperly  influencing  Elections.  Purity 
of  elections,  and  the  free,  fair  and  intelligent  exercise  of  the 
ballot,  uninfluenced  by  other  considerations  than  the  candidate's 
fitness  and  the  general  good  of  the  community,  are  of  paramount 
public  importance,  and  any  agreement  for  the  rendition  of  ser- 
vices which  have  for  their  object,  or  which  legitimately  tend  to, 
the  introduction  of  other  elements,  as  the  bribery  of  voters  or 
the  bringing  to  bear  upon  them  of  personal  influence,  solicitation 
or  persuasion,  is,  in  accordance  with  the  principles  already  referred 
to,  clearly  opposed  to  public  policy  and  void. 

Thus  where  one  who  was  a  candidate  for  the  oflSce  of  district 
attorney,  employed  another  to  "  use  all  of  his  influence "  with 
the  voters  of  the  county  to  secure  the  candidate's  election,  and 
who  promised  as  compensation  therefor,  that  if  he  should  be 
elected,  he  would  divide  the  fees  of  the  office  with  the  other,  the 
court  said  :  "  Such  a  contract  cannot  be  upheld.  Its  tendency 
was  to  corrupt  the  people  upon  whose  integrity  and  intelligence 
the  safety  of  the  state  and  nation  depends, — to  lead  voters  to 
work  for  individual  interests  rather  than  the  public  welfare."* 

So  where  one  agreed  to  render  services  in  procuring  the  elec- 

» Guernsey  e.  Cook,  120  Mass.  501;  <  Gaston  «.  Drake,  14  Nev.  175,  83 

Noyese.  Marsh,  123  Mass.  286;  Jonea  Am.   Rep,  548;  Martin  ».  Wade.   37 

V.  Scudder,  2  Gin.  Sup.  Ct.  178.  Cal.  168;  see  also  Swayze  v.  Hull,  3 

« As  of  a  National  Bank,  Noel  v.  Halstead  (N.  J.),54,  14  Am.  Dec.  3'J9. 

Drake,  28  Kans.  265,  42  Am.   Rep.  An    agreement    to    pay    another    to 

162;  see  also  Railroad  Co.  v.  Ryan,  "work  and  canvass"  voters  for  the 

11  Kans.  602;  Haast).  Fenlon,  SKans.  purpose  of  securing  the  promisor's 

601 ;  Tool  Co.  v.  Norris,  2  Wall.  (U.  nomination    for    an    office    is    void. 

S.)  45.  Keating    v.     Hyde,     23    Mo.     App. 

'Holcomb  V.  Weaver,    136  Mass.  555. 
265,  17  Reporter,  401. 

22 


Chap.  II.]  FOR   WHAT   PURPOSES    CREATED.  §  32. 

tion  of  a  certain  candidate  to  the  office  of  sheriff  upon  considera- 
tion that  if  successful  he  should  be  appointed  deputy,  the  court 
held  the  agreement  void.*  And  where  one  for  money  or  other 
personal  profit,  agrees  to  use  his  influence  in  an  election  against 
what  he  believes  to  be  for  the  public  good,  the  contract  is  void, 
though  as  a  matter  of  fact  he  uses  no  unlawful  means." 

§  31.  Same  Subject  — What  Services  legitimato.  But  it  is 
not  unlawful  for  a  candidate  for  a  public  office,  particularly 
where  his  candidacy  extends  over  a  considerable  territory,  to 
employ  another  to  make  public  speeches  in  his  behalf,  or  to  pre- 
pare, print  or  distribute  arguments  upon  the  questions  at  issue, 
or  to  use  other  open  and  honorable  means  to  promote  the  success 
of  his  candidacy,  where  the  object  is  to  convince  the  understand- 
ings of  the  voters  by  public  means  and  not  to  bring  personal  or 
other  improper  influences  to  bear  upon  their  weaknesses  or  pre- 
judices.* 

§  32.  Services  in  procuring  Pardons.  The  same  general 
principles  which  underlie  the  questions  just  discussed,  govern 
here.  An  agent  or  attorney  may  lawfully  be  employed  to  attend 
an  open  or  public  hearing  of  the  executive  or  board  of  pardons, 
and  make  such  legitimate  arguments  and  present  such  petitions, 
memorials,  statements  of  fact  and  evidence  as  are  appropriate  to 
bring  before  the  pardoning  power  all  the  considerations  which 
may  be  properly  taken  into  account  in  behalf  of  the  convicted 

'  Stout  «.  Ennis,  28  Kans.  706.  And  the  choice  of  the  voter.     No  public 

a  like  ruling  was  made  in  Robertson  policy  forbids  the  making  of  compen- 

r.    Robinson,   65  Ala.    610,    39  Am.  sation,  under  agreement  or  otherwise, 

Rep.  17.     See  also  Sailing  «.  McKin-  for  printing  or  distributing  announce- 

ney,  1  Leigh  (Va.),  43,  19  Am.  Dec.  ments,  or  for  the  employment  of  any 

722;    Groton  v.    Waldoborough,    11  proper  agency  which  may  bring  the 

Mc.  306,  26  Am.  Dec.  530.  fact  of    a  person's  candidacy   more 

sNidiolsp.  Mudgett,  32  Vt.  546.  prominently  before  the  public  eye. 

»" There    is  a  clear    distinction,"  The  information  thus  disseminated  ia 

says  Lewis, P.  J.,  in  Keating©.  Hyde,  essential  to  the  intelligent  deterraina- 

23  Mo.  App.  555,  "  between  the  pur-  tion    of    the    voter's    choice.       But 

chase  of  services  to  be  devoted  only  it  becomes  a  very  different  thing  when 

to  an  advertising  of  the  fact  that  one  money  is  paid  or  promised  for  efforts 

is  or  desires  to  be  a  candidate,  and  to  control  the  voter's  free  agency  in 

the  purchase  of  services  to  be  em-  selecting  the  object  of  his  suffrage." 

ployed  in    advocating    his    peculiar  See  also  Murphy  v.  English,  64  How. 

merit  and  eligibility  so  as  to  influence  Pr.  (N.  T.)  362. 

23 


§33. 


THE    LAW    OF    AGENCY. 


[Book  I. 


person  ;'  bnt  all  employments  having  for  their  object  or  natural 
tendency  the  using  of  any  improper  or  sinister  means,  or  which 
contemplate  the  exercise  of  personal  influence  or  solicitation, 
especially  if  for  a  contingent  fee,  are  looked  upon  by  the  law  as 
demoralizing  in  their  tendency,  opposed  to  public  policy  and 
void,  even  though  in  the  particular  case  no  improper  means  were 
used  or  contemplated." 

§  33.  How  when  Conviction  illegal.  But  where  the  con  vie- 
tion  was  unwarranted,  as  because  the  court  had  no  jurisdiction, 
or  where  there  was  a  grave  doubt  as  to  the  constitutionality  of 
the  statute  under  which  the  conviction  was  had,  no  rule  of  public 


>  Chadwick  «.  Knox,  31  N.  H.  226, 
64  Am.  Dec.  329 ;  Bremsen  v.  Engler, 
49  N.  Y.  Super.  Ct.  172;  Formby  v. 
Pryor,  15  Qa.  258;  Bird  v.  Breedlove, 
24  Ga.  633.  "It  is  not  at  once  ap- 
parent," says  Bell,  J.,  in  Chadwick 
«.  Knox,  supra,  "that  it  is  not  lawful 
and  proper  for  a  party  who  is  suffer- 
ing the  punishment  of  a  crime  to 
apply  to  the  pardoning  power  for  a 
remission  of  his  sentence;  and  as  far 
as  we  are  aware,  no  censure  has  been 
regarded  as  attaching  to  such  an  ap- 
plication, either  in  law  or  morals.  It 
seems  to  us  equally  reasonable  for  any 
other  person  who  believes  it  his  duty 
to  make  such  application  in  behalf  of 
another,  to  present  the  case  to  the 
executive,  with  such  petitions,  me- 
morials, statements  of  facts  and  evi- 
dence as  are  suitable  to  satisfy  the 
pardoning  power  of  the  propriety  of 
the  relief  desired,  and  we  think  no 
censure  can  be  justly  attached  to  any 
person  for  his  exertions  in  such  a 
case  if  the  measures  adopted  are  con- 
Bistent  with  the  facts  of  the  case,  and 
with  the  truth  and  honesty  of  all 
parties  concerned,  while  any  effort  to 
obtain  such  pardon  by  falsehood  and 
misrepresentation,  or  by  any  species 
of  fraudulent  contrivance,  or  by  pros- 
tituting the  influence  resulting  from 
official  station,  or  from  personal  rela- 


tion to  the  pardoning  power,  is  en- 
tirely forbidden  by  law. 

A  person  in  prison  can  do  little  to 
aid  himself  in  bringing  his  case  to  the 
consideration  of  the  executive.  For 
everything  that  must  be  done  without 
the  walls  of  the  prison,  the  convict  is 
compelled  to  rely  on  the  assistance  of 
those  who  have  their  liberty.  Such 
assistance  may  be  afforded  from  mo- 
tives of  charity  and  compassion,  or 
the  motive  may  be  in  part  kindness 
and  in  part  an  expectation  that  the 
party  relieved  will  be  ready  to  afford  a 
suitable  compensation  for  the  services 
and  expenses;  or  the  party  in  prison 
may  employ  another  to  do  such  acts 
as  may  be  rightfully  and  properly 
done  for  his  relief  and  contract  to  pay 
him  for  his  services,  and  to  repay  him 
his  expenses.  Such  a  contract,  if  the 
parties  contemplate  only  a  resort  to 
legal  and  proper  measures,  is  free 
from  any  just  exception,  and  binding 
upon  the  parties." 

sHatzfleld  v.  Gulden,  7  Watta 
(Penn.),lo3,  32  Am.  Dec.  750;  Thomp- 
son V.  Wharton,  7  Bush,  (Ky.),  563, 
8  Am.  Rep.  806;  Haines  v.  Lewis,  54 
Iowa,  301,  37  Am.  Rep.  262;  Kribben 
V.  Haycraft,  26  Mo.  396;  McGill's 
Admr.  v.  Burnett,  7  J.  J.  Marsh. 
(Ky.),  640. 


24 


Chap.  II.]  FOB   WHAT   PURPOSES    CREATED.  §  34. 

policy  would  be  violated  by  legitimate  endeavor  to  secure  the 
pardon  or  release  of  the  accused.^ 

§  34.  Services  in  procuring  or  suppressing  Evidence.  Like 
considerations  apply  to  undertakings  to  procure  evidence  for  use 
before  legal  tribunals.  It  is  entirely  lawful  and  proper  for  a 
party  to  an  action  or  controversy  to  employ  another  to  ascertain 
what  documentary  and  other  evidence,  and  what  witnesses  are 
available ;  to  obtain  the  names  of  the  witnesses  and  a  memoran- 
dum of  their  testimony ;  to  cause  them  to  be  duly  subpoenaed 
for  attendance  upon  trial,  and  to  take  such  other  steps  as  may  be 
necessary  and  proper  to  enable  the  party  to  present  all  the  evi- 
dence that  is  pertinent  to  his  case.  This  service  is  legitimate, 
and  tends  to  promote  and  secure  the  due  administration  of  justice.* 

But  contracts  by  which  the  agent  undertakes,  or  which  have 
for  their  object,  the  procuring  or  furnishing  of  evidence  sufficient 
to  win  the  case  or  to  establish  a  certain  fact,  or  the  procuring 
of  witnesses  to  testify  in  a  certain  manner,  or  to  procure  the  pro- 
duction of  testimony  which  could  be  produced  only  by  a  viola- 
tion of  a  legal  duty,  stand  upon  a  different  basis.  The  intention 
and  methods  of  the  parties  in  a  given  case  may  be  honorable  and 
proper,  but  the  natural  and  probable  result  of  such  an  undertak- 
ing is  to  defeat  the  administration  of  justice  and  corrupt  the 
morals  of  the  people  by  putting  a  premium  upon  perjury  and  by 
holding  out  a  direct  incentive  to  the  subornation  of  witnesses. 
It  requires  no  extended  argument  to  establish  that  such  under- 
takings are  contrary  to  sound  public  policy  and  void.* 

'Thompson   v.    Wharton,    $upra;  means  employed  an  agent  to  procure 

Timothy  v.  Wright,  8  Qray,  (Mass.)  testimony  for  that  purpose,  agreeing 

623.  to  pay   him  $100  for  the   first     lea 

» Chandler    v.    Mason,    2  Vt.  193;  votes  which  the  testimony  procured 

Lucas  V.  Pico,  65  Cal.  136;  Wilkinson  by  him  proved  to  be  illegal,  $300  for 

V.  Oliveira,  1  Scott  (Eng.  C.  P.)  461;  the  next  ten  votes,  and  so  on,  and  an 

Cobb  V.  Cowdery,  40  Vt.  35,  94  Am.  additional  sum  of  $1,300,  to  be  paid 

Dec.  870.  when   the  case  was  decided   in   the 

» Gillett  V.   Logan  County,  67  111.  county's    favor.    These    agreements 

256;  Hoy t  «.  Macon,  3  Col.  503;  Lucas  were   held    to    be  void.     "The  con- 

f).    Allen,    80  Ky.    681;  Patterson  v.  tracts  themselves,"    said   the  court, 

Donner,  48  Cal.  369.  "are  pernicious  in  their  nature.  They 

In  Gillett  v.  Logan  County,  supra,  created  a  powerful  pecuniary  induce- 
the  board  of  supervisors  of  the  ment  on  the  part  of  the  agents  so  em- 
county  desiring  to  prove  a  certain  ployed,  that  testimony  should  be 
election  to  have  been  carried  by  illegal  given  of    certain  facts,   and  that  a 

25 


§35. 


THE   LAW   OF   AGENOT. 


[Book  I. 


Equally  pernicious,  and  for  similar  reasons,  are  nndertakings 
to  suppress  or  destroy  evidence  by  concealing,  removing  or  tam- 
pering with  witnesses,  or  by  compassing  the  destruction  of  the 
means  of  proof.* 

R  35.  Unlawful  Dealings  in  Stocks  or  Merchandise.  So  a 
contract  for  services  to  be  rendered  by  a  broker  in  unlawful 
dealings  in  stocks  or  merchandise  is  void.  What  dealings  are 
lawful  and  what  are  unlawful,  are  questions  which  the  courts 
have  much  discussed,  but  which  are  beyond  the  scope  of  the 
present  treatise.  In  general  terms,  however,  it  may  be  said  that 
undertakings  which  contemplate  the  creation  of  fictitious  and 
unnatural  values,  or  the  control  or  monopoly  of  the  traffic,  or  the 
prevention  of  the  free  and  natural  competition,  in  the  staple 
articles  of  commerce,  are  void.*  So  undertakings  which  have  for 
their  object  the  gambling  in  the  values  of  stocks  and  merchandise, 
as  the  purchase  or  sale  of  what  are  ordinarily  called  "  futures," 
"  maro-ins "  and  "  options,"  where  the  purpose  of  the  parties  is 


peculiar  result  of  the  suit  should  be 
had.    A  strong  temptation  was  held 
out  to  them  to  make  use  of  improper 
means  to  procure  the  needful  testi- 
mony, and  to  secure  the  desired  re- 
sult of  the  suit.     The  nature  of  the 
agreement  was  such  as  to  encourage 
attempts   to    suborn     witnesses,    to 
tamper  with  jurors,  and  to  make  use 
of  other  base  appliances  in  order  to 
secure  the  necessary  results    which 
were  to  bring  to  these  agents  their 
stipulated    compensation.     The   ten- 
dency of  such  arrangements  must  be 
to  taint  with  corruption  the  atmos- 
phere of  the  courts,  and  to  pervert 
the  course  of  justice.    A  pure  admin- 
istration of  justice  is  of  vital  public 
concern.      It    tends    to    evil  conse- 
quences that  any  such  venal  agency, 
as  is  constituted  by  these  contracts, 
should  have  a  part  in  the  conduct  of 
judicial  proceedings  where  the  attain- 
ment of  right  and  justice  is  the  end. 
Should    contracts    of    this      nature 
receive    countenance,      we     might, 
among    the    multiplying    forms     of 


agency  of  the  time,  have  to  witness 
the  scandalous  spectacle  of  a  class  of 
agents  holding  themselves  out  to  the 
public  as  professional  procurers  of 
desired  testimony  for  litigants  in 
courts  for  pay,  contingent  upon  suc- 
cess in  their  suits." 

1  Cobb  V.  Cowdery,  supra;  Bost- 
ick  V.  McLaren.  2  Brev.  (S.  Car.) 
275;  Badger  «.  Williams,  1  D.  Chip. 
(Vt)137;  HoytP.  Macon,  2  Col.  502; 
Valentine  v.  Stewart.  15  Cal.  387. 

An  agreement  to  pay  an  employee 
his  salary  and  expenses  to  keep  out 
of  the  reach  of  process  issued  to 
compel  him  to  be  a  witness  against 
his  employer  is  void.  Bierbauer  v. 
Wirth,  5  Fed  Rep.  336.  10  Biss.  60. 

2  Raymond  v.  Leavitt,  46  Mich.  447, 
41  Am.  Rep.  170;  Sampson  u.  Shaw, 
101  Mass.  145,  3  Am.  Rep.  327; 
Wright  V.  Crabbs,  78  Ind.  487;  Craft 
V.  McConoughy,  79  111.  346;  Morris 
Run  Coal  Co.  v.  Barclay  Coal  Co.  6S 
Penn  St.  173;  Arnot  v.  Coal  Co.  68 
N.  Y.  558. 

26 


Cfiap.  II.] 


FOR    WHAT    PURPOSES    CREATED. 


§37. 


not  that  there  shall  be  an  actual  sale  and  delivery  of  the  property, 
but  merely  a  settlement  by  the  payment  of  the  difference  la 
market  prices,  are  opposed  to  public  policy  and  void.^ 

§  36.  Marriage  Brokerage  void.  A  marriage  brokerage  con- 
tract is  an  agreement  for  the  procurement  of  a  marriage  for  a 
commission  or  other  compensation.  Such  contracts  are  clearly 
opposed  to  public  policy  and  void,  even  though  in  the  given  case 
no  fraud  was  practiced  on  either  part3\  Their  tendency  is  to 
bring  to  pass  mistaken  and  unhappy  marriages,  to  countervail 
parental  influences  in  the  training  and  education  of  cliildren,  and 
to  tempt  the  exercise  of  an  undue  and  pernicious  influence  in 
respect  to  the  most  sacred  of  human  relations.' 

§  37.  Corruption  of  Agents.  Contracts  for  services  to  be  ren- 
dered in  attempting  to  corrupt,  bribe  or  mislead  the  servant  or 
agent  of  another,  as  by  giving  him  secret  gratuities,  fees  or 
commissions,  to  induce  him  to  disregard,  slight  or  ignore  his 
principal's  interests,  or  to  be  less  zealous  and  watchful  in   the 


» Irwin  «.  Williar,  110  U.  8.  499; 
Stewart  «.  Schall,  65  Md.  299;  57  Am. 
Rep.  337;  Lyoa  v.  Culbertson,  83  111. 
83,  25  Am.  Rep.  349;  Union  Nat. 
Bank  v.  Car.  15  Fed.  Rep.  438;  Cobb 
V.  Prell,  15  Fed.  Rep.  77;  Bigelow  v. 
Benedict,  70  N.  Y.  203,  26  Am.  Rep. 
573;  Gregory  v.  Wendell,  39  Mich. 
337,  33  Am.  Rep.  390;  Wbitesides  v. 
Hunt,  97  Ind.  191,  49  Am.  Rep.  441; 
Cunningham  v.  National  Bank, 71  Ga. 
400,  51  Am.  Rep.  266;  Wall?;.  Schnei- 
der, 59  Wis.  353,  48  Am.  Rep.  530; 
Flagg  V.  Baldwin,  38  N.  J.  Eq.  319,  48 
Am.  Rep.  308;  Murry  v.  Ocheltree, 
50  Iowa,  435;  Barnard  v.  Backbaus, 
53  Wis.  503;  Everingham  v.  Meighan, 
55  Wis  354;  Cameron  «.  Durkheim, 
55  N.  Y.  42.5;  Peurce  v.  Foot,  113  111. 
228;  55  Am.  Rep.  414;  Crawford  v. 
Spencer,  93  Mo.  498;  1  Am.  St.  Rep. 
745. 

"The  generally  aciepted  doctrine  in 
this  country,"  says  Mr.  Justice  Mat- 
thews in  Irwin  v.  Williar,  supra,  '  'is 
•  *  *  that  a  contract  for  the  sale  of 
goods  to  be  delivered  at  a  future  day 


is  valid,  even  though  the  seller  has 
not  the  goods,  nor  any  other  means 
of  getting  them  than  to  go  into  the 
market  and  buy  them,  but  such  a 
contract  is  only  valid  when  the  parties 
really  intend  and  agree  that  the  goods 
are  to  be  delivered  by  the  seller  and 
the  price  to  be  paid  by  the  buyer;  and, 
if  under  guise  of  such  a  contract,  the 
real  intent  be  really  to  speculate  in 
the  rise  and  fall  of  prices,  and  the 
goods  are  not  to  be  delivered  but  one 
party  is  to  pay  to  the  other  the  differ- 
ence between  the  contract  price  and 
the  market  price  of  the  goods  at  the 
date  fixed  for  executing  the  contract, 
then  the  whole  contract  constitutes 
nothing  more  than  a  wager,  and  is 
null  and  void." 

2  White  V.  Equitable  Nuptial  Bene- 
fit Union,  76  Ala.  251,  52  Am.  Rep, 
335;  20  Cent.  L.  Jour.  288;  John.son 
V.  Hunt,  81  Ky.  331,  17  Cent.  L. 
Jour.  468;  Crawford  v.  Russell,  63 
Barb.  (N.  Y.)  92. 

See  also  James  v.  Jellison,  94  lud. 
293,  48  Am.  Rep,  151, 


27 


§38. 


THE   LAW   OF    AGENCY. 


[Book  I. 


discharge  of  his  dut}',  or  to  assume  to  his  principal  the  appear- 
ance of  a  disinterestedness  or  candor  which  he  does  not  in  fact 
feel,  or  to  enter  into  the  secret  service  of  the  other  party,  or  in 
any  other  manner  to  violate  the  trust  and  confidence  reposed  in 
him,  are  obviously  corrupt  and  void.^ 

R  38.  Other  Cases  involving  same  Principles.  Other  cases  in- 
volving the  same  principles  may  be  cited.  Thus,  an  employment 
to  sell  tickets  in  a  forbidden  lottery;*  an  undertaking  for  a  con- 
tingent compensation  to  endeavor  to  procure  the  discharge  of  a 
drafted  man ; »  an  agreement  for  using  personal  influence  with 
public  officers  to  secure  the  favorable  allowance  of  an  account ;  * 
an  employment  for  a  contingent'  compensation  of  one,  who 
ostensibly  acted  only  as  a  disinterested  physician,  to  use  his 
endeavors  in  procuring  from  a  railroad  company  as  large  damages 
as  possible  for  one  who  has  been  injured  in  a  railroad  accident ; » 
an  ao-reement  to  pay  one  for  assuming  to  be  the  confidential 
friend  and  adviser  of  another,  and  in  that  capacity  to  advise  the 
latter  to  buy  a  piano  of  the  promisor ;  •  an  undertaking  to  pro- 
cure cotton  for  shipment  in  violation  of  the  rules  of  war ; '  to 


'  See  Atlee  v.  Fink,  75  Mo.  100,  43 
Am.  Rep.  385,  -where  an  agreement 
secretly  made  by  a  lumber  dealer  with 
one  employed  to  supervise  the  erec- 
tion of  buildings  for  another  and  to 
pass  upon  accounts  for  materials,  but 
not  to  make  purchases,  by  which  the 
lumber  dealer  agreed  to  pay  him  a 
commission  on  sales  made  to  the  em- 
ployer through  his  influence,  was  held 
void  as  against  public  policy. 

So  where  a  secret  gratuity  is  given 
to  the  agent  with  the  intention  of  in- 
fluencing his  mind  in  favor  of  the 
giver  of  the  gratuity,  and  the  agent 
on  subsequently  entering  into  a  con- 
tract with  such  giver  on  behalf  of  his 
principal,  is  actually  influenced  by 
the  gratuity  in  assenting  to  stipula- 
tions prejudicial  to  the  interests  of 
his  principal,  although  the  gratuity 
was  not  given  directly  with  relation 
to  that  particular  contract,  the  trans- 
action is  fraudulent  as  against  the 
principal  and  the  contract  is  voidable 


at  his  option.  Smith  v.  Sorby,  3  Q. 
B.  Div.  552,  28  Eng.  Rep.  455.  Even 
though  the  agent  was  not  in  fact  in- 
fluenced against  his  principal's  inter- 
ests, the  contract  is  corrupt.  Har- 
rington V.  Victoria  Graving  Dock  Co. 
3  Q.  B.  Div  549,  28  Eng.  Rep.  453. 
See  also  Bellman  v.  Loomis,  41  Conn. 
581;  Western  Union  Tel.  Co.  v.  Rail- 
road Co.  1  McCrary  (U.  S,  C.  C),  418. 

•Rolfe  V.  Delmar,  7  Robt.  (K  Y.) 
80. 

3  Bowman  v.  Coffroth,  59  Penn.  St. 
19;  O'Hara  «.  Carpenter,  23  Mich. 
410. 

♦  Devlin  v.  Brady,  32  Barb.  (K  Y.) 
518. 

s  Thomas  t).  Caulkett,  57  Mich.  393, 
58  Am.  Rep.  369. 

•Bollman».  Loomis,  41  Conn.  581. 

T Irwin  17.  Levy,  24  La.  Ann.  303; 
see  also  Williams  v.  Gay,  21  La. 
Ann.  110;  Haney  v.  Manning,  21  La. 
Ann.  166;  Rhodes  v.  Summerhill,  4 
Heisk.  (Tenn.)  204. 
28 


Chap.  II.]  FOE   WHAT   PURPOSES    CREATED.  §  39. 

assist  in  carrying  on  an  illegal  trade,  as  the  keeping  of  a  saloon,* 
or  billiard  table,'  or  the  running  of  a  lottery ;  •  contracts  for 
services  to  be  rendered  at  times  forbidden  by  the  law,  as  for 
work  upon  Sunday,*  violate  the  rules  of  public  policy  and  are 
void.  This  list  might  be  greatly  extended,  but  the  cases  given 
are  sufficient  to  illustrate  the  principles. 

§  39.  Agent  must  participate  in  unlawful  Purpose.  In  order, 
however,  to  render  the  undertaking  in  these  cases  void,  as 
between  the  principal  and  the  agent,  it  is  necessary  that  the  agent 
should  have  participated  in  the  unlawful  purpose  of  the  princi- 
pal, or  that,  knowing  of  that  purpose,  he  has  directly  assisted  in 
giving  it  effect.  But  where  the  agent,  as  for  example  a  broker, 
is  employed  simply  to  bring  parties  together  to  contract,  he  is 
not  affected  by  the  illegality  of  the  contract  which  they  alone 
make,  without  his  aid  or  participation,  although  he  knew,  or  had 
reason  to  believe,  that  they  intended  to  enter  into  an  unlawful 
arrangement.*  But  if  he  makes  or  assists  in  making  the  unlaw- 
ful contract  for  them,  or  if  he  brings  them  together  for  the  very 
purpose  of  entering  into  an  illegal  arrangement,  he  is  particepa 
criminis  with  them.* 

So  if  the  undertaking  was  lawful  on  its  face,  and  the  agent 
was  ignorant  of  the  facts  or  the  purpose  which  alone  rendered  it 
unlawful,  he  is  not  affected  by  its  illegality.' 

»  Bixby  V.  Moor,  51  N.  H.  403.  not  suing  to  enforce  an  unlawful  con- 

*  Badgley  t».  Beale,  3  Watts  (Penn.),  tract,  has  a  meritorious  ground  for 
263.  the    recovery  of   compensation    for 

•Davis©.  Caldwell,  3  Rob.  (La.) 271.      services  and  advances.     But  we  are 

*  Watts ».  Van  NesB,  lHill(N.  Y.),  also  of  the  opinion  that  when  the 
76.  broker  is  privy  to  the  unlawful  design 

sRoundtree    v.    Smith,  108  U.  8.  of  the  parties,  and  brings  them  to- 

269;  Ormes  v.  Dauchy,  46  N.  Y.  Super,  gether  for  the  very  purpose  of  enter- 

Ct.  85;  Patrick  «.  Littell,  88  Ohio  St.  ing  into  an  illegal  agreement,  he  is 

79;  DeOroot  e.  VanDuzer,    17  Wend,  pa/rtieeps  criminis,  and  cannot  recover 

(N.  Y.)  170;  Tracy  v.   Talmage,    14  for  services  rendered  or  losses    in- 

N.  Y,  163,  67  Am.  Dec.  133.  curred  by  himself  on  behalf  of  either 

«  "  It  is  certainly  true,"  says  Mat-  in  forwarding  the  transaction." 
THEWS,  J.,  in  Irwin  «.Williar,  110  U.  'Roys  «.  Johnson,  7  Gray  (Mass.), 

S.   at  p.  510,   "that  a  broker  might  163;  Wright  v.  Crabbs,  78  Ind.  487; 

negotiate    such    a   contract  without  Haines  v.  Busk,  5  Taunt.  (Eng.  C.  P.) 

being  privy  to  the  illegal  intent  of  631. 

the  principal  parties  to  it  which  ren-  Upon  the  general  question  of  parti- 

ders  it  void,  and  in  such  a  case,  being  cipation  in  unlawful    purposes,    see 

innocent  of  any  violation  of  law,  and  Hubbard  «.  Moore,  24  La.  Ann.  591, 

29 


§iO. 


THE    LAW    OF    AGENCY.  [Book  L 


8  40.  WlLole  Contract  void  when  entire.  It  is  well  settled 
that  where  a  contract  is  an  entire  one,  and  contains  some  ele- 
ments which  are  legal  and  others  which  are  illegal,  it  cannot  be 
so  apportioned  as  to  select  and  sustain  those  elements  only  which 
are  lawful.  If  any  part  of  an  indivisible  promise,  or  any  part 
of  an  indivisible  consideration  for  a  promise,  is  illegal,  the  whole 
is  void,  and  no  action  can  be  maintained  upon  it.^  Where,  how- 
ever, the  contract  is  a  divisible  or  apportionable  and  not  an  entire 
one,  and  the  lawful  elements  can  be  separated  from  the  unlawful, 
the  legitimate  portions  may  be  given  effect.* 

II.  • 

POWERS    OF    A    PERSONAL    NATT7RE. 

S  41.  Personal  Duty,  Trust  or  Confidence  cannot  be  delegated. 
This  exception  to  the  general  rule,  that  whatever  one  may  law- 
fully do  in  his  own  right  and  in  his  own  behalf,  he  may  lawfully 
delec^ate  to  an  agent,  is  founded  upon  obvious  considerations. 
Powers  which  are  conferred  upon  one  in  consideration  of  his 
personal  qualities  or  characteristics,  or  as  the  result  of  special 
trust  and  confidence  reposed  in  him,  should  clearly  be  executed 
by  him  in  person.'  So  an  authority  which  is  conferred,  or  a 
duty  which  is  created  by  statute,  may,  by  the  express  terras  or 
necessary  efEect  of  the  act,  be  required  to  be  performed  by  the 
person  only  who  is  named.*  So,  too,  a  man  who  is  enabled  to  do 
a  thing  by  special  custom  cannot  do  it  by  an  agent  if  he  is  not 
warranted  by  the  custom  in  so  doing.' 

13  Am.  Rep.  128;  Mahood  v.  Tealza.  (N.  Y.)  485.  87  Am^Dec.  SJl;  New- 

26  La.  Ann.  108,  21  Am.  Rep.  546;  ton  v.  Bronson.  13  N.  Y.  587,  6.  Am. 

Michael  V   Bacon  49  Mo.  474,  8  Am.  Dec.  89;  Merrill  r.  Trust  Co..  24  Hun 

R^p    iL;    HarrlL  ..   Woodruff,   124  (K  Y.),  300;  Litkar.  Wilcox.  39  Mich. 

Mass.  205,  26  Am.  Rep.  658.  9^  ,     ♦v,    v       » 

>  Parsons  on  Contracts.  I.  436,  et  *  Thus  where  the  law  f  or  the  licens- 

,eQ  •  Powers  v.  Skinner,  34  Vt.  274,  ing  of  vessels  required  that  the  oath 

80  Am  Dec   677;  Filson  v.  Himes,  5  of  ownership  should  be  taken  by  the 

Penn   St  452  47  Am.  Dec.  422;  Rose  owner,  an  oath  by  the  master,  acting 

..  Truax".  21  Barb.  (N.  Y.)  361.  as  agent  for  the  owner  is  not  suffi- 

.  Bishop  on  Contracts,  §  487;  Par-  cient.     United  States  t,.  Bartlett,  Day. 

sons  on  Contracts,  I,  486-488.  (U.  S.  D.  C.)  9. 
•See  Lyon  v.  Jerome,   26  Wend.  »9  Co.  76,  ». 

30 


Chap.  II,]  FOR    WHAT    PUBP08B8    OREATBD.  §  'il. 

The  principle  involved  is  the  same  that  controls  the  delegation 
of  authority  by  an  agent  to  a  sub-agent,  and  as  that  subject  will 
be  considered  in  its  proper  place/  no  extended  discussion  will  ba 
given  to  this  title  here. 

>  See  po$t,  chap.  vL 
81 


§42. 


THE   LAW    OF    AGENCY. 


[Book  I. 


CHAPTER    III. 

WHO  MAY  BE  PRINCIPAL  OR  AGENT  ;   AND  HEREIN  OF  JOINT 
PRINCIPALS  AND  AGENTS. 


§  42.  Purpose  of  Chapter. 

I.  Who  mat  be  Principals. 

43.  The  general  Rule— Every  Per- 

son competent  to  act  in  his 
own  Right. 

44.  Same  Subject— Corporations. 

45.  Same  Subject— Partnerships. 
48.  Incompetency — In  general. 

a.  Persona  Naturally  Incompetent. 

47.  Persons  of  unsound  Mind. 

48.  Exceptions— Innocent  Party — 

Sane  Interval. 

49.  Drunken  Persons  as  Principals. 

50.  Same  Subject— Ratification  or 

Disalflrmance. 

6.  Persons  Legally  Incompetent. 

51.  Infants  as  Principals. 

53.  Same  Subject— Ratification  by. 

53.  Further  of  this  Rule. 

54.  Same  Subject  — Dissent — Ex- 

ceptions. 
65.  In  Reason  how. 

56.  Married  Women  as  Principals. 

II.  Who  may  be  Agent. 
a.  Competency  in  General. 

57.  General  Rule— Any  competent 

Person. 

58.  Less    Degree  of    Competency 

required  in  Agent  than  in 
Principal. 

59.  Infants  as  Agents. 


60.  Slaves  as  Agents. 


§  61.  Married  Women  — As    Agents 
for  third  Persons. 

62.  Same  Subject- Wife  as  Agent 

for  her  Husband. 

63.  Husband  as  Agent  for  his  Wife. 

64.  Corporations  as  Agents. 

65.  Partnerships  as  Agents. 

b.  Disqualification  from  Adverse 
Interest. 

66.  One  cannot  be  Agent  if  Duty 

and  Interest  conflict. 

67.  One  cannot  be  Agent  of  both 

Parties — When. 

68.  Cannot  be  Party  and  Agent  for 

opposite  Party. 

III.  Joint  Principals. 

69.  When  Power  of  Appointment 

is  joint. 

70.  Partners. 

71.  Joint  Tenants  and  Tenants  in 

Common. 

72.  Associations,    Clubs,    Societies 

and  Committees. 
78.  Same  Subject — Illustrations. 

74.  Same  Subject— The  Rule  stated. 

75.  Inchoate  Corporations. 

IV.  Joint  Agents. 

76.  Authority  to  Several. 

77.  Private  Agency  must  be  exe- 

cuted by  all, 

78.  Public  Trust  or  Agency  may  be 

executed  by  a  Majority. 


§  42.     Purpose  of  Chapter.     It  is  proposed  in  this  chapter  to 
determine  who  are  competent  to  enter  into  the  relation  of  prin- 

32 


Chap.  III.]  WHO    MAT   BE   PKINCIPAL    OE   AGENT.  §  44 

cipal  and  agent,  and  to  consider  briefly  the  special  rules  which 
apply  to  those  cases  in  which  more  than  one  person  undertakes 
to  act  in  either  capacity. 


WHO  MAT  BE  PEIN0IPAL8. 

§  43.  The  general  Rule— Every  Person  competent  to  act  in  his 
own  Right.  It  may  be  stated  as  the  general  rule  that  by  the 
common  law  every  person  who  is  competent  to  act  in  his  own 
right  and  in  his  own  behalf  may  act  by  an  agent.' 

The  relation,  as  has  been  seen,  is  created  primarily  for  the 
purpose  of  investing  the  agent  with  authority  to  act  for  and 
represent  the  principal  in  the  transaction  of  business.  For  the 
time  and  to  the  extent  limited,  the  agent  is  to  be  the  alter  ego 
of  the  principal;  his  act  is,  in  law,  to  be  the  act  of  the  principal, 
and  the  capacity  and  character  in  which  the  agent  is  to  act  are 
those  of  the  principal.  It  follows,  then,  as  a  necessary  conclu- 
sion, that  the  same  kind  and  degree  of  competency  which  would 
be  requisite  were  the  principal  present  and  acting  in  his  own 
person,  are  necessary  when  he  is  present  and  acts  in  the  person 
of  his  agent. 

The  relation,  too,  between  the  parties,  is,  as  has  been  seen,  so 
far  as  it  is  voluntary,  a  contractual  one,  being  based  upon  the 
express  or  implied  contract  existing  between  the  principal  and 
the  agent.  To  enter  into  this  relation,  therefore,  requires  on 
the  part  of  the  principal,  capacity  to  contract,  and  this  capacity 
must  be,  at  least,  as  great  as  that  which  would  be  requisite  in 
contracts  generally. 

The  converse  of  these  principles,  as  it  finds  expression  in  the 
general  rule  already  given,  also  follows  as  a  necessary  sequence, 
that  he  who  has  this  capacity  and  who  is  thus  competent  to  act 
in  person  in  a  given  case,  may,  unless  restrained  by  some  statu- 
tory prohibition,  act  in  that  case  through  the  agent  of  his  choice. 

§  44.  Same  Subject— Corporations.  Authority  to  appoint  the 
necessary  and  proper  agents  for  the  transaction  of  the  corporate 

*  Coombe'a   Case,    9  Co.   Rep.  76;  "Any  person,  having  capacity  to  cou- 

Com.  Dig.  "  Attorney,"  c.  I.  tract,  may  appoint  an  agent."    Cal. 

In  the  language  of  the  codes  of  Code,  §  2296;  Dak.  Code,  §  1338;  Ga. 

California,     Dakota    and     Georgia,  Code,  §  2181. 

3  33 


§  45.  THE   LAW    OF    AGENCY.  Book  I. 

business  is  usually  conferred  upon  corporations  in  express  terms, 
but  in  the  absence  of  such  express  authority,  the  power  to  ap- 
point will  be  implied.  This  power  is  a  necessary  incident  to  the 
power  to  carry  on  the  business  for  which  the  corporation  was 
created,  inasmuch  as  it  is  only  through  the  employment  of  agent? 
that  the  executive  functions  of  the  corporation  can  be  exercised.' 

§  45.  Same  Subject— Partnerships.  The  same  general  prin- 
ciple applies  to  partnerships.  It  is,  of  course,  competent  for  the 
partners  to  provide  in  their  partnership  articles,  what  agents  shall 
be  employed  and  in  what  manner.  So  all  of  the  partners  acting 
together  may  undoubtedly  appoint  agents  for  a  purpose  or  in  a 
manner  other  than  that  originally  contemplated  or  prescribed. 
And  in  the  absence  of  restrictions  in  the  articles,  each  partner 
also  has  implied  power  to  employ  for  the  firm  such  servants  and 
agents  as  are  necessary  and  proper  for  the  transaction  of  the 
partnership  business.* 

The  appointment  of  an  agent  for  such  purposes  by  one  of  the 
partners  does  not  fall  within  the  limits  of  the  maxim,  Delegatus 
non  potest  delegare,  for  while  each  partner  is  the  agent  of  all  of 
the  other  partners  for  the  transaction  of  the  partnership  business, 
he  is  also  one  of  the  principals  in  the  transaction. 

§  46.  Incompetency— In  general.  Incompetency  to  enter  into 
this  relation  may  arise  either  from  some  defect  in  the  mental 
equipment  of  the  party  or  from  the  operation  of  law.     The 

•  Protection  Life  Ins.  Co.  v.  Foote,  its  creation.     It  must  act  in  this  mode 

79  111.  361;  Hurlbut  «.   Marshall,  63  or  not  at  all." 

Wis.  590;  St.  Andrews  Land  Co.  v.  Extended  citation  of  the  cases  upon 

Mitchell,  4  Fla.   193,  54  Am.  Dec.  this  point  belongs  rather  to  works  on 

340;  Lyman  t>.  White  River  Bridge  Corporations.     See  Morawetz  on  Cor- 

Co.,  3  Aik.   (Vt.)  255,  16  Am.  Dec.  porations,  I,  ^  503;  Ang.  &  Ames  on 

705;  Washburn  v.  Nashville,  &c.,  R.  Corporations,  §  284. 

R.  Co.,  3  Head  (Tenn.),  638,  75  Am.  « Beckham  v.  Drake,  9  M.  &  W.  79; 

Dec,  784.  Banner  Tobacco  Co.  v.  Jenison,   48 

As  is  said  in  Washburn  v.  Nash-  Mich.  459;  Harvey  v.  Mc Adams,  33 

fille,  «&c.,  R.   R.   Co.   supra,  "The  Mich.  472;  Wheatley  t>.  Tutt,  4  Kans. 

corporation  of  necessity  acts  through  340;   Charles  v.   Eshleman,     5    Col. 

the  instrumentality  of  its  officers  and  107;  Frye  v,  Saunders,  21  Kans.  26, 

agents.      If   not  prohibited    by  the  30  Am.   Rep.  421;  Coous  v.  Renick, 

charter,  it  may  delegate  its  authority  11  Tex.  134,  60  Am.  Dec.  230;  Carley 

to  its  officers  and  agents  so  far  aa  may  v.   Jenkins,   46  Vt.    731;    Durgin  v. 

be  necessary  to  effect  the  purposes  of  Somers,    117    Mass.    55;  Burgan    •. 

Lyell,  2  Mich.  103. 

34 


Chap.  III.]  WHO    MAT    BE    PEINCIPAL    OB   AGENT.  §  48. 

former  type  may  be  chronic  or  temporary,  curable  or  incnrable, 
and  may  arise  from  a  variety  of  causes.  This  form  of  incompe- 
tency is  sometimes  termed  natural^  while  that  arising  from  the 
operation  of  the  law  is  termed  legal  incompetency. 

Of  the  first  kind  are  the  defects  of  idiots,  lunatics  and  drnnken 
persons ;  while  aliens,  infants  and  married  women  afford  illustra- 
tions of  the  latter.* 

The  effect  of  some  of  these  forms  of  incompetency,  so  far  as 
they  are  applicable  to  the  law  of  agency,  will  be  noticed  here. 

a.     Persons  Naturally  Incompetent. 

§  47.  Persons  of  unsound  Mind.  It  is  the  general  rule  that 
idiots,  lunatics  and  other  persons  of  unsound  mind,  cannot  ap- 
point an  agent.'  Within  the  operation  of  this  rnle  are  to  be 
included  those  persons  whose  mental  powers  have  been  per- 
manently impaired  by  drunkenness  or  other  cause  attributable  to 
their  own  acts,  as  well  as  those  whose  incapacity  arises  from  the 
act  of  God.* 

§  48.  Exceptions— Innocent  Party — Sane  Interval.  An  in- 
competent person  may,  however,  by  the  decree  of  the  proper 
court,  come  to  sustain,  to  a  limited  extent,  the  relation  of  a  prin- 
cipal, as  by  the  appointment  of  a  guardian  or  committee  whose 
authorized  acts  bind  his  estate.* 

The  general  rule  must,  also,  be  subject  to  the  qualification 
quite  generally  applied  to  other  contracts  with  persons  of  this 
class,  that  where  the  unsoundness  of  mind  is  unknown  to  the 
other  party,  who  has  acted  in  good  faith  and  taken  no  advantage 
of  it,  the  contract  will  not  be  set  aside,  where  it  has  been  executed 
in  whole  or  in  part  and  the  parties  cannot  be  altogether  restored 
to  their  original  situation.' 

«  Ewell's  Evans  on  Agency,  13.  153;  Moss  v.  Tribe,  3  Fost.  «&  F.  397; 

« Story  on  Agency,  §  6.  Young  v.  Stevens,  48  N.  H.   133,    3 

•Bliss  t>.  Railroad  Co..  24  Vt.  424;  Am.    Rep.   203,    97    Am.    Dec.    592; 

Menkins  v.    Lightner,    18    111.    282;  Behrens  v.  McKenzie,  23  Iowa,  333, 

Bush  v.  Breinig.  113  Penn,  St.  310,  92  Am.  Dec.  428;  McCormick  o.  Lil,- 

67  Am.  Rep.  469.  tier,  85  111.    03,    28   Am.    Rep.    GIO; 

<See  Anderson  c.  Estate,  42  Vt,  350,  Fay  v.  Burdilt,  81  Ind.  433,  43  Am. 

1  Am.  Rep.  334.  Rep.  142;  Rusk  v.  Fenton,  14  Bush. 

•Molton  V.  Camroux,  4  Exch.  17;  (Ky.)  490,  29  Am.  Rep.  413;  Wilder 
Beavan  r.  McDonnell,  9  Exch.  309;  c.  Weakley,  34  Ind.  181;  Northwest- 
Campbell  V.    Hooper,  3  Smale  «&  G.  ern  Mut.  F.  Ins.  Co.  v.  Blankenship, 

35 


§^49. 


THE    LAW    OF    AGENCY. 


[Book  I. 


So  the  contract  of  an  insane  person  made  durini^  a  sane  inter- 
val is  binding  upon  him/  and  this  principle  applies  as  well  to 
contracts  of  agency  as  to  others. 

8  49.  Drtinken  Persons  as  Principals.  The  fact  of  being  a 
drunkard,  or  mere  drunkenness  at  the  time,  does  not  of  itself  in- 
capacitate.* There  must  be  drunkenness,  or  the  impairment  of 
intellect  as  the  result  of  drunkenness,  to  such  an  extent  that  the 
person  is  incapable  of  comprehending  the  nature  and  effect  of 
his  act* 

Soher  Interval.  The  contract  of  an  habitual  drunkard,  how- 
ever, is  binding,  if  made  during  a  sober  interval.*  His  contracts 
of  agency,  of  course,  stand  upon  the  same  ground. 

8  50.  Same  Subject— Ratification  or  Disafarmance.  A  con- 
tract made  by  a  party  during  a  period  of  incompetence  may  be 
ratified  or  disaffirmed  by  him  after  his  competency  is  restored.' 
And  this  may  be  done  by  the  incompetent's  guardian  or  commit- 
tee also,*  or  by  his  personal  representative  after  the  incompetent's 


94Ind,  535;  Riggan  f».  Green,  80  N. 
Car.  236;  Copenrath  «.  Kienby,  83 
Ind.  18;  Seals  ».  See,  10  Penn.  St.  56, 
49  Am.  Dec.  573;  Yauger  v.  Skinner, 
14  N.  J.  Eq  389;  Cribben  v.  Max- 
well, 34  Kans.  8,  55  Am.  Rep.  233. 

But  see  Hovey  «.  Hobson,  53  Me. 
461,  89  Am.  Dec.  705;  Gibson  v. 
Soper,  6  Gray  (Mass.),  279,  66 
Am.  Dec.  414;  Bond  «.  Bond, 
7  Allen  (Mass.),  1;  Chew  v.  Bank,  14 
Md.  818;  Rogers  tJ.  Blackwell,  49 
Mich.  192;  Edwards  o.  Davenport,  20 
Fed.  Rep.  756;  Henry  v.  Fine,  23  Ark. 
417. 

*  Tozer  v.  Saturlee,  3  Grant  (Penn.), 
162;  Lilly  t>.  Waggoner,  27  111.  395; 
Beckwith  ©.  Butler,  1  Wash.  (Va.) 
224;  Jones  «.  Perkins,  5  B.  Monr. 
(Ky.)  222;  In  re  Qangwere,  14  Penn. 
St.  417,  53  Am.  Dec.  554. 

•Pickett  c.  Sutter,  5  Cal.  412; 
Henry  v.  Ritenour,  31  Ind.  136;  Caulk- 
ins  «.  Fry,  35  Conn.  170;  Reynolds  e. 
Dechaums,  24  Tex.  174;  Cavender  e. 
Waddingham,  5  Mo.  App.  457;  Joest 
«.  Williams,  42  Md.  565, 13  Am.  Rep. 


877;  Miller  v.  Finley,  26  Mich.  249, 
12  Am.  Rep.  306. 

'Bates  «.  Ball,  72  111.  108;  Van 
Wyck  tJ.  Brasher,  81  N.  Y.  200; 
Schramm  uO'Connor,98  111.  539;Bush 
».  Breinig,  113  Penn.  St.  310,  57  Am, 
Rep.  469. 

« Riteer's  Appeal,  59  Penn.  St.  9. 

•Gibson  c.  Soper,  6  Gray  (Mass.), 
279,  66  Am.  Dec.  414;  Bush  v.  Brei- 
nig, 113  Penn.  St.  310,  57  Am.  Kep. 
469;  AUis  p  Billings,  6  Mete.  (Mass.) 
415,  89  Am.  Dec.  744;  Arnold  ©. 
Richmond  Iron  Works,  1  Gray(Ma38.), 
434;  Carrier  v.  Sears,  4  Allen  (Mass.), 
837;  Howe  t.  Howe,  99  Mass.  98; 
White  «.  Graves,  107  Mass.  328, 
Blakeley  t>.  Blakeley,  33  N.  J.  Eq. 
508;  Nichol  x.  Thomas,  53  Ind.  53; 
Mohr  t.  Tulip,  40  Wis.  82;  Elston  «. 
Jasper,  45  Tex.  409;  Turners  Rusk, 
53  Md.  65;  Northwestern  Mut.  F  Ing, 
Co.  «.  Blankenship,  94  Ind.  535;  Car- 
penter V.  Rodgers,  61  Mich.  384,  1 
Am.  St.  Rep.  595 

•McClain  ».    Davis,    77   Ind.   419; 
Campbell  %.    Kuhn,    45  Mich.     513; 

36 


Chap.  III.]         WHO    MAY    BE   PKINCIPAL    OR    AGENT.  §  51. 

death.'  Upon  this  question,  the  rules  governing  contracts  gener- 
ally apply.* 

h.     Persons  Legally  Incornpetent. 

§  51.  Infants  as  Principals.  It  has  been  regarded  as  the 
settled  doctrine  of  the  law  that  an  infant  cannot  empower  an 
agent  or  attorney  to  act  for  hira.'  Indeed,  the  rule  deduced 
from  the  authorities  has  been  said  to  be  that  the  only  act  which 
an  infant  is  under  a  legal  incapacity  to  perform  is  the  appoint- 
ment of  an  attorney,  or,  in  fact,  an  agent  of  any  kind.*  The 
reason  upon  which  this  rule  depends,  has  been  well  stated  by  the 
learned  editors  of  the  American  Leading  Cases,  as  follows :  "  Tlie 
constituting  of  an  attorney  by  one  whose  acts  are  in  their  nature 
voidable,  is  repugnant  and  impossible,  for  it  is  imparting  a  right 
which  the  principal  does  not  possess, — that  of  doing  valid  acts. 
If  the  acts  when  done  by  the  attorney  remain  voidable  at  the 
option  of  the  infant,  the  power  of  attorney  is  not  operative  ac- 
cording to  its  terms;  if  they  are  binding  upon  the  infant,  then 
he  has  done  through  the  agency  of  another  what  he  could  not 
have  done  directly — binding  acts.  The  fundamental  principle  of 
law  in  regard  to  infants  requires  that  the  infant  should  have  the 
power  of  affirming  such  acts  done  by  the  attorney  as  he  chooses, 
and  avoiding  others,  at  his  option ;  but  this  involves  an  immedi- 
ate contradiction,  for  to  possess  the  right  of  availing  himself  of 
any  of  the  acts,  he  must  ratify  the  power  of  attorney,  and  if  he 

Halley  ».  Troester,  73  Mo.  73;  Moore  Me.  103;  Philpot  c.  Bingham,  55  Ala. 

«.  Hershey.  90  Penn.  St.  196.  435;  Wambole  v.  Foote,   2  Dak.  1; 

'  Campbell  v.  Kuhn,  supra:  Schuff  Fetrow  «.  Wiseman,    40    Ind.    155; 

V.  Ransom,  79  Ind.  458.  Waples  v.   Hastings,  3  Harr.  (Del.) 

•See  Bishop  on  Contracts,  §  974.  403;  Roof  t>.  Stafford.  7  Cow.  (N.  Y.) 

•  Armitaget).  Widoe,  36Mich,  124;  179;    Tapley  ®.   McGee.   6  Ind.  5G; 

Whitney  v.    Dutch,  14  Mass.  457,  7  Flexner  v.  Dickerson,    72  Ala.   318; 

Am.  Dec.  229;  Lawrence©.  McArter,  Carnahan  v.  Alderdice,  4  Hair.  (Del.) 

10  Ohio,  37;  Fonda  ».  VanHorne,  15  99;  Pyle  v.  Cravens,  4  Litt.  (Ky.)  17; 

Wend.  (N.  Y.)  631.  30  Am.  Dec.  77;  Doe  v.  Roberts,  16  M.  &  W.  778;  Bool 

Trueblood  v.  Trueblood,  8  Ind.  195,  «.  Mix,  17  Wend.  (N.  Y.)  120;   Hiest- 

65  Am.  Dec.  756;  Cole  v.  Pennoyer,  and  v.  Kuns,   8  Blackf.    (Ind.)  345; 

14111.  158;  Robbinsc.  Mount,  4  Robt.  Wainwright  e.    Wilkinson,    63   Md. 

(K.  Y.)  553:  Mustard  «.  Woblford's  146;   Deford  v.    State,    30  Md.    200; 

Heirs,    15  Gratt.  (Va.)  839,  70  Am.  Knox  v.   Flack,   33  Penn.    St.   337; 

Dec.  209;   Dexter  v.  Hall,  15  Wall.  Sadler  ®.  Robinson,  3  Stew.  (Ala.)  530. 

(U.  S.)  9;  Bennett  e.  Davis,  6  Cow.  <See  note  to  Tucker  v.  Moreland,  1 

(N.  Y.)  393;  Robinson  e.  Weeks,  56  Am.  Lead.  Cases,  324.     5th  Ed.  280t 


§  52.  THE   LAW    OF    AGENCY.  [Book  L 

ratifies  the  power,  all  that  was  done  under  it  is  confirmed.  If  he 
affirms  part  of  a  transaction,  he  at  once  confirms  the  power,  and 
thereby,  against  his  intention,  affirms  the  whole  transaction. 
Such  personal  and  discretionary  legal  capacity  as  an  infant  is 
v^ested  with  is,  therefore,  in  its  nature,  incapable  of  delegation ; 
and  the  rule  that  an  infant  cannot  make  an  attorney  is,  perhaps, 
not  an  arbitrary  or  accidental  exception  to  a  principle,  but  a 
direct,  logical  necessity  of  that  principle.  But  if  the  considera- 
tions suggested  as  the  foundation  of  this  rule  be  not  satisfactory, 
the  rate  itself  is  established  by  a  conclusive  weight  of  authority.'" 

§  52.  Same  Subject— Ratification  by.  And  upon  the  prin- 
ciple that  one  cannot  subsequently  affirm  what  he  could  not 
previously  have  authorized,  it  has  likewise  been  held  that  an 
infant  cannot  ratify  and  confirm  what  one,  as  an  agent,  has 
assumed  to  do  in  his  name.* 

§  53.  Further  of  this  Rule.  This  rule,  as  has  been  seen,  as 
well  as  the  rule  governing  the  contracts  of  infants  generally, 
finds  its  reason  in  the  law's  desire  to  guard  and  protect  the  inter- 
ests of  the  infant.  Like  other  rules,  its  rigor  should  be  abated 
when  the  necessity  for  it  no  longer  exists. 

It  is  difficult  to  harmonize  all  of  the  cases  upon  this  subject, 
but  an  examination  of  the  facts  of  some  of  the  leading  ones  will 
disclose  the  occasions  upon  which  it  was  invoked,  and  throw 
light  upon  the  limits  of  its  application. 

Thus  it  is  held  that  an  infant's  power  of  attorney  to  sell  his 
lands  ;^  his  warrant  of  attorney  to  confess  judgment  against  him  ;* 
his  assent  to  the  act  of  another  in  assuming  as  the  infant's  agent 
to  sell  his  property ;  *  or  to  bind  him  to  a  purchase  of  real 
estate;*  his  authority  to  another  to  represent  him  in  court;  ^  and 
any  letter  of  attorney  not  conveying  a  present  interest,'  are  void. 

So,  too,  the  rule  has  been  declared  without  limitation  in  many 

'Jd.  247,  5th  Ed.  305.  65  Am.  Dec.  756;  Thompson  t.  Lyon. 

«  Armitage  v.  Widoe,  36  Mich.  124;  20  Mo.  155,  61  Am.  Dec.  599. 

Fonda  v.  Van  Home,  15  Wend.  (N.  *  Bennett  v.  Davis,  6  Cow.  (N.  Y.) 

Y.)  631,  30  Am.  Dec.  77;  Trueblood  393;  Knox  v.  Flack,  22  Penn.  St  337. 

t).  Trueblood,  8  Ind.  195,  65  Am.  Dec.  « Fonda  v.   Van  Home,  15  Wend. 

756;  Doe  v.  Roberts,  16  M.  &  W.  778.  (N.  Y.)  631,  30  Am.  Dec.  77. 

But  see   Ward  v.  Steamboat,  8  Mo.  'Armitage  «.  Widoe,  36  Mich.  124. 

353.  TTapley  v.  McGee,  6  Ind.  56. 

sPhilpot  V.  Bingbam,  55  Ala.  435;  » Lawrence©.  McArter,  10  Ohio,37 
Tmeblood  D.  Trueblood,  8  Ind.   195; 

38 


Chap.    III.]         WHO   MAT    BE    PKINOIPAL   OR   AGENT.  §  55. 

cases  where  it  was  not  necessary  to  the  decision  of  the  case,* 
being  used  merely  by  way  of  illustration  or  asserted  in  order  to 
round  out  some  general  proposition  in  reference  to  the  powers  of 
infants. 

§  54.  Same  Subjeot— Dissent,  Exceptions.  This  unqualified 
statement  of  the  rule,  however,  has  not  been  without  dissent  in 
modern  times,  and  judges  have  in  several  cases  yielded  to  it 
only  upon  the  ground  that  it  was  long  established.' 

So  it  has  been  held  that,  notwithstanding  the  rule,  an  infant 
might  appoint  an  agent  to  do  an  act  unquestionably  to  his  advan- 
tage,^—  as  to  receive  seizin  of  an  estate  conveyed  to  him, —  ano! 
this  exception  is,  in  reason,  undoubtedly  well  founded.* 

So  a  qualified  form  of  agency  may  be  established  by  the 
appointment  by  a  competent  court  of  a  guardian  for  the  infant's 
estate.  And  upon  the  doctrine  of  an  agency,  implied  or  created 
by  law,  an  infant  husband  may  be  bound  for  necessaries  purchased 
by  his  wife.* 

§  55.  In  Reason  how.  The  tendency  of  modern  cases,  al- 
though they  are  by  no  means  harmonious,  has  been  to  regard  all 
contracts  made  by  an  infant,  with  the  exception  of  his  appoint- 
ment of  an  agent,  in  a  more  liberal  spirit,  and  to  treat  them  as 
voidable  merely,  or  if  void  at  all,  as  void  only  in  those  cases 
where  they  cannot  by  any  possibility  be  to  his  advantage.* 

Why  this  exception  of  the  appointment  of  an  agent  should 

*  Of  this  class  are  Cole  v.  Pennoyer;  »  Cantine  v.  Phillips,  5  Harr.  (Del.) 
Robbins  «.    Mount;  Dexter  v.  Hall;      428. 

Robinson  v.  Weeks;  Fetrow  v.  Wise-  'In  1  Am.  Lead.  Cases,  cited  above, 

man;    Flexner  v.   Dickerson  ;    Mua-  the  learned  editors  say:  "The  numer- 

tard  V.    Wohlford's  Heirs;    Roof  v.  ous  decisions  which  have  been  had  in 

Stafford;  Fonda  «.  Van  Home;  Bool  this  country  justify  the  settlement  of 

V.    Mix;   Heistand  v.  Kuns;   Harner  the  following  definite  rule  as  one  that 

V.  Dipple;  and  others  cited  in  §  51,  is  subject  to    no    exceptions.     The 

supra.  only  contract  binding  on  an  infant  is 

2  See  Philpot  v.  Bingham,  55  Ala.  the  implied  contract  for  necessaries. 
435;  Fetrow  «.  Wiseman,  40  Ind.  155;  The  only  act  which  he  is  under  a 
Hardy  v.  Waters,  38  Me.  450.  legal  disability  to  perform  is  the  ap- 

3  Whitney  v.  Dutch,  14  Mass,  457;  pointment  of  an  attorney.  All  other 
7  Am.  Dec.  229;  Tucker  v.  Moreland,  acts  and  contracts,  executed  or  exe- 
10  Pet.  (U.  S.)  58.  cutory,  are  voidable   or  confirmable 

*  Patterson  v.  Lippincott,  47  N.  J.  by  him  at  his  election."  See  also 
L.  457,  54  Am.  Rep.  178.  Bishop  on  Contracts,  Ed.  1887,  §917- 

935. 
39 


§  56.  THE    LAW    OF   AGENCY.  [Book  1. 

exist  is  not  made  clear  by  the  authorities,  nor  is  any  sufficient 
reason  apparent.'  Indeed  no  satisfactory  reason  is  perceived  why 
the  rule  might  not  well  be  that,  within  the  limits  within  which 
he  may  bind  himself  by  his  contracts,  he  may  also  bind  himself 
by  the  intervention  of  an  agent  appointed  by  him  for  that  purpose. 
Notwithstanding  this,  however,  the  rule  of  disability,  is,  as  has 
been  seen,  firmly  established  in  our  law. 

§  56.  Married  Women  as  Principals.  As  at  the  common 
law,  a  married  woman  was  incapable  of  entering  into  contracts, 
she  could  not  act  by  agent;*  but  under  the  modern  statutes 
removing  her  disabilities,  at  least  so  far  as  her  sole  property  is 
concerned,  she  may  undoubtedly  appoint  an  agent  to  represent 
her  in  dealing  with  those  matters  in  reference  to  which  she  is 
herself  competent  to  act'  In  this  respect,  her  competency  is  co- 
extensive with  her  right  to  act  as  feme  sole.  Her  capacity  to 
contract,  however,  is  purely  statutory,  and  she  cannot  confer 
upon  her  agent  any  greater  powers  than  she  might  herself  exer- 
cise in  the  premises.  Her  agent,  therefore,  can  bind  her  only 
while  acting  within  the  limits  fixed  to  her  capacity.* 

The  appointment  of  an  agent  by  a  married  woman  may  be 
made  in  the  same  manner  as  by  any  other  principal,  and  when 
appointed  the  same  legal  consequences  and  effects  result  from  the 

*Harner«,  Dipple,  31  Ohio  St.  73,  103  Mass.   563;  Moley  f>.  Brine,  130 

27  Am.  Rep.  496;  Patterson  p.  Lippia-  Mass.  334. 

cott,  47  N.  J.  L.  457,   54  Am.   Rep.  « Weisbrod    v.     Chicago,   »&c.   Ry, 

178;  Cumming8«.  Powell.  8Tex.  80.  Co.   18  Wis.   35,   86  Am.  Dec,  743; 

See  Bishop  oa  Contracts,  New  Ed.  Dorrance  «.  Scott,  3  Whart.  (Penn.) 

§930,  where  the  learned  author  says:  313,   31  Am.   Dec.  509;   Caldwell  e. 

•'In  reason,  we  shall  find  it  difficult  "Waters,18Penn.St.79,55Am.Dec.5a3; 

to  see  why  an  infant,  a  person  of  im-  Marshall  v.  Rutton,8T.  R.  545;  Lewis 

perfect  capacity,  cannot  as  validly  act  e.  Lee,  3  B.  «&  C.  291;  Fairthorne  e. 

through  another  whose  capacity  has  Blaquire,  6M  &  S.  73;  Story  on  Agen- 

become  perfected  by  age,  and  there-  cy,  §6;  Schouler,  Dom.  Rel.  §53. 
fore  presumably  furnishing  a  sort  of         '  Weisbrod  v.  Chicago,  &c.  Ry.  Co. 

protection,   as  by  his  sole  and  un-  «Mjt>ra;  McLaren*.  Hall,  26 Iowa.  897; 

guarded  self,"  and  he  refers  to  Whit-  Knapp  v.  Smith,  27  N.  Y,  277;  Wood- 

ney  v.  Dutch,  and  Bool  v.  Mix,  cited,  worth  v.  Sweet,  51  N.  Y.  8:  Rowell  v. 

iupra.     See  also  remarks  of  Holmes,  Klein,  44  Ind.   290.     See  cases  cited 

J.  in  Fairbanks  c.  Snow,  145  Mass.  in  §  62,  post. 

153,  1  Am.  St.  Rep.  446,  citing  Whit-  *  Kenton  Insurance  Co.  «.  McClel- 

ney  c.  Dutch,  «tfpra/ Welch  ».  Welch,  Ian,  43  Mich.  564;  Nash  v.  Mitchell, 

71  N.  Y.  199.  27  Am.  Rep.  38. 

40 


Chap.  III.]         WHO    MAY    BE    PRINCIPAL   OB   AGENT.  §  58. 

relation  which  would  flow  from  the  appointmeat  bj  any  other 
principal  of  like  capacity.* 

n. 

WHO   MAT   BE   AGENTS. 

a.     Competency  in  General. 

§  57.  General  Rule  — Any  compotent  Person.  Any  person 
who  has  sufficient  capacity  to  act  for  himself  is  also  competent 
to  act  as  the  agent  of  another.*  But,  subject  to  limitations  here- 
after to  be  stated,  the  rule  may  be  given  a  broader  scope,  for  it 
is  certain  that  many  persons  who  have  not  the  capacity  in  law  to 
act  in  their  own  right  and  in  their  own  behalf,  may  act  as  agents 
for  another,  and  in  the  language  of  a  recent  case,  it  may  be  said, 
that  any  person  may  be  an  agent,  except  a  lunatic,  imbecile  or 
child  of  tender  years.'  Hence  monks,  infants,  feme  coverts, 
persons  attainted,  outlawed  or  excommunicated,  slaves  or  villeins, 
and  aliens,  have  been  held  competent  to  act  as  agents.* 

§  58.  Less  Degree  of  Competency  required  in  Agent  than  in 
Principal.  It  will  be  seen  from  this  statement  of  the  rule  that  a 
less  degree  of  competency  is  required  in  an  agent  than  in  the 
principal.  The  reason  for  this,  in  certain  cases,  is  apparent. 
Many  persons  are,  in  fact,  competent  to  execute  what  they  would 
be  incompetent  to  conceive  or  direct;  and,  in  law,  a  person  may 
be  the  donee  of  a  power  which  he  had  not  the  legal  capacity  to 
create.* 

The  degree  of  competency  required  depends,  of  course,  upon 
the  nature  of  the  duty  to  be  performed.  Thus  the  performance 
may  demand  the  exercise  of  powers  ranging  in  degree  from  the 
purely  mechanical,  up  through  the  ministerial,  to  those  involving 
the  highest  degree  of  judgment,  wisdom  and  experience.  A 
child  may  carry  a  message  or  deliver  a  deed  as  safely  and  cer- 
tainly, perhaps,  as  a  person  of  mature  years,  for  the  execution  of 

•  See  cases  cited  in  §  63,  post.  *  Ewell's  Evans*  Agency,  17;  Whar- 
«  Lea  V.  Bringier,  19  La.  Ann.  197;      ton,  Agency,  §14,  and  see  cases  cited 

Wharton,  Agency,  §  13.  in  sections  following. 

•  Lyon  V.  Kent,  45  A.la.  658.  "Any  »See  Weisbrod  v.  Chicago,  &c.  Ry. 
person  may  be  an  agent. "  Cal.  Code  Co.  18  Wis.  35,  86  Am.  Dec.  743; 
§2296;  Dak.  Code,  §1338.  Bac.  Abr.  'Authority,"  B. 

41 


'  §  59.  THE    LAW    OF   AGENCY.  [Book  I. 

this  duty  requires  only  the  simplest  mechanical  powers ;  but  the 
transaction  of  important  affairs  of  business,  involving  the  exer- 
cise of  judgment  or  discretion,  cannot  be  entrusted  to  children. 
Agency,  as  has  been  seen,  properly  implies  the  exercise,  on  the 
part  of  the  agent,  of  more  or  less  discretion  and  judgment,  and 
no  one,  who  does  not  possess  these  faculties,  can  fulfill  the  higher 
functions  of  an  agent. 

It  is  obvious,  therefore,  that  while  a  person  not  competent  to 
act  as  principal  may,  in  many  cases,  assume  the  duties  of  an 
agent,  the  relation  is  one  sub  modo  only,  partaking  more  largely 
of  the  nature  of  service  than  of  agency. 

At  first  view,  the  question  of  the  agent's  competency  may, 
perhaps,  appear  to  be  of  interest  chiefly  to  the  principal, — that 
if  the  principal  is  satisfied  with  the  agent's  ability,  no  one  else 
has  occasion  to  complain.  But  a  moment's  consideration  will 
demonstrate  that  this  is  not  always  so.  For  although  the  princi- 
pal who  has  seen  fit  to  employ  an  agent  known  by  him  to  be  in- 
competent, ought  not  to  be  heard  to  complain  that  he  has  received 
incompetent  service,  third  persons  who  may  suffer  from  the  same 
cause,  may  well  hold  the  principal  to  account.  And  where  the 
law  imposes  upon  any  person,  the  performance  of  a  duty  to  indi- 
viduals or  the  public,  he  must  see  to  it  that  it  is  performed,  and 
he  cannot  escape  responsibility  by  delegating  it  to  an  agent.' 

§  59.  Infants  as  Agents.  It  has  been  seen  that  an  infant  can- 
not appoint  an  agent ;  an  infant,  however,  above  the  age  of  seven 
years  may  be  an  agent,  in  the  absence  of  statutory  prohibitions." 

This  rule  must  be  qualified  by  the  considerations  contained  in 
the  preceding  section.  The  duty  to  be  undertaken  must,  at  least 
so  far  as  the  rights  of  third  persons  are  involved,  be  one  in  keep- 
ing with  the  age,  capacity  and  experience  of  the  infant. 

It  is  evident,  also,  that  the  relation  between  a  principal  and  his 
infant  agent  is  not  a  perfect  one,  for  though  the  infant  may  bind 
his  principal  by  his  acts,  and  though  the  principal  is  bound  by  his 
contracts  with  the  infant,  the  infant  himself  is  incapable  of  being 
bound  to  the  principal  by  the  express  or  implied  contractual  ob- 
lio-ations  which  an  adult  agent  would  assume  under  like  circura- 

iBee  j9os<,  §  747.  (Ky.)  436,  10  Am.  Dec.  74T;  Ewell's 

•Talbot  V.  Bowen,  1  A.  K.  Marsh.       Evans'  Agency,  17. 

42 


Ohap.   III.]         WHO   MAT    BE    PRINCIPAL    OR    AGENT.  §  61. 

stances.'  Neither  does  such  a  relation  afford  to  third  persons 
who  may  deal  with  the  infant  agent,  that  protection  which  would 
be  insured  to  them  if  the  agent  were  sui  juris  ;  for  it  would  not 
be  contended,  for  example,  that,  in  the  absence  of  fraud,  the  in- 
fant would  be  bound  by  an  implied  warranty  of  authority,  or  that, 
failing  to  bind  his  principal,  he  bound  himself. 

§  60.  Slaves  as  Agents.  So  during  the  existence  of  slavery, 
it  was  held  that  a  slave  might  act  as  agent.' 

§  61.  Married  Women— A8  Agents  for  third  Persons.  Not- 
withstanding her  incapacity  to  appoint  an  agent,  a  married  woman 
might,  at  common  law,  be  the  agent  of  third  persons,"  even  in 
their  dealings  with  her  husband.*  Her  capacity  in  this  respect, 
however,  like  that  of  other  persons  not  competent  to  contract 
generally,  was  necessarily  a  limited  one,  as  the  married  woman 
was  incapable  of  assuming  the  reciprocal  liabilities  and  obligations 
which  the  perfect  relation  imposes  upon  the  agent,*  and  as  her 
duties  to  her  husband  and  her  family  rendered  her  assumption  of 
many  undertakings  impossible. 

The  effect  of  the  modern  statutes  has  been  to  enlarge  this  lim- 
ited capacity  according  as  they  have  enlarged  her  capacity  to 
deal  as  ?ifeme  sole,  and  where  the  removal  of  her  disabilities  is 
complete,  or  where  with  the  consent  of  her  husband  or  of  the 
law,  she  is  competent  to  carry  on  business  as  a  feme  sole^  her 
capacity  to  bind  herself  to  the  same  extent  by  all  of  the  obliga- 
tions of  an  agent  would  seem  to  be  a  necessary  consequence.* 

*  See  Derocher  v.  Continental  Mills,  worth  v.  Hart,  23  Ala.  343;  Goodwin 
58  Me.  217,  4  Am.  Rep.  286;  Gaffney  «.  Kelly, 43  Barb.  (N.  Y.>  194;  Gray  v. 
V.  Hayden,  110  Mass.  137,  14  Am.  Otis,  11  Vt.  628;  Sawyer  t).  Cutting, 
Rep.  580;  Widrig©.  Taggart,  51  Mich.  23  Vt.  486;  White  v.  Oeland,  13  Rich. 
103;  Wbitemarsh  v.  Hall,  8  Den.  (N.  (S.  C.)  308. 

Y.)  376;  Vent  v.   Osgood,   19  Pick.  <  Story  on  Agency,  §7. 

(Mass.)  572;  Lufkin  v.  Mayall,  25  N.  »See  Tucker  v.  Cocke,  33  Miss.  184; 

H.   82;  Robinson  «.   Weeks  56  Me.  Carleton  v.  Haywood,  49  N.  H.  314. 

103.  « See  cases  cited  in  note  2  to  §  63, 

'Governor  ®.   Daily,    14  Ala.  469;  post.      Many    interesting     questions 

Powell  V.  State,  27  Ala.  51 ;  Lyon  v.  arise  in  connection  with  this  subject, 

Kent,  45  Ala. 656;  Chastain  v.   Bow-  which  are  not  yet  determined,  as  for 

man,  1  Hill.  (S.  C.)  370.  example:      How    far    is    a  married 

*  Hopkins  v.  Mollinieux,  4  Wend.  woman  acting  as  agent  for  her  hus- 
(N.  Y.)  465;  Singleton  ».  Mann,  3  Mo.  band  or  for  a  third  person,  bound  by 
464;  Butler  v.  Price,  110  Mass.  97;  an  implied  or  express  warranty  of  her 
McKeet.  Kent,  34  Miss.   131;  Whit-  authority?    What  if  she  exceeds  her 

43 


§62. 


THE    LAW    OF    AGENCY. 


[Book  I. 


§  62.  Same  Subject— Wife  as  Agent  for  her  Husband.  Both 
at  the  common  law  and  under  the  modern  statutes,  the  wife  may 
be  the  agent  of  her  husband.  This  agency  may  be  of  two  kinds : 
1.  That  which  the  law  creates  as  the  result  of  the  marriage  re- 
lation, by  virtue  of  which  the  wife  is  authorized  to  pledge  her 
husband's  credit  for  the  purpose  of  obtaining  those  necessaries 
which  the  husband  himself  has  neglected  or  refused  to  furnish ; 
and,  2.  That  which  arises  from  the  authority  of  the  husband,  ex- 
pressly or  impliedly  conferred  as  in  other  cases. 

The  wife  has,  by  virtue  of  the  marriage  relation  alone,  no 
authority  to  bind  her  husband  by  contracts  of  a  general  nature, 
and  her  authority  of  the  kind  first  mentioned  is  limited  in  its 
nature  and  extent  by  the  legal  requirements  fixed  for  its  creation, 
of  the  existence  of  which  those  persons  who  assume  to  deal  with 
her  must  take  notice  at  their  peril.'     The  full  consideration  of 


authority?  What  if  she  conceals  her 
principal?  What,  if  intending  to 
bind  her  principal,  she  so  executes  a 
•written  contract,  as,  in  form,  to  bind 
herself.  How  far  may  she  assume 
responsibility  as  an  agent  to  third  per- 
sons without  her  husband's  consent? 
Upon  this  point,  see  Pullman  v.  State, 
78  Ala.  81. 

'  Clark  t».  Cox,  33  Mich.  204;  Eames 
©.  Sweetser,  101  Mass.  78;  Raynes  v. 
Bennett,  114  Mass.  424;  Manby  «. 
Scott,  1  Mod.  125;  Morrison  v.  Holt, 
42  N.  H.  478,  80  Am.  Dec.  120;  Ben- 
jamin v.  Benjamin,  15  Conn.  347,  39 
Am.  Dec.  384. 

"A  wife,  as  such,"  says  Storrb,  J. 
In  the  case  last  cited,  "has  no  orig- 
inal or  inherent  power  to  make  any 
contract,  which  is  obligatory  on  her 
husband.  No  such  right  arises  from 
the  marital  relation  between  them. 
If,  therefore,  she  possesses  a  power 
in  any  case,  to  biod  him,  by  her  con- 
tracts made  on  his  behalf,  it  must  be 
by  virtue  of  an  authority  derived 
from  him,  and  founded  on  his  assent 
— although  such  assent  may  be  pre- 
cedent or  subsequent,  and  express  or 
implied;  and  this  is  the  light  in  which 


such  contracts  are  universally  viewed. 
When  such  authority  is  conferred, the 
relation  between  them  and  the  conse- 
quences of  that  relation,  are  analo- 
gous to  those  in  the  ordinary  case  of 
principal  and  agent.  And  that  she 
has  the  capacity  to  be  constituted,  by 
the  husband,  his  agent,  and  to  act  as 
such,  equally  with  any  other  person, 
there  is  no  doubt.  In  Fitz.  N.  B. 
120.  G,  the  law  is  thus  laid  down: 
'A  man  shall  be  charged  in  debt  for 
the  contract  of  his  bailiff  or  servant, 
where  he  giveth  authority  unto  the 
bailiff  or  servant  to  buy  or  sell  for 
him :  and  so  the  contract  of  the  wife, 
if  he  give  such  authority  to  his  wife, 
otherwise  not.'  In  Manby  v.  Scott,  1 
Mod,  125,  it  is  said,  by  Mr.  Justice 
Hyde,  that  *Sifem6  c<?»er<  cannot  bind 
or  charge  her  husband,  by  any  con- 
tract made  by  her  without  the  author- 
ity or  assent  of  her  husband,  preced- 
ent or  subsequent,  express  or  im- 
plied.' 

"The  law  on  this  subject  is  stated 
with  great  clearness  and  precision,  by 
Selwyn,  in  his  Nisi  Prius,  page  288, 
where  he  treats  of  the  liability  of  the 
husband  as  to  contracts  made  by  the 


44 


Chap.  III.]         WHO   MAY   BE   PRINCIPAL   OE   AGENT. 


§62. 


this  question  belongs  properly  to  a  treatise  upon  the  marriage 
relation.* 

Agencies  of  the  second  class  rest  upon  the  same  considerations 
which  control  the  creation  and  existence  of  the  relation  between 
other  persons.  The  wife  may  be  either  the  general  or  the  special 
agent  of  her  husband  by  virtue  of  his  authorization,  and  this 
authorization  may,  as  in  other  cases,  be  express  or  implied ; 
and  may  be  conferred  by  specialty  or  by  parol;  or  by  preced- 
ent or  subsequent  ratification.*  Her  authority  in  this  case, 
however,  when  implied,  is  to  be  implied  from  acts  and  conduct, 
and  not  from  her  position  as  wife  alone;  and  when  based  upon 
subsequent  ratification,  is  to  be  established  by  other  evidence 
than  that  alone  which  is  incident  to  the  relation  of  the  parties. 
But  when  the  agency  is  found  to  exist,  the  wife  may  bind  her 
husband-principal  to  the  same  extent  and  in  the  same  manner 


•wife  during  coverture.  After  stating 
that  the  relation  of  husband  and  wife 
,  is,  in  respect  of  the  wife's  contracts, 
binding  the  husband,  analogous  to 
the  relation  of  master  and  servant,  he 
says:  'Indeed,  in  contemplation  of 
law,  the  wife  is  the  servant  of  the 
husband;'  and  after  citing  the  above 
passage  from  Fiizherbert,  he  says: 
'From  this  passage  it  appears  that  the 
husband  is  not  liable  to  his  wife's 
contracts,  unless  he  has  given  his 
authority  or  assent;'  and  adds,  'it  is 
incumbent,  therefore,  on  a  creditor, 
who  brings  an  action  against  a  hus- 
band upon  a  contract  made  with  his 
wife,  to  show,  that  the  husband  has 
given  such  assent,  or  to  lay  before  a 
jury  such  circumstances  as  will 
enable  them  to  presume,  that  such 
assent  has  been  given;  and  in  the 
latter  case,  if  such  presumption  is 
not  rebutted  by  contrary  evidence, 
the  jury  may  find  against  the  hus- 
band, but  not  otherwise;  for  the  wife 
has  not  any  power  originally  to 
charge  the  husband.'  " 

'See    Stewart    on    Husband    and 
Wife,   §§  89-98;  Bishop  on  Married 


Women,  Chap.  30;  Schouler  on  Hus- 
band and  Wife. 

» Cox  V.  Hoffman,  4  Dev.  &  Batt. 
(N.  C.)  180;  McKinley  v.  McGregor, 
8  Whart.  (Penn.)369;  Camerlin*.  Pal- 
mer Co.,  10  Allen  (Mass.),  639;  Pick- 
ering V  Pickering,  6  N.  H.  124; 
Abbott  V.  McKinley,  2  Miles  (Penn.), 
220;  Gray  v.  Otis,  11  Vt.  628;  Miller 
e.  Delaraater,  12  Wend.  (N.  Y.)  433; 
Mlckelberry  v.  Harvey,  58  Ind.  523; 
Heny  v.  Sargent,  54  Cal.  396;  Pull- 
an  V.  State,  78  Ala.  31;  Ladd  v. 
Newell,  34  Minn.  107;  Harper*.  Dail, 
92  N.  C.  394;  Lang  v.  Waters,  47  Ala. 
624;  Felker  v.  Emerson,  16  Vt.  633; 
42  Am.  Dec.  532;  Cantrell  v.  Colwell, 
3  Head.  (Tenn.)  471;  Edgerton  v. 
Thomas,  9  N.  Y.  40;  Knapp  v.  Smith, 
27  N.  Y.  277;  Buckley  v.  Wells,  33 
N.  Y.  518;  Singleton  «.  Mann.  3  Mo. 
465;  Weisbrod  v.  Chicago,  &c.  Ry. 
Co.  18  Wis.  35,  86  Am.  Dec.  743; 
SimsB.  Smith,  99  Ind,  469;  50  Am. 
Rep.  99;  Martin  v.  Rector,  101  N.  Y.  77; 
Penn  v.  Whiteheads.  12  Gratt.  (Va.) 
74;  Miller  v.  Watt.  70  Ga.  385;  Vail  v. 
Meyer,  71  Ind.  159;  Porter  v.  Haley, 
65  Miss.  66;  Louisville  Coffin  Co.  «. 
Stokes,  78  Ala.  372. 


45 


§  63.  THE    LAW    OF    AGENCY.  [Book  I. 

as  any  other  agent   might   bind    him  under  the  same  circum- 
stances; 

How  far  the  relation  of  agent  of  her  husband  may  impose  upon 
the  wife  duties  and  obligations  to  third  persons  with  whom  she 
deals,  is  a  question  suggested  in  the  preceding  section.  How  far 
the  same  relation  may  impose  upon  her,  contract  obligations  to 
her  husband  is  a  question  which  belongs  rather  to  a  treatise  upon 
their  mutual  rights  and  duties  than  to  this. 

§  63.  Husband  as  Agent  for  his  Wife.  It  has  been  seen  that 
within  the  limits  of  her  power  to  enter  into  contracts,  a  married 
woman  may  act  by  agent,*  and  it  is  well  settled  that  her  husband 
may  be  the  agent.  A  husband  "has,  by  virtue  of  his  relation 
alone,  no  implied  power  to  act  as  the  agent  of  his  wife  in  the 
transaction  of  her  business.'  Whatever  authority  he  exercises 
in  that  capacity  must  be  derived  from  her  prior  appointment  or 
subsequent  ratification.  He  may,  however,  be  authorized  in  the 
same  manner  and  be  invested  with  the  same  power  and  authority 
as  any  other  agent,  and  when  duly  authorized  his  acts  bind  her, 
within  the  limits  of  her  capacity,  to  the  same  extent  as  though 
she  acted  in  person.* 

But  because  of  the  relation  existing  between  them  and  of  the 

*  Ante,  §56.  Mass.   5o4;  Lavassar  e.  Washburne, 

«  Price  V.  Seydel.  46  Iowa,  696;  Mc-  50  Wis.  200;  Griffin  v.    Ransdell.  71 

Larea  v.  Hall,  26  Iowa,  297;  Andei^  Ind.  440;   Cubberly  »,    Scott,  98  111. 

fion  V.  Gregg,  44  Miss.  170;  Crawford  88;  Bennett  v.  Stout,  98  111.  47;  Bax 

V.  Redus,  54  Miss.  700.  ter  b.  Maxwell  (Penn.),    8  Atl.  Rep. 

3  Rankin  e.    West,   25  Mich.  195;  581;  Foster  t>.  Jones  (Ga.),  1  South  E. 

Wortman  t>.  Price,  47  111.  22;  Haight  Rep.  275. 

«.  McVeagh,  69  111.    624;   Walker®.  Authority    given    by     a     married 

Carrington,  74  111.  446;  Patten  c.  Pat-  woman  to  her  husband  to  sign  her 

ten,  75  111.  446;  Austin  v.  Austin,  45  name  as  surety  for  his  benefit  does 

Wis.   523:    Louisville  Coffin  Co.   e.  not  include  authority    to    sign    her 

Stokes,    78    Ala.    372;    Hamilton  «.  name  as  principal.     Farmington  Sav- 

Hooper,  46  Iowa,  515,    26  Am.  Rep.  ings  Bank  v.   Buzzell,  61  N.  H.  612. 

161;  McLaren  B.  Hall,  26  Iowa,   297;  Nor  will   authority   to   manage  her 

Rowell  V.  Klein,  44  Ind.  290;  Weis-  plantation  authorize  him  to  bind  her 

brod  V.  Chicago,  «fec.  Ry  Co.  18  Wis.  by    negotiable    paper.       Folger      t. 

85,  86  Am.  Dec.  743;  McBaint).  Selig-  Peterkin,  La.  2  South.  Rep.  579. 

man,  58  Mich.  294;  Eystra  t).  Capelle,  The  fact  of  the  husband's  agency 

61  Mo.  580;  Rodgers  v.  Pike  County  for  his  wife  can  not  be  established  by 

Bank,  69  Mo.  562;   Arnold  ■».   Spurr,  his  declarations.     Sanfordu  Pollock, 

130  Mass.  347;  Jones  o.   Read,   1  La.  105  N.  Y.  450;  Jarvis  v.  Schaefer,  — 

Ann.    200;    Coolidge    v.    Smith,  129  Y.  — ,  11  North  E.  Rep.  634. 

46 


Chap.  III.]         WHO   MAT   BE   PKmCIPAL    OE   AGENT.  §  65. 

opportunities  which  it  affords  for  coercion  and  evasion,  it  is  held 
that  the  evidence  of  his  agency,  whether  it  is  sought  to  be  estab- 
lished by  the  wife's  prior  appointment  or  her  subsequent  ratifi- 
cation, must  be  clear  and  satisfactory,  and  suflSciently  strong  to 
explain  and  remove  the  equivocal  character  in  which  the  wife  is 
placed.' 

§  64.  Corporations  as  Agents.  Within  the  scope  of  its  cor- 
porate powers,  unless  there  are  express  provisions  in  its  charter 
or  constating  instruments  to  the  contrary,  a  corporation  may  act 
as  agent,  either  for  an  individual,  a  partnership  or  another  cor- 
poration.* Many  of  the  great  corporations  of  the  country  are 
organized  for  this  express  purpose  under  statutes  or  charters 
conferring  and  defining  their  powers  and  the  methods  of  execut- 
ing them ;  but  even  in  other  cases,  authority  so  to  act  might  be 
implied  as  auxiliary  to  their  main  purposes. 

§  65.  Partnerships  as  Agents,  And  the  same  rule  applies  to 
the  case  of  partnerships.  They  may  be  organized  expressly  for 
that  purpose,  or  they  may,  within  the  limits  of  their  powers, 
undertake  to  act  as  agent  as  an  incident  to  their  general  business. 
Where  authority  is  thus  delegated  to  a  firm,  it  is  an  appointment 

1  Rowell  V.  Klein,  44  Ind.  290;  Mc-  ent),  the  wife  is  under  the  control  of, 

Laren  c.  Hall,  26  Iowa,. 297;  Eystra  v.  and  subordinate  to,  the  husband;  and 

Capelle,  61  Mo,  578;  Mead  ».  Spald-  neither  good  law  nor  sound  reason 

ing,  —  Mo.  — ,  12  West.  Rep.  405.  will  require  the  wife  to  destroy  the 

In  McLaren  v.  Hall,  supra,  Cole  J.  peace  of  her  family  and  endanger  the 
says,  at  page  305;  "the  husband  may  marriage  relation  by  open  repudia- 
act  as  agent  for  the  wife.  In  order  tion  or  hostile  conduct  toward  her 
to  bind  her,  however,  he  must  be  husband,  in  order  to  save  her  prop- 
previously  authorized  to  act  as  her  erty  from  liability  for  his  unauthor- 
agent,  or  she  must  subsequently  with  ized  contracts.  Of  course  it  is  neces- 
express  or  implied  knowledgeof  his  sary  in  every  case,  in  order  to  bind 
act,  ratify  it.  The  evidence  neces-  her  that  he  should,  at  least,  claim  to 
sary  to  establish  a  ratification  by  the  act  as  her  agent;  and  her  ratification 
wife,  of  a  contract  made  by  her  hus-  should  be  shown  by  those  unmistak- 
band  as  her  agent,  must  be  of  a  able  acts  or  declarations  which  evince 
stronger  and  more  satisfactory  char-  a  knowledge  of  the  contract  by  which 
acter  than  that  required  to  establish  a  she  is  sought  to  be  bound,  and  an  in- 
ratification  by  the  husband  of  the  act  tention  to  adopt  or  ratify  it  as  her 
of  the  wife  as  his  agent,  or  than  as  own."  See  also  Sanford  v.  Pollock, 
between  independent  parties.  And  105  N.  Y.  450. 
this  for  the  reason  that,  (in  the  gen-  « McWilliama  «.  Detroit  Mills  Co. 
eral  experience  of  the  past,  at  least,  31  Mich.  275. 
if  not  in  the  philosophy  of  the  pres- 

47 


g  66.  THE    LAW    OF   AGENCY.  [Book  I. 

of  the  partnership  as  the  agent,  and  not  of  the  individual  mem- 
bers as  several  and  separate  agents.  Hence  in  the  absence  of 
anything  to  show  a  contrary  intent,  either  partner  may  execute 
the  power,  and  the  act  of  one  is  the  act  of  the  partnership  and  is 
in  strict  pursuance  of  the  power.* 

h.     Disqualification  from  adverse  Interest. 

^QQ.  One  cannot  ba  Agent  if  Duty  and  Interest  conflict. 
A  person  will  not  be  permitted  to  take  upon  himself  the  charac- 
ter of  an  agent,  where  on  account  of  his  relation  to  others,  or  on 
account  of  his  own  personal  interest,  he  would  be  compelled  to 
assume  incompatible  and  inconsistent  duties  and  obligations.  An 
agent  owes  to  his  principal  a  loyal  adherence  to  his  interests,  and 
it  would  be  a  fraud  upon  the  principal  and  would  contravene 
the  public  policy,  to  permit  an  agent,  without  the  full  knowledge 
and  consent  of  his  principal,  to  enter  into  a  relation  involving 
such  a  duty,  when  his  allegiance  had  already  been  pledged  to  one 
having  adverse  interests,  or  when  his  own  personal  interests 
would  be  antagonistic  to  those  of  his  principal." 

§  67.  One  cannot  be  Agent  of  both  Parties— When.  A  per- 
Bou  may  act  as  agent  of  two  or  more  principals  in  the  same 
transaction,  if  his  duties  to  each  are  not  such  as  to  require  liira 
to  do  incompatible  things ;  *  but  wherever  from  the  nature  of  his 
employment,  each  of  two  principals  with  opposing  interests  is 
entitled  to  the  benefits  of  the  agent's  judgment,  discretion  or 
personal  influence,  he  will  not  be  permitted  to  act  as  agent  of 
both  parties,  except  with  their  full  knowledge  and  consent.*     If, 

» Deakin  ».  Underwood,   87  Minn.  Halliday,  59  111.  176;  Sheperd  v.  Lan- 

98,  5  Am.  St.  Rep.  827;  Eggleston  «.  fear,    5   La.    886,   25  Am     Dec.   181; 

Boardmrtn,  37  Mich.  14.  Northrup  v.  Germania  Fire  Ins.  Co. 

•  See  Rice  t>.  Wood.  113  Mass.  133,  48  Wis.  420.  33  Am.  Rep.  815. 
18  Am.  Rep.  459;  Raisin  t).  Clark,  41  <  Hinckley  v.   Arey,    supra;  Copo- 

Md.  158,  20  Am.  Rep.  66;  Scribner  e.  land  ».  Mercantile  Ins.    Co.    6   Pick, 

Collar,  40  Mich.   375,    29  Am.  Rep.  (Mass.)  197;   New  York   Ins.  Co.  v. 

541;  Lynch  v.  Fallon,  11  R  I.  811,  23  National  Ins.  Co.  14  N.  Y.  85;  Meyer 

Am.  Rep.  458;  Bell  «.  McConnell,  87  c   Hanchett,   39    Wis.    419,    S.  C.  43 

Ohio,  St.  396,  41  Am.  Rep.  528;  and  Wis.  246;  Greenwood  v.   Spring,   54 

see  generally  cases  cited  in  following  Barb.  (N.   Y.)  375,   Sumner  v.  Cbar- 

sections.  loite,   &c.    R.    R.    Co.    78  N.  C.  289; 

'Hinckley  e.  Arey,    27    Me.    862;  Shirland  v.  Monitor  Iron  Works,  41 

Scott  t>.  Mann,36  Tex.  157;  Cottom  «.  Wis.   162;  Bray  v.   Morse,  41    Wia. 

48 


Chap.  III.] 


JOINT   PRINCIPALS. 


§69. 


however,  having  full  knowledge  of  his  relations  to  each,  they  see 
fit  mutually  to  confide  in  him,  there  can  be  no  legal  objection  to 
such  an  employment,*  nor  will  either  of  the  principals  be  per- 
mitted afterwards  to  escape  responsibility  because  of  such  double 
employment." 

§  68.  Cannot  be  Party  and  Agent  for  opposite  Party.  For 
the  same  reason,  one  cannot  be  both  the  party  and  the  agent  for 
the  opposite  party  in  the  same  transaction.  Thus,  as  will  be 
more  fully  explained  hereafter,  except  with  the  full  knowledge 
and  consent  of  his  principal,  an  agent  appointed  to  buy  lands  or 
goods  for  his  principal  cannot  buy  of  himself ;  and  an  agent  to 
sell  lands  or  goods  for  his  principal  cannot  sell  to  himself,*  nor 
can  an  agent  authorized  to  receive  payment  for  his  principal  bind 
the  latter  by  the  receipt  of  money  due  from  himself.* 


III. 


JOINT   PRINCIPALS. 


§  69.     When  Power  of  Appointment  is  joint.     The  power  of 
appointing  agents  may  rest  with  a  single  individual  or  with  a 


843;  Rice  v.  Wood,  113  Mass.  133,  18 
Am.  Rep.  459;  Bell  v.  McConnell,  87 
Ohio  St.  396;  41  Am.  Rep.  528;  Stew- 
art V.  Mather,  32  Wis.  344;  Farnsworth 
f.Brunque8l,36  Wis.  202;  Farnsworth 
«.  Hemmer,  1  Allen  (Mass.),  494;  79 
Am.  Dec.  756;  Walker  v.  Osgood,  98 
Mass.  348,  93  Am.  Dec.  168;  Raisin  «. 
Clark,  41  Md.  158,  20  Am.  Rep.  66; 
Lynch  v.  Fallon,  11  R.  I.  311,  23  Am. 
Rep.  458 ;  Pugsley  v.  Murray,  4  E.  D. 
Smith  (N.  Y.),245;  Everhartu.  Searle, 
71  Penn.  St.  256;  Scribner  «.  Collar, 
40  Mich.  375,  29  Am.  Rep.  241. 

'  Adams  Mining  Co.  •.  Senter,  26 
Mich.  73;  Colwell  v.  Keystone  Iron 
Co.  86  Mich.  53;  Fitzsimmons  v. 
Southern  Express  Co.  40  Qa.  330,  2 
Am.  Rep  577;  Rowe  v.  Stevens,  53 
N.  Y.  621;  Joslin  v.  Cowee,  56  N.  Y. 
026;  Rolling  Stock  Co.  v.  Railroad,  34 
Ohio  St.  450;  Leekins  v.  Nordyke,  66 
Iowa,  471;  Alexander  c.  Northwest- 

4  49 


em  University,  57  Ind.  466;  and  cases 
in  preceding  note. 

*  Fitzsimmons  T>.  Southern  Express 
Co.  supra;  DeSteiger  e.  Hollington, 
17  Mo.  App  387;  Robinson  v.  Jarvis, 
25  Mo.  App,  421,  and  cases  in  preced- 
ing notes. 

•Ames  V.  Port  Huron  Log  Driving 
Co.  11  Mich.  189;  83  Am.  Dec.  731; 
Van  Epps  v.  Van  Epps,  9  Paii^^e,  (N. 
Y.)  287;  Dutton  v.  Willner,  52  N  Y. 
319;  Conkey  v.  Bond.  86  N.  Y.  430; 
Keighler  v.  Savage  Mnfg.  Co.  12  Md. 
383.  71  Am  Dec.  600;  Ruckman  v. 
Bergholz,  37  N.  J.  L.  437;  Bain  v. 
Brown,  56  N.  Y.  285;  Kerfoot  v.  Hy- 
man,  52  111.  512;  Parker  v.  Vose,  45 
Me.  54;  White  v.  Ward,  26  Ark.  445; 
Stewart  v.  Mather,  32  Wis.  344; 
Marsh  v.  Whitmore,  21  Wall.  (U.  S.) 
178. 

*  See  post  %  876. 


§  70.  THE    LAW    OF    AGENCY.  [Book  I. 

number  of  individuals.  It  resta  with  a  single  individual  in  those 
cases  in  which  he  is  the  only  person  authorized  to  make  the  ap- 
pointment, and  also  in  those  cases  in  which  he,  in  common  with 
others  or  as  the  representative  of  others,  has  the  power  to  make 
it.  It  rests  with  a  number  of  individuals  in  those  cases  where 
the  conjoint  action  of  all  is  necessary  in  dealing  with  the  subject 
matter.*  The  general  rule  that  whatever  one  may  lawfully  do 
when  acting  in  his  own  right  and  in  his  own  behalf,  he  may  law- 
fully do  by  an  agent,  and  the  converse  of  that  rule,  will  aid  in 
determining  where  the  power  of  appointment  lies. 

In  those  cases  where  the  interest  of  all  is  common,  and  each  is 
authorized  to  act  for  all,  either  may  ordinarily  appoint  an  agent 
whose  acts  will  be  the  acts  of  all ;  but  in  those  cases  where  the 
interest  of  each  is  several,  distinct  or  divided,  and  in  those  where 
the  subject  matter  can  only  be  affected  by  the  united  action  of 
all,  neither  can  bind  the  others  by  the  appointment  of  an  agent. 

§  70.  Partners.  It  is  one  of  the  fundamental  principles  in 
the  law  of  partnership,  that  within  the  scope  of  the  partnership 
business  each  partner  is  the  agent  of  all  the  other  partners  for 
the  transaction  of  the  partnership  affairs,  and  his  acts  are  the  acts 
of  all.  His  appointment  of  an  agent,  therefore,  within  the  same 
limits,  is  the  appointment  of  all,  and  the  acts  of  the  agent  are 
the  acts  of  all.' 

§  71.  Joint  Tenants  and  Tenants  in  Common.  In  the  case 
of  co-tenants,  on  the  other  hand,  there  is  no  implied  authority  in 
each  to  act  for  all,  and  the  appointment  of  an  agent  by  one  will, 
therefore,  bind  that  one  only.'  All  may,  of  course,  join  in  the 
appointment  or  subsequently  assent  to  it,  and  thus  make  the 
agent  the  agent  of  them  all.* 

§  72.     Associations,  Clubs,   Societies  and  Committees.     The 

*  Ewell's  Evans'  Agency,  33.  ally,    but    of   the    partnership    as  a 

•Carley    v.    Jenkins,    46  Vt.  721;  whole.     Johnston  v.    Brown,  18  La. 

Coons  V,  Renick,  11  Tex.  134,  60  Am.  Ann.  830;  Deakin  v.  Underwood,  37 

Dec.  230;  Banner  Tobacco  Co.  v.  Jen-  Minn.  98,  5  Am.  St.  Rep.  827. 
ison,   48  Mich.   459;  Harvey  v.  Mc-  sPerminter  v.   Kelly,  18  Ala.  716, 

Adams,   33  Mich.  472;  Wheatley  «.  54  Am.  Dec.  177;  Keay  v.  Fen  wick, 

Tutt,  4  Kans.  240;  Charles  t>.  Eshle-  1  C.  P.  Div.  745,    18  Eng.    Rep.  294; 

man,  5  Col.  107;  Beckham  v.  Drake,  Corlies  v.  Cumming,  6  Cow.  (N.  Y.) 

9  M.  &  W.  79.     See  ante,  §  45.  181 ;  Noe  v.  Christie,  51  N.  Y.    270; 

The  agent  of  a  partnership  is  not  Story  on  Agency,  §  39. 
the  agent  of  the  partners   individu-         *  Keay  v.  Fen  wick,  supra. 

50 


Chap.  III.] 


JOINT    PRINCIPALS. 


§72. 


question  frequently  arises  whether  the  members  of  voluntary 
unincorporated  associations,  clubs,  societies  and  committees  are 
jointly  liable  as  principals  upon  contracts  purporting  to  be  made 
in  their  behalf  in  carrying  out  the  enterprises  which  they  un- 
dertake. Two  classes  of  cases  arise  in  connection  with  such 
contracts.  One  of  these  is  where  it  is  sought  to  charge  the 
entire  membership  as  principals  in  dealings  had  with  a  smaller 
number  alleged  to  have  been  the  agents  of  all.  The  other  is 
where  it  is  attempted  to  hold  this  smaller  number  —  the  alleged 
agents  in  the  former  class  —  directly  responsible  as  principals.  It 
is  with  the  former  class  only  that  it  is  here  proposed  to  deal,  the 
latter  being  reserved  for  subsequent  consideration.* 

And  in  the  first  place  it  may  be  observed  that  it  is  now  quite 
generally  settled  that  such  organizations  are  not  partnerships » 
and  that  the  members  are  not  liable  as  partners,'  but  that  their 
liability  is  to  be  determined  upon  the  rules  of  principal  and 
agent.*    The  principle  which  applies  here  is  the  familiar  one  that 


•  For  casea  of  the  other  class,  see 
post,  %  557. 

'Ash  V.  Guie,  97  Penn.  St.  493,  39 
Am.  Rep.  818;  Burt  v.  Lathrop,  52 
Mich.  106;  Flemyng  v.  Hector,  2  M. 
&  W.  172;  Caldicott  v.  Griffiths,  8 
Exch.  898;  22  Eng.  L.  &  Eq.  527; 
Todd  V.  Emly.  7  M.  &  W.  427,  s.  c.  8 
M.  &  W.  505;  Lafoad  v.  Deems,  81 
N.  Y.  514;  Waller  v.  Thomas,  42 
How.  Pr.  (N.  Y.)  344. 

» Lewis  «.  Tilton,  64  Iowa,  220,  52 
Am.  Rep.  436,  and  cases  cited  in  fore- 
going note. 

*  Flemyng  v.  Hector,  supra;  Todd 
t>.  Emly,  supra,  and  cases  cited  in  fol- 
lowing note. 

In  Flemyng  v.  Hector,  Lord  Abin- 
GKR,  C.  B.,  says:  "I  had  thought, 
but  without  much  consideration,  at 
the  Assizes,  that  this  sort  of  institu- 
tions were  of  such  a  nature  as  to  come 
under  the  same  view  as  a  partnership, 
and  that  the  same  incidents  might  be 
extended  to  them;  that  where  there 
were  a  body  of  gentlemen  forming  a 
club,  and  meeting  together  for  one 
common  object,  what  one  did  in  re- 


51 


epect  of  the  society  bound  the  others, 
if  he  had  been  requested  and  had 
consented  to  act  for  them.  Several 
cases  have  been  cited  ia  the  course  of 
the  argument,  which  do  not  apply, 
with  the  exception  of  one  of  them, 
to  societies  of  this  nature.  Trading 
associations  stand  on  a  very  different 
footing.  Where  persons  engage  in  a 
community  of  profit  and  loss  as  part- 
ners, one  partner  has  the  right  of 
property  for  the  whole;  so,  any  of 
the  partners  has  a  right,  in  any  ordin- 
ary transactions,  unless  the  contrary 
be  clearly  shown,  to  bind  the  partner- 
ship by  a  credit; — he  might  accept  a 
bill  of  exchange  in  the  name  of  the 
firm,  and  as  between  the  firm  and 
strangers  the  partnership  would  be 
bound,  although  there  might  be  an 
understanding  in  the  firm  that  he  was 
not  to  accept.  It  appears  to  me  that 
this  case  must  stand  upon  the  ground 
which  the  defendant  put  it,  as  a  case 
between  principal  and  agent  and  I  am 
the  more  inclined  to  look  at  it  in  that 
light,  by  an  observation  made  *  *  *  in 
the  course  of  the  argument  yesterday. 


I  72.  THE    LAW    OF    AGENCY.  [Book  I. 

no  person  can  be  charged  upon  a  contract  alleged  to  have  been 
made  upon  his  responsibility,  unless  it  can  be  shown  that  to  the 
making  of  that  contract  upon  his  responsibility,  he  has  given  his 
express  or  implied  assent,' 

This  assent  may  be  expressed  in  a  variety  of  ways,  and  at  one 
of  several  times.  It  may  have  been  given  in  advance  by  con- 
senting to  be  bound  by  all  contracts  of  a  certain  kind  that  may 
be  made  in  the  future ;  it  may  be  given  contemporaneously  with 
the  making  of  the  contract;  and  it  may  also  be  inferred  from  a 
subsequent  ratification. 

Thus  where  it  is  a  part  of  the  scheme  or  purpose  of  the  organ- 
ization as  provided  by  its  articles  of  association,  charter,  constitu- 
tion or  by-laws,  that  certain  contracts  or  obligations  in  behalf  and 
upon  the  credit  of  the  organization,  may  be  entered  into,  either 
upon  the  vote  of  a  majority  or  at  the  discretion  of  a  committee 
or  officer,  or  upon  any  other  lawful  contingency  or  event,  every 
person  who  becomes  a  member,  by  so  doing  impliedly  consents, 
in  advance,  to  be  bound  by  any  contract  or  obligation  of  the 
kind  contemplated,  entered  into  under  the  circumstances  pre- 
scribed." 

Where,  however,  there  is  no  such  undertaking  to  abide  by  the 
action  of  the  majority,  or  to  be  bound  by  contracts  entered  into 
by  the  committee  or  officers,  those  only  who  authorize  the  mak- 
ing of  the  contract  will  be  bound.     Hence  if  there  be  a  division 

on  the  subject  of  bills  of  exchange.     I  the  club,  which  is  to  be  found  in  its 

apprehend  that  one  of  the  members  own  rules." 

of  this  club  could  not  bind  another  *  Devoss  v.  Gray,  22  Ohio  St.  169; 
by  accepting  a  bill  of  exchange,  act-  Newell  v.  Borden,  128  Mass.  31 ;  Vot- 
ing as  a  committee  man,  even  where  ger  v.  Ray,  131  Mass.  439;  Ash  e. 
there  might  be  an  apparent  necessity  Guie,  tupra;  Ray  v.  Powers,  134 
to  accept,  as  in  the  case  of  a  purchase  Mass.  22;  Ridgely  e.  Dobson,  3  Watts 
of  a  pipe  of  wine:  the  party  might  &  S.  (Penn.)  118;  Lewis  «.  Tilton, 
draw  a  bill,  but  I  do  not  think  he  supra;  Ht-alh  c.  Goslin.  80  Mo.  310, 
could  accept  the  bill  to  bind  the  mem-  50  \m.  Rep.  505;  Burt  v.  Lathrop, 
hers  of  the  club.  It  is,  therefore,  a  52  Mich  106;  Rice  v.  Peninsular 
question  here  how  far  the  committee.  Club,  52  Mich.  87;  Flemyng  v.  Hec- 
who  are  to  conduct  the  affairs  of  this  tor,  2  M.  &  W.  172;  Sproat  v.  Porter, 
club  as  agents,  are  authorized  to  enter  9  Mass.  300. 

into    such  contracts    as    that  upon  «Todd  v.  Emly,  7  M.  «fc  W.    427; 

which  the  plaintiffs  now  seek  to  bind  Cockerell  v.  Aucompte,  2   Com.    B. 

the  members  of  the  club  at  large;  and  (N.  S.)  440;  Flemyng  v.  Hector,  2  M. 

that  depends  on  the  constitution  of  &  W.  172 ;  Devoss  v.  Gray,  tupra. 

52 


Chap.  III.]  JOINT   PKINCIPAL8.  §  73. 

of  opinion  and  the  contract  is  authorized  by  a  majority  only,  the 
majority  only  can  be  held  responsible.' 

But  though  a  member  at  the  time  dissents,  yet  if  he  subse- 
quently concurs  or  acquiesces  in  the  mailing  of  the  contract,  lie 
will  be  bound  in  the  same  manner  as  tliough  his  assent  had  been 
previously  given.* 

§  73.  Same  Subject— Illustrations.  In  a  leading  case  upon 
this  subject,  it  was  sought  to  hold  certain  members  of  an  unin- 
corporated club  liable  for  work  done  and  goods  supplied  to  the 
club  upon  the  order  of  a  standing  committee  appointed  by  the 
club.  It  appeared  that  the  club,  which  was  one  organized  for 
the  purpose  of  furnishing  refreshments  and  entertainment  to  it3 
members,  had  adopted  certain  rules  by  which  each  member  was 
to  pay  admission  and  annual  fees,  and  was  also  to  pay  daily  for 
his  accommodations  at  the  club.  A  committee  was  appointed  to 
manage  the  affairs  of  the  club,  but  it  appeared  that  the  rules  of 
the  club  gave  the  committee  no  authority  to  pledge  the  personal 
credit  of  the  members.  The  plaintiffs  attempted  to  hold  the 
defendants  personally  responsible  by  virtue  of  their  membership 
only,  and  offered  no  evidence  that  they  had  ever  expressly  or 
impliedly  assented  to  the  making  of  the  particular  contract  sued 
upon.  But  the  court  held  that  in  the  absence  of  such  evidence, 
the  defendants  were  not  liable  and  that  mere  membership  in  the 
club  was  not  sufficient.'     So,  where  an  action  was  brought  to 

*  Todd  V.  Emly,  supra.  given  authority  to  the  committee  to 

•  Heath  r.  Qo8lin,«Mpra;  Eichbaum  discharge  the  contract  out  of  the 
e.  Irons,  6  Watts  &  S.  (Penn.)  67,  40  funds  in  their  hands:  but  it  is  con- 
Am.  Dec.  540.  tended  on  the  part  of  the  committee 

apiemyng  v.  Hector,  2  M,  &  W.  that  they  had  a  right  to  pledge  the 

171;  and  this  case  was  followed  in  the  personal  credit  of  the  members,  and 

similar  case  of  Todd  v.  Emly,  7  M.  &  therefore  to  make  these  defendants 

W.  427,  8.  c.  8  Id.  505.  liable.     I  think  they  have  not.  When 

In  Flemyng  v.  Hector,  Alderson,  I  come  to  look  at  the  rules  of  the 

B.,  said:     "This  question  turns  sim-  club,  which  are  to  be  the  guide  by 

ply  on  the  authority  which  the  parties  which  we  are  to  act,  and  which  con- 

who  made  the  contract  had  to  pledge  Btitute  the  only  authority  the  commit- 

the  credit  of  the  defendants  to  the  tee  had,  I  do  not  find  anything  to 

plaintiffs.     Taking  it  that  the  com-  lead  me  to  the  conclusion  that  the 

mittee  have  made  the  contract,  and  authority  of  the  committee  extended 

that  they  are    by  the  rules  of  the  to  the  right  of  pledging  the  personal 

society    authorized    to    manage    the  liability  of  any  of  the  members  of  it; 

affairs  of  the  club,   it  may  follow  on  the  contrary,  I  find  the  members 

from  that  that  the  defendants  have  of  the  club  carefully  provided  a  fund, 

53 


§  73.  THE   LAW   OF   AGENCY.  [Book  L 

charge  certain  members  of  an  unincorporated  religious  society 
for  services  performed  in  building  a  church  edifice,  it  was  held 
that  even  if  it  were  to  be  assumed  that  the  defendants  were 
members  because  it  was  alleged  that  they  were  deacons  of  the 
church,  still  their  liability  as  principals  would  not  follow,  because 
a  member  of  an  unincorporated  religious  society  cannot  be  held 
personally  responsible  for  the  debts  of  the  society  unless  it  be 
shown  that  in  some  way  he  had  sanctioned  or  acquiesced  in  their 
creation.' 

So  at  a  meeting  of  a  voluntary  unincorporated  association 
organized  for  the  purpose  of  encouraging  the  breeding  and  exhi- 
bition of  fowls,  a  premium  list  for  an  exhibition  to  be  given  was 
adopted.  An  action  in  equity  was  afterwards  brought  to  compel 
the  defendants,  as  members,  to  contribute  their  proportion  of  the 
expenses  incurred  in  holding  the  exhibition  and  paying  the 
premiums.  But  the  court  held  that  mere  membership  would 
not  bind  a  member  for  any  further  payment  than  the  initiation 
fee  and  annual  assessment,  and  that  only  such  members  as  par- 
ticipated in  the  vote  to  hold  the  exhibition  and  award  the  prem- 
iums or  as  assented  to  be  bound  by  such  vote,  would  be  bound 
thereby.  It  therefore  became  a  question  of  fact  whether  any 
or  all  of  the  defendants  so  participated  or  assented.  In  deter- 
mining the  question  of  such  participation  or  assent,  the  testimony 
of  those  present  was  admissible  and  the  formal  record  of  the 
meeting  was  not  the  only  means  of  proof,  unless  made  so  by 
some  rule  or  regulation  of  the  association.* 

This  assent  need  not  always  be  declared  in  express  terms.  It 
may  be,  and  often  is,  in  this,  as  in  other  cases,  inferred  from  the 
conduct  of  the  parties.  Thus  a  school-board  had  for  years  em- 
ployed and  paid  the  plaintiff  as  a  teacher.  The  president  of  the 
board  employed  her  for  another  year  and  she  performed  the 
service,  but  not  being  paid  in  full,  she  brought  suit  against  the 

which  was  to  be  collected  before  they  pledge  the  credit  of  individual  mem- 
became  members  of  the  club,  and  bers;  and  if  they  do  deal  on  credit,  it 
having  collected  that  fund  and  pro-  is  their  own  affair,  done  on  the  faith 
vided  it,  the  committee  are  to  manage  of  the  money  in  their  hands,  which 
it.  Then  what  is  it  the  committee  would  enable  them  to  pay  their  ac- 
are  to  manage?     Why,  the  fund  so  counts." 

provided,   and  to  manage  the  club  '  DeVoas  v.  Gray,  22  Ohio  St.  189. 

upon  those  terms.     If  that  be  so,  the  *  Ray  v.  Powers,  134  Mass.  23. 
committee     are    not    authorized    to 

54 


Chap.  III.]  JOINT  PRINCIPALS.  §  74. 

board  for  the  balance.  Some  of  the  defendants  objected  that 
they  had  never  authorized  the  president  to  make  the  contract, 
but  the  court  said :  "  There  is  ample  (evidence)  in  the  case  to 
submit  to  the  jury  from  which  the  knowledge  and  co-operation 
of  all  of  the  defendants  may  be  justly  inferred.  They  were  the 
acting  board  intrusted  with  the  management  of  the  school.  They 
had  for  years  been  employing  and  paying  this  woman.  They 
knew  that  she  was  continuing  to  teach  and  being  paid  out  of  the 
funds.  They  had  not  withdrawn  from  their  self-imposed  office 
as  a  managing  board."  ' 

So  certain  members  of  a  committee  were  held  personally  liable 
for  a  public  dinner  ordered  by  the  committee,  upon  the  ground 
that,  though  they  opposed  the  resolution  while  it  was  under 
consideration,  they  had  at  last  submitted  to  the  majority  and 
made  the  resolution  their  own.* 

§  74.  Same  Subject— The  Rule  stated.  It  is  believed  that 
Jhe  following  rule  embraces  the  authorities  upon  this  subject : 

1.  That  mere  membership  in  such  an  association,  society,  club 
or  committee  does  not  make  the  member  personally  liable  upon 
contracts  purporting  to  be  made  on  its  behalf,  unless  there  is 
something  in  the  charter,  by-laws  or  articles  of  association  auth- 
orizing the  pledging  of  the  credit  of  the  association,  to  which 
be  is  presumed  to  hare  assented  by  becoming  a  member,  and 
then  only  in  those  cases  where  the  contract  is  within  the  limits 
there  prescribed. 

2.  That  except  in  the  case  last  mentioned,  the  member  can 
only  be  made  liable  upon  proof  of  his  express  or  implied  assent 

'  Heath  «.  Goslin,  80  Mo.  310,   50  meeting  was  dissolved  and  the  order 

Am.  Rep.  505.  given."    It  is  evident,  however,  that 

sEichbaum  v.  Irons,  6  Watts  &  S.  the  Chief  Justice  did  not  mean  to  be 

(Penn.)  67.  40  Am.  Dec.  540.     In  this  understood  as  holding  that   liability 

case,    Chief    Justice    Gibson    said:  attached  to  the  mere  fact  of  member- 

"  Every  member  present  assents  be-  ship  or  that  the  defendants  could  be 

forehand  to  whatever  the  majority  bound  without  their  assent,  but  that 

may  do,  and  becomes  a  party  to  acts  the  assent  of  the  defendants  was  to 

done,  it  may  be,  directly  against  his  be  inferred  from  their  conduct.     In 

will.     If  he  would  escape  responsi-  another  part  of  the  opinion  he  says: 

bility  for  them,  he  ought  to  protest  "  Did  the  defendants  then  concur  in 

and  throw  up  his  membership  on  the  the  order  given  for  the  dinner  in  ques- 

■pot.  and  there  was  no  evidence  that  tion?    If  they  did  not,  the  plaintiff 

any  of  the  defendants  did  so.     On  the  cannot  recover."  i 

contrary  they  all   remained    till  the 

65 


§  75.  THE    LAW   OF    AGENCY.  [Book  I. 

to  the  contract ;  but  this  may  be  shown  either  by  his  previous 
consent  or  his  subsequent  adoption  or  by  his  acquiescence  in  an 
established  course  of  dealing. 

§  75.  Inohoate  Corporations.  A  corporation  is  not  respon- 
sible for  acts  performed  or  contracts  entered  into  before  its 
organization  by  its  promoters  or  other  persons  assuming  to  bind 
it  in  advance.'  Having  as  yet  no  corporate  existence  it  is,  of 
course,  incapable  of  entering  into  contracts,  or  appointing  officers 
or  agents.  When  its  organization  is  effected,  however,  it  may 
expressly  or  impliedly  assume  the  responsibility  of  such  acts 
or  contracts,  if  within  its  corporate  powers,  and  thus  make  them 
the  valid  obligations  of  the  corporation.  Such  an  assumption 
may,  as  in  other  cases,  be  implied  where  the  corporation,  with 
knowledge  of  the  facts,  appropriates  to  itself  the  benefits  and 
advantages  derived  from  the  act  or  contract  of  the  promoters, 
for  "  it  cannot  take  the  benefit  of  the  contract,  without  perform- 
ing that  part  of  it  which  the  projectors  undertook  that  it  should 
perform."  * 

IV. 

JOINT   AGENTS. 

§  76.  Authority  to  Several.  The  authority  that  may  be  dele- 
gated to  a  single  agent  may,  generally,  be  likewise  delegated  to 
two  or  more.  Most  of  the  rules  applicable  to  a  single  agent, 
apply  equally  when  the  agency  is  joint.  A  distinction,  however, 
is  to  be  made  in  the  manner  of  the  execution  of  a  joint  agency 
based  upon  the  question  whether  the  agency  be  of  a  public  or  a 
private  nature. 

S  77.  Private  Agency  must  be  executed  by  all.  Where  au- 
thority is  conferred  upon  two  or  more  agents  to  represent  their 
principal  in  the  transaction  of  business  of  a  private  nature,  it 

*  Morawetz  on  Corporations,  §  547;  Franklin  Fire  Ins.  Co.  e.  Hart,  31  Md. 

Paxton  Cattle  Co.  «.  First  Nat.  Bank,  60;  Western  Screw  Co.  c.  Cousley,  72 

21  Neb.  631,  69  Am.  Rep.  852;  Bell's  111.  531. 

Gap  R.  R.  Co.  V.  Christy,  79  Penn.  »  Bell's  Gap  R.  R.  Co.  v.  Christy, 

St.   54,  21  Am.  Rep.  39;  Rockford,  tupra;  Rockford,  &c.,  R.  R.  Co.  e. 

Ac,  R.  R.  Co.  V.  Sage,  65  111.  328,  16  Sage,  supra;  Western  Screw  Co.  «. 

Am.  Rep.  587;  New  York,  &c.,  R.  Cousley,  mpra.     See  16  Am.  L.  Rev. 

R.  Co.  e.  Ketchum,  27  Conn.    170;  857  and  671.     See  poai,  §  125. 

56 


Chap.  111.] 


JOINT   AGENTS. 


§77. 


may  well  be  presumed  that  it  was  so  conferred  upon  them  all 
from  considerations  of  a  personal  nature  and  in  order  to  derive 
the  benefit  of  their  combined  experience,  discretion  or  ability,' 
It  is,  therefore,  the  rule  that  such  an  agency  will  be  presumed 
to  be  joint,  and  it  can  be  performed  by  them  only  jointly  when 
no  intent  appears  that  it  may  be  otherwise  executed."  If,  how- 
ever, it  is  shown,  by  the  instrument  conferring  the  power  or 
otherwise,  that  it  was  the  intention  that  a  part  might  execute  it, 
such  execution  will  be  suflicient.'  So  where  the  agency  is  joint 
or  several,  it  must  be  executed  by  all  or  one,  and  not  by  an  inter- 
mediate   number,    unless    such   an    intention    clearly    appears.* 


*  Commonwealth  v.  CommissioDers, 
9  Watts  (Penn.)  470. 

» Cedar  Rapids,  «fcc.  R.  R.  Co.  t>. 
Stewart.  25  Iowa,  115;  Kupfer  «.  Au 
Qusta,  12  Mass.  185;  Caldwell  o.  Har- 
rison, 11  Ala.  755;  Soens«.  Racine,  10 
Wis.  271;  White  v.  Davidson, 
8  Md.  169;  63  Am.  Dec.  699; 
Rogers  v.  Cruger,  7  Johns.  (N. 
Y.)  557;  Damon  v.  Qranby,  2  Pick. 
(Mass.)  345;  Sutton  v.  Cole,  3  Id.  232; 
Woolsey  v.  Tompkins,  23  Wend.  (N. 
Y.)  324;  Hartford  F.  Ins.  Co.  tj.  Wil- 
cox, 57111.  180;  Scott  v.  Detroit,  &c. 
Society,  1  Doug.  (Mich.)  119;  Low  v. 
Perkins,  10  Vt.  532,  33  Am.  Dec.  217; 
Towne  v.  Jaquith,  6  Mass.  46;  Heard 
•.  March,  12  Cush.  (Mass.)  580;  Haw- 
ley  V.  Keeler,  53  N.  Y.  114;  Johnston 
•.  Bingham,  9  W.  &  S.  (Penn.)  56. 

As  in  the  case  of  arbitrators :  Moore 
V.  Ewing.  Coxe  (N.  J.)  144,  1  Am. 
Dec.  195;  Blin  «.  Hay,  2  Tyler  (Vt.), 
804,  4  Am.  Dec.  738;  Green  v.  Miller, 
«  Johns.  (N.  Y.)  39,  5  Am.  Dec.  184; 
Patterson  v.  Leavitt,  4  Conn.  50,  10 
Am.  Dec.  98;  Wilder  v.  Ranney,  95 
N.  Y.  7;  Brennan  c.Willson,  71 N.  Y. 
502;  Penn  v.  Evans,  28  La.  Ann.  576. 

"  It  is  well  settled,"  says  Andrews 
J.  in  Hawley  «.  Keeler,  supra,  "as  a 
general  doctrine  in  the  law  of  agency, 
that  when  an  authority  to  act  in  a 
matter  of  a  private  nature  is  con- 
ferred hj  the  principal  upon  more 


than  one  person,  all  must  act  in  the 
execution  of  the  power.  This  is  the 
construction  which  the  law  puts  upon 
the  power,  following  the  supposed 
intention  of  the  parties,  and  there 
must,  ordinarily  be  a  joint  execution 
of  the  agency.  The  authority  may 
be  conferred  in  such  terms  as  to  au- 
thorize a  several  execution,  or  an  exe- 
cution by  a  majority  or  other  num- 
ber; and  in  the  absence  of  express 
words  it  may  have  been  exercised  un- 
der such  circumstances  as  will  justify 
the  inference  that  the  principal 
intended  that  less  than  the  whole 
number  might  act;  in  which  case  he 
would  be  bound  to  those  who  had 
acted  upon  such  inference.  The  gen- 
eral rule  that  a  joint  execution  must 
be  had  of  an  authority  given  to 
several,  has  been  made  to  yield  for 
the  benefit  of  trade  and  to  meet  sup- 
posed necessities,  in  contracts  made 
by  one  of  several  joint  owners  of 
ships,  and  in  case  of  sales  made  by 
one  of  two  factors,  of  goods  con- 
signed to  them  for  sale." 

•Cedar  Rapids,  &c.  R.  R.  Co.  v. 
Stewart,  25  Iowa,  115;  Hawley  e. 
Keeler,  53  N.  Y.  114.  When  usiige 
will  justify,  see  Godfrey  «.  Saunders, 
3  Wils.  94;  Willet  «.  Chambers, 
Cowp.  814. 

*  Guthrie  v.  Armstrong,  5  B.  &  Aid. 
628. 


67 


§  78.  THE    LAW    OF    AGENCY.  [Book  i. 

Where,  however,  the  authority  is  conferred  upon  a  partnership, 
it  may  be  executed  by  one  of  the  partners.' 

Where  the  agency  is  clearly  joint,  the  death  or  disability  of  one 
of  the  agents  terminates  the  agency  unless  it  be  coupled  with  an 
interest  in  the  survivors.* 

§  78.  Public  Trust  or  Agency  may  be  executed  by  a  Majority. 
Where,  however,  the  trust  or  agency  is  created  by  law,  or  is 
public  in  its  nature,  the  rule  is  otherwise,  and  while  all  of  the 
trustees  or  agents  must  be  present  to  deliberate,  or  must  be  duly 
notified  and  have  an  opportunity  to  be  present,  yet  a  majority  of 
them,  if  present,  may  act.' 

The  rule  which  applies  to  these  cases  was  well  stated  by  Chief 
Justice  Shaw,  as  follows:  "Where  a  body  or  board  of  officers 
is  constituted  by  law  to  perform  a  trust  for  the  public,  or  to 
execute  a  power  or  perform  a  duty  prescribed  by  law,  it  is  not 
necessary  that  all  should  concur  in  the  act  done.  The  act  of  the 
majority  is  the  act  of  the  body.  And  where  all  have  due  notice 
of  the  time  and  place  of  meeting  in  the  manner  prescribed  by 
law,  if  so  prescribed ;  or  by  the  rules  and  regulations  of  the  body 
itself,  if  there  be  any ;  otherwise,  if  reasonable  notice  is  given, 
and  no  practice  or  unfair  means  are  used  to  prevent  all  from  at- 
tending and  participating  in  the  proceeding,  it  is  no  objection 
that  all  the  members  do  not  attend,  if  there  be  a  quorum."  * 

>  Deakin  v.  Underwood,  87  Minn.  Tabor,  52  Vt.   87.   36  Am.  Rep.  734; 

98,  5  Am.  St.  Rep.  827.  Withnell   r.    Gartham,  6  T.  R.   388; 

« Salisbury  «.   Brisbane,   61  N.  Y.  Grindley  v.   Barker,    1  B.  &  P.  229; 

617;  Boone  v.  Clark,  3  Cranch  (U.  S.  Kingsbury©.  School  District,12  Mete. 

C.  C),  390;    Hartford  F.  Ins.  Co.  «.  (Mass.)  99;   Cooley  v.    O'Connor,  12 

Wilcox,  57  111.  180.  Wall.    (U.    S.)  391;  Baltimore  Turn- 

•McCready    v.    Guardians  of    the  pike.   Case  of,  5  Binn.  (Penn.)  481; 

Poor,  9  Serg.  &  R.  (Penn.)  94,  11  Am.  Louk  v.  Woods,  15  111.  256;  Jefferson 

Dec.  667;  Scott  u    Detroit,  &c.  Soci-  County  «.  Slagle,    66  Penn.    St.  202; 

ety,  1   Doug.    (Mich.)  119;  Jewett  v.  Austin  v.  Helms,  65  N.  C  560;  Peo- 

Alton,  7  N.  H.  253;  Caldwell  v.  Har-  pleu  Nichols,  52  N.  Y.  478,  11   Am. 

rison,  11  Ala.  755;  Soens  v.  Racine,  10  Rep.  734;  Williams  v.  School  District, 

Wis.  271;  Despatch  Line  v.  Bellamy  21  Pick.  (Mass.)  75,  32  Am.  Dec.  243. 

Mnfg.  Co.  12  K  H.  205.  37  Am  Dec.  <In    Williama    «.   School  District, 

203;  Firat  National  Bank  v.  Mount  supra. 

58 


Chap.  IV.] 


APPOINTMENT   OF    AGENTS. 


§T9. 


CHAPTER  lY. 

OP  THE  APPOINTMENT  OP  AGENTS  AND  THE  EVIDENCE 

THEREOF. 


§79.  Purpose  of  Chapter. 

1.  How  Agents  mat  bb  appointbd. 

80.  Only  by  the  Will  of  the  Princi- 

pal. 

81.  How  Principal's  Will  may  be 

expressed. 

82.  Authority  by  Law  and  of  Neces- 

sity. 

83.  Authority  by  Implication — Pre- 

sumption— Estoppel, 
84  Same  Subject — The  Rule  stated. 

85.  Same  Subject  —  Limitations  of 

this  Rule. 

86.  Same  Subject— What  suflBcient 

— Instances. 

87.  Same  Subject— What  not  sufll- 

cient — Instances. 

88.  Authority  by  express,  unwrit- 

ten Appointment. 

89.  By    Parol  —  To   sell    or    lease 

Lands. 

90.  By  Parol  —  To  demand  and  col- 

lect Rents. 

91.  By  Parol  —  To  execute  written 

Instruments  not  under  Seal. 

92.  What  Writing  sufflcient  when 

Writing  required. 

93.  Authority  to  execute  sealed  In- 

struments must  be  under  Seal. 


\  94.  Same  Subject— Authority  to  fill 
Blanks  in  Deeds. 

95.  Same  Subject — How  when  Seal 

superfluous. 

96.  How  in  Principal's  Presence 

and  by  his  Direction. 

97.  Appointment  by  Corporations. 

98.  Same    Subject  —  To    execute 

Deed  of  corporate  Realty. 

II.  Evidence  of  AppoiNTiiEiiT. 

99.  Purpose  of  the  Subdivision. 

100.  Agent's   Authority   cannot  be 

established  by  his  own  State- 
ments or  Admissions. 

101.  Agent's  Authority  cannot  be 

proved  by  general  Reputation. 

102.  Agent  must  be  called  as  a  Wit- 

ness. 

103.  Written  Authority  must  be  pro- 

duced— When. 

104.  Construction   of    Writing  for 

Court. 

105.  Effect  of  undisputed  Facts  to 

be  determined  by  Court. 

106.  In  other  Cases,  Question  is  for 

the  Jury. 

107.  Authority  by  Ratification. 

108.  Acceptance    of  Agency    by 

Agent. 


§  79.  Purpose  of  Chapter.  It  is  the  purpose  of  this  chapter 
to  consider  the  different  methods  by  which  an  agent  may  be  ap- 
pointed, and  to  determine  what  shall  be  the  evidence  of  such 
appointment. 

59 


§  aO,  THK   LAW    OF   AGENCY.  [Book  I. 

I. 

HOW    AQBNT   MAY    BE    APPOINTED. 

8  80.  Only  by  the  Will  of  the  Principal.  It  has  been  said  to 
be  the  general  rule  of  the  law  that  no  one  can  become  the  agent 
of  another  except  by  the  will  of  the  principal.'  But  this  rule  is 
subject  to  the  exception  of  those  cases  where  an  agency  may  be 
created  by  law,  even  against  the  will  of  the  principal, — an  excep- 
tion which  will  be  hereafter  noticed.' 

§  81.  How  Principal's  Will  may  be  expressed.  This  will  of 
the  principal  may  be  expressed  in  a  great  variety  of  ways ;  in- 
deed, its  form  of  expression  is  as  various  as  the  methods  of  enter- 
ing into  contracts  generally.  Thus  an  agent  may,  in  a  given 
case,  be  appointed  by  a  written  instrument  or  by  word  of  mouth. 
His  appointment  may  be  implied  from  the  conduct  of  the  parties, 
or  his  previously  unauthorized  acts  may  be  adopted  and  ratified 
by  the  principal.  The  written  authority  may  be  under  seal  or 
otherwise.  There  will  be  found  cases  where  the  authority  must 
be  in  writing,  and  others  where  the  writing  must  be  under  seal. 

S  82.  Authority  by  Law;  An  agency  may  be  created  by  law. 
Thus  it  is  said  by  a  learned  judge  :  "  In  those  cases  where  the 
law  authorizes  a  wife  to  pledge  her  husband's  credit  even  against 
his  will,  it  creates  a  compulsory  agency,  and  her  request  is  hia 
request,"  * 

Authority  of  Necessity.  So  it  has  been  said,  "  if  the  husband 
turns  his  wife  away,  it  is  not  unreasonable  to  say  that  she  has  an 
authority  of  necessity."  *  Of  this  nature  has  sometimes  been  said 
to  be  the  authority  of  a  ship'S  master  to  contract  for  necessary 
repairs. 

S  83.  Authority  by  Implication— Presumption— Estoppel.  A 
large  portion  of  the  transactions  of  the  modern  business  world  is 
carried  on  by  simple  and  informal  means.  A  word  or  look  or 
gesture  often  suffices  to  give  assent  to  great  undertakings  or  to 
Bet  in  motion  the  complicated  machinery  of  commerce.*     Little, 

•Evana  on  Agency,  Ewell's  Ed.  16;  *Poat,  §82. 
Pole  V.  Leask,  28  Beav    583;  String-  'Holmes,  J.  in  Benjamin  e.  Dock- 
ham  V.   St.  Nicholas  Ins.  Co.4  Abb.  ham.  134  Mass.  418. 
App.  Dec.  (N.  Y.)315;  McGoldricktJ.  «  Pollock,    C.    B.   in  Johnston*. 
Willits,  53  N.  Y.  612;  Graves  v.  Hor-  Sumner.  3  Hurl.  &  Nor.  261. 
ton, —  Minn.  — ,  35  N.  W.  Rep.  668.  iA  forcible  illustration  of  this  may 

60 


Chap.  IV.]  APPOINTMENT    OF    AGENTS.  §  81. 

often,  is  said  or  written,  bnt  that  little  carries  with  it  a  train  of 
legal  consequences  no  less  certain  and  detinite  than  if  the  whole 
were  included  in  the  spoken  or  written  words.  This  being  so 
good  faith  is  strenuously  insisted  upon,  and  one  who  by  his  con- 
duct has  led  an  innocent  party  to  rely  upon  the  appearance  of 
another's  authority  to  act  for  him,  will  not  be  heard  to  deny  the 
agency  to  that  party's  prejudice.'  Hence  it  is  tliat  in  many  cases 
the  existence  of  an  agency  is  implied  or  presumed  from  the 
words  or  conduct  of  the  parties,  and  this,  too,  although  the  crea- 
tion of  an  agency  was  not  within  their  immediate  contemplation. 

§  84.  Same  Subjoot— The  Bule  stated.  It  may  therefore  be 
stated  as  a  general  rule  that  whenever  a  person  has  held  out 
another  as  his  agent  authorized  to  act  for  him  in  a  given  capacity ; 
or  has  knowingly  and  without  dissent  permitted  such  other  to  act 
as  his  agent  in  such  capacity;  or  where  his  habits  and  course  of 
dealing  have  been  such  as  to  reasonably  warrant  the  presumption 
that  such  other  was  his  agent,  authorized  to  act  in  that  capacity ; 
whether  it  be  in  a  single  transaction  or  in  a  series  of  transactions, 
his  authority  to  such  other  to  act  for  him  in  that  capacity  will  be 
conclusively  presumed,  so  far  as  it  may  be  necessary  to  protect  the 
rights  of  third  persons  who  have  relied  thereon  in  good  faith 
and  in  the  exercise  of  reasonable  prudence,  and  he  will  not  bo 
permitted  to  deny  that  such  other  was  his  agent,  authorized  to  do 
the  act  that  he  assumed  to  do,  provided  that  such  act  is  within 
the  real  or  apparent  scope  of  the  presumed  authority.* 

be  seen  upon  any  Board  of  Trade,  liable  for  the  assumed  act  of  another 
where  according  to  local  usage  or  as  his  agent  on  the  principle  of  estop- 
fixed  rule,  a  nod  or  the  holdiog  up  of  pel  by  suffering  that  other  to  repre. 
one  or  more  fingers,  serves  to  give  sent  himself  as  his  agent  with  power 
assent  to  the  making  of  a  sale  and  to  make  the  particular  contract." 
the  specifying  of  the  quantity.  So  Fanning  v.  Cobb,  20  Mo.  App.  577; 
the  nod  of  a  purchaser  at  an  auction  DeBaun  v.  Atchison,  14  Mo,  543; 
is  sufficient  to  effect  a  purchase  and  Rice  v.  Qroffman,  56  Mo.  434;  Cup- 
to  autliorize  the  entering  of  his  name  pies  v.  Whelan,  61  Mo.  583. 
upon  the  memorandum  of  the  sale.  'Pursley  v.  Morrison,  7  Ind  356, 
*  "The  general  rule,"  says  Judge  63  Am  Dec.  424;  Hooe  v.  Oxley,  1 
Thompson,  " undoubtedly  is  that  the  Wash.  (Va)  19,  1  Am.  Dec.  425; 
liability  of  a  principal  for  the  con-  Eagle  Bank  v.  Smith,  5  Conn.  71,  13 
tracts  of  liis  aj;eat  is  predicated  either  Am.  Dec.  37,  Lyell  v.  Sanbourn,  2 
upon  a  previous  authorization  or  a  Mich.  lOli;  Thompson  v.  Bell,  10 
subsequent  ratification.  But  there  Exch.  10;  Commonwealth  «.  Holmes, 
are  cases  where  a  person  will  become  119  Mass.  195;  Croy  v.  Busenbark,  73 

61 


g  85.  TUE    LAW    OF    AGENCY.  [Book  L 

S  85.  Same  Subject— Limitations  of  this  Rule.  But  it  is  not 
to  be  inferred,  however,  that  authority  is,  in  any  case,  to  be  im- 
ph'ed  without  reason,  or  presumed  without  cause.  The  implica- 
tion must  be  based  upon  facts,  and  cannot  arise  from  any  mere 
argument  as  to  the  convenience,  utility  or  propriety  of  its  exist- 
ence.* So,  too,  the  facts  from  which  it  is  sought  to  be  implied 
are  to  be  given  their  natural,  legal  and  legitimate  effect,  and  this 
effect  is  not  to  be  expanded  or  diminished  in  order  to  establish 
or  overthrow  the  agency.  And  again,  when  implied,  the  agency 
is  to  be  limited  in  its  scope  and  operation  to  the  reasonable  and 
necessary  requirements  of  the  case  which  called  it  into  being. 
If  implied  from  the  ratification  or  adoption  of  acts  of  a  certain 
kind,  its  scope  is  to  be  limited  to  the  performance  of  acts  of  that 
kind,  and  it  can  not  be  construed  as  warranting  the  performance 
of  actB  of  a  different  kind.' 

8  86.  Same  Subject— What  sufficient— Instances.  Illustrations 
of  this  rule  are  numerous.  Thus  where  one  stands  by  and  permits 
another,  in  his  presence,  to  make  a  contract  for  him  as  his  agent, 
without  disclosing  the  want  of  authority,  he  will  be  estopped 
from  denying  the  authority  ;*  and  one  who  knows  that  another  is 
collecting  money  on  his  account  and  does  not  object,  but  allows 
him  to  keep  it  as  a  loan,  makes  him  his  agent  to  collect  it.*  So 
where  it  was  shown  that  a  son  had  for  years  been  signing  his 

Ind.  43:  Meyer  u.  King,  29  La.  Ann.  Vt.   130;   Chicago,   «&c.   Ry.   Co.    •. 

567;  Thurbere.  Anderson, 88  III.  167;  James,   23   Wis.    194;  Rice  v.  Groff- 

Fayc.  Richmond, 43  Vt.  25;  Weaver  t).  mann,  56  Mo.  434;  Columbia  Bridge 

Ogletree,  89  Qa.  586;  Rimmey  v.  Get-  Co.  v.  Geisse,  38  N.  J.  L.  ?>9;  Bron- 

terman,  63  Md.  424;  Sorrell «.  Brews-  son  v.  Chappell,  12  Wall.  (U.  8.)  681; 

ter,   1  Mich.    373;  Grover  &  Baker  Tier  t).  Lampson,  35  Vt.  179,82  Am. 

Sew.    Mach.    Co.    v.    Polhemus,   34  Dec.  634. 

Mich.  247;  Connecticut  Mut.  L.  Ins.  i  See  Bickford  v.  Menier,  107  N.  Y. 

Co.  V.  Pulte,  45  Mich.    113;  Brockel-  490,  26  Cent.  L.  Jour.  236. 
bank  v.  Sugrue,  5  C.  &.  P.   21;  Sav-  2  See  Graves  v.  Horton,  Minn.    35 

ings  Fund  Society  v.   Savings  Bank,  N.  W.  Rep.  568;  McAlpin  v.  Cassidy, 

36  Penn.  St.  498,  78  Am.  Dec.  390;  17  Tex.  449,  post  §§  274,  312. 
Farmers'  Bank  v.  Butchers'  Bank,  16  'James  v.  Russell,  92  N.  Car.  194. 

N.  Y.  145;   Kiley  v.    Forsee,  57  Mo.  <  Simon  e.  Brown,  38   Mich.    652. 

390;    Kelsey    v.    National  Bank,   69  One  who  knowingly  permits  another 

Penn.  St.  426;   St.   Louis,  &c.  Co.  v.  to  make  collections  for  him  is  bound 

Parker,  59  111.  23;  Vicksburg,  &c.  R.  by  payments  made  to    such   other. 

R    Co.    «.    Ragsdale,  54  Miss.  200:  Sax  v.  Drake,  69  Iowa,  760;  Quinn  v. 

Summerville  v.  Hannibal,  &c.  R.  R.  Dresbach,  16  Pac.  Rep.  763. 
Co.  62  Mo.  391;  Walsh  t>.  Pierce,  12 

62 


Chap.  lY.]  APPOINTMENT    OF    AGENTS.  §  86. 

father's  name  to  his  own  notes  to  the  knowledge  of  the  father 
who  took  no  steps  to  prevent  it,  and  gave  no  notice  that  it  was 
unanthorized,  the  son's  authority  to  so  bind  the  father  was  pre- 
sumed ;'  so  where  a  son  had  been,  to  his  father's  knowledge,  in 
the  habit  of  attending  the  father's  store  and  there  selling  goods, 
taking  orders,  receiving  payment  for  goods  sold  and  ordering 
goods  from  wholesale  houses,  the  authority  of  the  son  to  bind  the 
father  by  a  purchase  of  goods  was  inferred,  although  the  son 
appropriated  the  goods  so  purchased  to  his  own  use  ;•  so  where  a 
son,  acting  for  his  father  in  procuring  a  mortgage,  took  upon 
himself  with  his  father's  consent  the  whole  negotiation,  examined 
the  title,  attended  to  the  execution  of  the  papers,  received  the 
money  from  his  father  and  delivered  it  to  the  mortgagor,  and  in 
short  did  every  thing  there  was  for  an  agent  to  do  in  the  matter, 
and  as  much  as  any  agent  could  have  done  in  a  similar  negotia- 
tion, he  was  conclusively  presumed  to  have  been  the  agent  of 
his  father  in  the  transaction.' 

Again  where  one  charged  as  defendants'  agent  was  shown  to 
have  been  for  years  a  clerk  in  their  store,  and  in  many  instances 
AS  their  agent  to  have  done  business  with  the  plaintiffs,  it  was 
held  that  there  was  sufficient  proof  of  a  general  agency  ;  *  and 
where  one  sent  another  who  desired  to  purchase  lands  of  him,  to 
his  father  to  make  a  bargain,  with  the  statement  that  whatever 
bargain  they  might  make  he  would  agree  to,  it  was  held  that  this 
authorized  the  person  thus  sent  to  regard  the  father  as  the  son's 
agent,  and  bound  the  son  by  his  father's  statements.* 

So  in  an  action  to  charge  a  married  woman  for  goods  sold  and 
delivered  to  her  husband  as  her  agent,  it  was  held  competent  to 

»  Weaver  v.  Ogletree,  39  Ga.  586.  » Matterson  v.  Blackmer,  <Q  Mich. 

"If  io  consequence  of  a  notorious  393. 

agency,  the  agent  is  in  the  habit  of  < Eagle  Bankc.  Smith,  6  Conn.,  71, 

drawing  bills,  and  the  principal  in  the  13  Am.  Dec.  37. 

habit  of  paying  them,  this  is  such  an  'Reeves  «.  Kelley,    30   Mich.    133. 

affirmance  of  his  power  to  draw  that  So  if  one  party  refers  another   to   & 

a  purchaser  of  his  bills  has  a  right  to  third  person  for  information,  as  au- 

expect  payment  of  them  by  the  prin-  thorized  to  answer  for  hira,  he  will  be 

cipal,  and  if  refused  he  may  coerce  boundby  the  statements  of  the  person 

it."  Hooe  V.  Oxley,  1  Wash.  (Va.)  19,  so  referred  to.     Rosenbury  v.  Aiigell, 

1  Am.  Dec.  425.  6  Mich.    508;     Beebe    «.    Knapp,  28 

«Thurber«.  Anderson,  88  111.  167.  Mich.  63;  Beebe  o.  Young,   14  Mich. 

See  also  Watkins  v.  Vince,  2  Stark.  136. 
868. 

63 


C  85,  THE   LAW    OF   AGENCY.  [Book  I. 

show  that  she  had  paid  for  similar  goods  bought  by  her  husband 
dnrinty  the  same  period  within  wliich  the  goods  in  question  were 
bouo-ht  • '  and  evidence  that  a  husband  who  had  the  management 
of  certain  land  belonging  to  his  wife,  ordered  material  for  build- 
ing a  house  thereon,  and  that  the  wife  knew  that  the  house  was 
being  built,  and  occupied  it  when  finished,  was  held  to  warrant  a 
finding  that  the  husband  acted  as  her  agent.' 

So  where  a  person  openly  and  notoriously  exercises  the  func- 
tions of  a  particular  agency  of  a  corporation,  he  will  be  presumed 
to  have  snfiicient  authority  from  the  corporation  to  so  act;'  and 
where  a  manufacturing  company  knowingly  permitted  a  person 
to  sell  goods  in  a  store-house  with  their  name  over  the  door, 
though  in  a  town  distant  from  their  place  of  business,  and  there 
to  sell  goods  of  their  manufacture  and  to  buy  country  produce  aa 
their  agent,  they  were  charged  as  his  principals  in  the  purchase 
of  such  produce.*  So  placing  a  man  in  general  charge  of  a  retail 
store  is  such  a  holding  out  of  him  as  general  agent  as  to  bind  the 
principal  for  goods  purchased  for  sale  in  the  store  by  the  agent, 
although  he  had  agreed  with  the  principal  not  to  buy  any  goods 
without  the  latter's  consent.*  And  where  it  appears  that  the 
alleged  agent  has  repeatedly  performed  acts,  like  the  one  in 
question,  which  the  principal  has  ratified  and  adopted,  his 
authority  for  the  performance  of  the  disputed  act  may  be  in- 
ferred.• 

'  Lovell  V.  Williams,  125  Mass.  439.  assumed  principal,  the  fact  of  agency 

•  Arnold  e.  Spurr,   130  Mass.  847.  may  be  presumed."     Neibles  «.   Min- 

And  see  Thomas  e.  Wells,  140  Mass.  neapolis,  Ac,  R.  R.    Co.,   —   Minn. 

517.  33   N.    W.    Rep.   332.     See  also 

•Singer  Mnfg  Co.  v.  Holdfodt,  86  Rockford,  «fec.,  R.  R.  Co.  v.  Wilcox, 

111.  455.  66  111.  417;   Reynolds  c.  Collins     78 

Where  it  appeared  that  a  person  Ala.   94;   Summerville  v.    Haiini'>al, 

had  acted  for  two  or  three  years  aa  &c.,  R  R.  Co.,  62  Mo.   301;   Vi(  ks- 

the  agent  of  corporation  in  settling  its  burg,  &c.,  R.  R.  Co.  v.  Ragsdale.  54 

obligations,  it  was  held  that  this  was  Miss.  200. 

Bufflcicnt  prima  facie  to  establish  his  <Gilt)raith    v.    Lineberger,    69    N. 

agency.     "  From  the  natural  improb-  Car,    145.     But   this  authority   does 

ability,"  said   Dickinson,   J.,    "that  not  extend   to  borrowing  mr)iiey  or 

one  should  voluntarily,  without  au-  buying  goods  for  himself.     Id. 

thority,  assume  to  act  for  another,  'White  v.  Leighton.   15  Neb.  424. 

Bettling  his  obligations  for  a  consid-  'Jewett  v.    Lawrenceburgh,     &c., 

erable  period  of  time,  and  from  the  R.  R.   Co.,  10   Ind.    539;    Fisher    •. 

fact  that  such  conduct   would  nat-  Campbell,  9  Por.  (Ala.)  210;  Robin- 

urally  come  to  the  knowledge  of  the  son  v.  Green,    5    Harr.    (Del.)    115; 

64 


Chap.  lY.]  APPOINTMENT   OF   AGENTS.  §  87. 

§  87.  Same  Subject— What  not  sufficient— Instances.  But  the 
authority  of  the  husband  to  act  as  the  agent  of  the  wife  cannot 
be  inferred  from  the  marital  relation  alone.*  The  mere  makinsr 
a  note  payable  at  a  certain  bank  will  not  make  the  bank  the 
agent  of  the  payee  to  receive  payment  unless  the  ofBcers  are  dis- 
posed to  accept  the  agency;*  nor  will  tlie  delivery  of  a  subscrip- 
tion list  to  a  person  of  itself  confer  authority  on  such  person  to 
collect  tlie  money  and  discharge  the  subscribers ;  *  nor  is  author- 
ity to  collect  a  debt  to  be  implied  merely  from  the  possession  by 
the  party  claiming  the  authority,  of  a  copy  of  the  account.* 

So  an  agency  will  not  be  presumed  from  a  previous  employ- 
ment in  a  similar  matter  where  it  does  not  appear  that  the  former 
employment  was  with  the  principal's  knowledge,  although  he 
may  have  accepted  the  advantages  resulting  from  such  previous 
employment.' 

And  if  a  debtor  employs  an  agent  to  carry  money  to  his  cred- 
itor, the  creditor  by  accepting  the  money,  does  not  so  make  the 
messenger  his  agent  that  if  at  any  future  time  the  messenger 
should  appropriate  money  so  sent,  the  loss  would  be  that  of  the 
creditor  and  not  of  the  debtor ;  •  and  if  a  debtor  leaves  with  A 
money  to  pay  a  note,  informing  the  creditor  of  that  fact,  and  the 
creditor  thereupon  writes  to  A  to  bring  or  send  the  money  to 
him,  this  does  not  make  A  the  agent  of  the  creditor  so  as  to 
impose  upon  the  latter  the  loss  of  the  money  while  in  A's  pos- 
session.' 

Nor  will  the  fact  that  one  as  a  father  or  friend  merely  gives 
information  or  advice  in  reference  to  a  land  trade,  make  such 
father  or  friend  the  agent  of  the  person  to  whom  such  advice  or 
information  is  given.* 

Rawson  v.  Curtiss,  19  111.  456;  Em-  »Cobb«.  Hall,  49  Iowa,  366.     And 

erson  v.  Coggswell,  16  Me.  77;   Odi-  see  Abrahams  v.  Weiller,  87  111.  179. 

orne  v.  Maxcy,  15  Mass.  39;  Walsh  v.  'Fisher  v.  Lodge,  50  Iowa,  459. 

Pierce,  12  Vt.  130;  Downer  v.  Morri-  'First  National  Bank  v.  Free,  67 

son,  2  Gratt.  (Va.)  237.  Iowa,  11. 

»  Price  V.  Seydel,  46  Iowa,  696;  An-  •  McNamara  »,  McNamara,  62  Ga. 

dersoa  v.  Gregg,  44  Miss.  170;  Craw-  200. 

ford  V.  Redus,  54  Miss.  700.  See  also  upon  this  general  subject, 

•Pease  v.  Warren,  29  Mich.  9.  Whitehead  v.  Tuckett,  15  East,  400; 

«Antram«.  Thorndell,  74Penn.  St.  Hazard  v.  Tread  well,   1    Stra.   506; 

442.  Burt  v.  Palmer,  5  Esp.  145;  Peto  «. 

*Dutcher  t.  Beckwith,  45  111.  460,  Hague, /d.  134;  Anderson©.  Sander- 

92  Am.  Dec.  232.  son,  2  Stark.  204;  Clifford  v.  Burton, 
5                                        65 


§88.  THE   LAW   OF   AGENCY.  [Book  I. 

§  88.  Authority  by  express,  unwritten  Appointment.  It  has 
been  seen  in  the  preceding  sections  how  an  authority  may  arise 
from  implication,  presumption  or  estoppel.  Authority  may  also 
be  conferred  by  express  words  spoken  with  that  intent. 

And  it  is  the  general  rule  of  law  that,  with  the  exception  of 
those  cases  in  which  the  authority  is  required  to  be  in  writing 
and  in  which  it  must  be  under  seal, — exceptions  hereafter  to  be 
noticed, — authority  for  the  doing  of  any  act  lawful  to  be  done 
may  be  created  by  parol.* 

§  89.  By  Parol— To  sell  or  lease  Lands.  Thus,  except  in 
those  States*  where  the  statutes  expressly  require  the  authority  to 
be  in  writing,  an  agent  may  be  authorized  by  parol  to  make  a 
valid  contract  for  the  sale'  or  the  leasing*  of  his  principal's  lands. 
But  it  has  been  said  that  parol  authority  to  thus  charge  a  princi- 
pal's realty  ought  to  be  express  and  clearly  established.* 

§  90.  By  Parol— To  demand  and  collect  Bents.  So  parol  au- 
thority is  sufficient  to  authorize  a  person  to  act  as  agent  for  a 
lessor  in  the  collection  of  rent  or  in  demanding  its  payment.* 

§  91.  By  Parol— To  execute  written  Instruments  not  under 
Seal.  And  so,  except  in  those  cases  in  which  the  authority  is  by 
some  statute  required  to  be  in  writing,  and  except  where  the 

1   Bing.    199;    Fenner  v.   Lewis,   10  538;  Johnson  v.  Dodge,  17  111.  433; 

Johns.  (N.  Y.)38;  Bryan  «.  Jackson,  Hawkins  t>.  Chace,  19  Pick.  (Mass.) 

4  Conn.  291.  502;  Talbot  v.  Bowen,  1  A.  K.  Marsh. 

'  Story  on  Agency,  §  47;    Ewell's  (Ky.)  436,  10  Am.  Dec.  747;  Ulen  v, 

Evans'  Agency,  24.  Kittredge,    7  Mass.    233;    Heard    v. 

a  As  in  Alabama,  Arkansas,  Call-  PiUey,  4  Ch.  App.  Cases,  548;  Tay- 

fornia,  Colorado.  Illinois,  Michigan,  lor  v.  Merrill,  55  111.  52;  Rutenberg 

Missouri,  Nebraska,  New  Hampshire,  v.  Main,  47  C*l.  213;  Moody  v.  Smith, 

New  Jersey,  Ohio,  and  Pennsylvania.  70  N.  Y.  598;  Riley  v.  Minor,  29  Mo. 

3  Lawrence  v.  Taylor,  5  Hill  (N.Y.)  439;  Rottman  v.  Wasson,  5  Kan.  552. 

107;   Champlin  v.  Parish,    11   Paige  <  Lake  c.  Campbell,  18111.  106;  Mc- 

(N.  Y.)  405;  McWhorter®.  McMahan,  Comb  v.  Wright,  4  Johns.  Ch.  (N.Y.) 

10  Paige  (N.    Y)  386;    Newton    v.  667. 

Bronson,  13  N.  Y.  587.  67  Am.  Dec.  »Lauer  v.  Brandow.  43  Wis.  558; 

89;  Worrallc.  Munn,  5N.  Y.  229,  55  Challoner    e.    Bouck,    56    Wis.    652; 

Am.    Dec.    330;    Curtis  v.  Blair.   26  Union  Mutual  Life  Ins.  Co.  «.  Maa- 

Miss.  309,  59  Am.  Dec.  257;  Morrow  ten,   3  Fed.   Rep.    881;    Bosseau    «. 

V.  Higgins,  29  Ala.  448;  Dodge  r.  Hop-  O'Brien,  4  Biss.  (U.  S.  C.  a)  305,  1 

kins,  14  Wis.  630;  Watson  v.  Sher-  Myers  Fed.  Dec.  §  58. 

man,  84  111.  263;  Brown  v.  Eaton,  21  'Sheets  e.  Selden,  2  Wall.  (U.  8.) 

Minn.  409;  Dickerman  v.  Ashton,  IcL  177. 

66 


Chap,  ly.] 


APPOINTMENT   OF    AGENTS. 


§93. 


Instrument  to  be  executed  is  to  be  under  seal,  authority  may  be 
conferred  by  parol  to  execute  bills,  notes  and  all  other  contracts 
in  writing.* 

§  92.  What  Writing  Buflloient  when  Writing  required. 
But  even  in  those  cases  in  which  the  authority  is,  by  the  statute, 
required  to  be  conferred  by  writing,  it  need  not,  except  when 
the  instrument  to  be  executed  is  under  seal,  be  by  a  formal  or  a 
sealed  writing.     It  may  be  conferred  by  letter'  or  telegram." 

§  93.  Authority  to  execute  sealed  Instruments  must  be  under 
Seal;  Where,  however,  an  instrument  under  seal  is  to  be  exe- 
cuted the  rule  is  well  settled  that  the  authority  must  be  conferred 
by  an  instrument  of  equal  dignity  and  solemnity,  and  it  must 
therefore  be  under  seal.*    But  while  this  rule  is  firmly  established, 


»  Stackpole  v.  Arnold,  11  Mass.  27, 
6  Am.  Dec.  150;  Emerson  v.  Provi- 
dence Hat  Mnf  g.  Co.  12  Mass.  237,  7 
Am.  Dec.  66;  New  England  Marine 
Ins.  Co.  e.  DeWolf,  8  Pick.  (Mass.) 
56;  Shaw  ».  Hudd,  8  Pick.  (Mass.)  9; 
Small  «.  O wings,  1  Md.  Ch.  363; 
Welch  «.  Hoover,  5  Cranch,  (U.  S.  C. 
C.)  444;  Webb  v.  Browning,  14  Mo. 
354;  Wagoner  v.  Watts,  44  N.  J.  L. 
136;  Hammond  v.  Hannin,  21  Mich. 
374. 

s  Thu3  where  the  owner  of  land  in 
Kansas  City  wrote  from  Chicago, 
where  he  resided,  to  his  agent  in  Kan- 
sas City,  "  I  leave  the  sale  of  the  lots 
pretty  much  with  you;  if  the  party, 
or  any  one  ia  willing  to  pay  sixty 
dollars  a  foot,  one-third  cash,  and  the 
balance  in  one  and  two  years,  interest 
seven  per  cent,  per  annum,  and  pay 
commission  of  sale,  I  think  I  am 
willing  to  have  you  make  out  a  deed, 
and  I  will  perfect  it,  hold  till  then" — 
it  was  held  that  this  authorized  the 
agent  to  make  a  contract  binding 
upon  the  owner  for  a  present  sale  of 
the  lots.  Smith  v.  Allen,  86  Mo.  178. 
citing  Stewart  t>.  Wood,  63  Mo.  256; 
Lyont).  Pollock,  99  U.  8.  668;  John- 
son D.  Dodge,  17  111.  441;  Lawrence 
•.  Taylor,  5  Hill  (N.  T.)  107;  Hawk- 


ins c.  Chace,  19  Pick.  (Mass.)  502. 
In  Lyon  v.  Pollock,  cited  by  the 
court,  A  wrote  to  C  at  San  Antonio, 
Texas.  "  I  wish  you  to  manage  my 
property  as  you  would  your  own.  If 
a  good  opportunity  offers  to  sell 
everything  I  have,  I  would  be  glad 
to  sell.  It  may  be  parties  will  come 
into  San  Antonio  who  will  be  glad  to 
purchase  my  gas  stock  and  real 
estate."  It  was  held  that  C  was 
thereby  authorized  to  contract  for  the 
sale  of  the  real  estate  but  not  to  con- 
vey it.  See  also  Brown  v.  Eaton,  21 
Minn.  409;  Newton  v.  Bronson,  13 
N.  Y.  687,  67  Am.  Dec.  89.  See  also 
post,  §  318. 

» Godwin  v.  Francis,  L.  R.  5  C.  P. 
295. 

<  Elliott  V.  Stocks,  67  Ala.  336; 
Watson  V.  Sherman,  84111.  263;  John- 
son V.  Dodge,  17  111.  433;  Peabody  v. 
Hoard,  46  111.  243;  Harshaw  v.  Mc- 
Kesson, 65  N.  C.  688;  Roweu.  Ware. 
80  Ga.  278;  Maus  ®.  Worthing,  3 
Scam.  (111.)  26;  Rhode  v.  Louthain, 
8  Blackf.  (Ind.)  413;  Reed  v.  Vau- 
Ostrand,  1  Wend.  (N.  Y.)  424,  19  Am. 
Dec.  529;  Blood  r>.  Goodrich,  9  Wend. 
(N.  Y.)  68,  24  Am.  Dec.  121;  Wells 
V.  Evans,  20  Wend.  (N.  Y.)  251; 
Despatch  Line  v.  Bellamy  Mnf'g  Co„ 


67 


§94. 


THB   LAW    OF    AGENCY. 


[Book  L 


it  is  highly  technical  in  its  nature  and  confessedly  stands  upon 
very  narrow  ground.  The  whole  theory  of  the  solemnity  of  a 
seal  is  totally  unsuited  to  the  business  methods  of  the  present 
day  and  the  constant  tendency  of  courts  and  legislatures  is  to 
ignore  the  distinctions  formerly  founded  upon  its  use.' 

8  94.  Same  Subject— Authority  to  fill  Blanks  in  Deeds.  Fol- 
lowing the  rule  laid  down  in  the  preceding  section,  and  as  a 
necessary  consequence  of  it,  it  is  held  in  many  cases  that  author- 
ity  to  till  blanks  in  deeds  can  be  conferred  only  by  an  instrument 
under  seal.'     This  rule,  however,  like  the  other,  has  met  with 


12  N.  H.  205,  37  Am.  Dec.  203;  Heath 
V.  Nutter,  50  Me.  378;  Hanford  v. 
McNrtir.  9  Wend  (N.  Y.)54;  Cooper 
V.  Rankin,  5  Binn.  (Penn.)  613;  Gor- 
don V.  Bulkeley,  14Serg  &  R.  (Penn.) 
831;  Stetson  v  Paten,  2  Gieenl  (Me.) 
358,  11  Am.  Dec.  Ill;  Drumright  v. 
Philpot,  16  Ga.  424,  60  Am.  Dec.  738; 
Graham  v.  Holt,  3  Iredell's  (N.  Car.) 
Law  300,  40  Am.  Dec.  408;  Pain^^  v. 
Tucker  21  Me.  138,  38  Am.  Dec.  255; 
Williams  v.  Crutcher,  5  How.  (Miss.) 
71;  35  Am.  Dec.  422;  Wheeler  v. 
Nevins,  34  Me,  54;  Bakers.  Freeman, 
35  Me.  485;  Shuetze  v.  Bailey,  40 
Mo.  69;  Smith  «.  Perry,  5  Dutcher 
(N.  J.)  74;  Gage  «.  Gage,  10Fo8t.(N. 
H.)420;  Spurr  v.  Trimble,  1  A.  K. 
Marsh.  (Ky.)  278;  McMurtry*  Brown, 
6  Neb.  368;  Adams  v.  Power,  52  Miss. 
828;  McNaughten  v.  Partridge,  11 
Ohio  223;  Smith  «.  Dickinson,  6 
Hump.  (Tenn.)  261;  Mitchell  v. 
Sproul.  5  J.  J.  Mnrsh.  (Ky.)  264;  Mc- 
Murtry  v.  Frank,  4  T.  B.  Monr.  (Ky.) 
39;  Longo.  Hurtwell,  5  Vroom  (N. 
J.)  116;  Piatt  v.  McCuUough,  1  Mc- 
Lean (U.  8.  C.  C.)69. 

>  "  In  modern  times,"  says  Champ- 
LiN,  J.,  in  Barton  v.  Gray,  57  Mich, 
p.  634,  "the  attaching  of  a  seal  to  a 
sigualure  is  not  regarded  with  that 
reverence  which  was  formerly  the 
case,  and  when  the  Legislature  en- 
acted that  a  seal  or  wafer  was  unnec- 
essary, but  that  a   scroll    or    other 


device  should  be  sufficient,  the  solem- 
nity attending  the  execution  of  such 
contract  vanished;  and  when  the 
Legislature  furuier  provided  that  no 
instrument  should  be  held  invalid  for 
want  of  a  seal,  and  it  became  under 
the  statute  mere  prima  facie  evidence 
of  consideration,  the  affixing  of  seals, 
except  to  instruments  required  by 
law  to  be  under  seal,  became  of  no 
practical  importance. 

a  Williams  v.  Crutcher,  6  How. 
(Miss.)  71,  35  Am.  Dec.  422;  Daven- 
port V.  Sleight,  2  Dev.  &  Bat.  (N.  C.) 
L.  381,  31  Am.  Dec.  420;  Burns  •. 
Lynde,  6  Allen  (Mass.),  305;  Preston 
«.  Hull,  33  Gratt.  (Va.)  600,  14  Am. 
Rep.  153;  Wunderlin  v.  Cadogan,  50 
Cal.  613;  Adamson  v.  Hartman,  40 
Ark.  58;  Upton  v.  Archer,  41  Cal.  85, 
10  Am.  Rep.  266;  Hibblewhite  t.  Mc- 
Morine,  6  M.  &  W.  200. 

The  reasons  upon  which  this  rule  is 
based  are  well  stated  by  Staples,  J., 
in  Preston  v.  Hull,  supra,  as  follows  : 
*'  A  bond  is  a  deed  whereby  the 
obligor  promises  to  pay  a  certain  sum 
of  money  to  another  at  a  day  ap- 
pointed. 2  Black.  Com.  34(J.  Ad 
obligor  and  obligee  are  essential  to 
the  existence  and  constitution  of  such 
an  instrument.  It  is  not  indispensable 
that  the  party  to  whom  the  promise 
is  made  should  be  mentioned  eo 
nomine,  that  his  name  of  baptism  and 
surname  shall  be  given,  but  he  must 

68 


Chap.  lY.] 


APPOINTMENT    OF    AGENTS. 


§94. 


much  disapproval  in  modern  times,  and  though  it  may  still  be 
said  to  be  the  general  rule  there  has  been  manifested  in  the  more 


be  in  some  unmistakable  manner  des- 
ignated in  the  instrument.  A  writ- 
ing, thougti  executed  with  all  the 
Bolemnities  of  a  deed,  without  such 
obligee,  is  a  mere  nullity.  It  imposes 
no  liability  upon  the  party  issuing  it. 
It  confers  no  rights  upon  him  who 
receives  or  holds  it.  It  is  not  simply 
an  imperfect  deed;  it  is  no  deed  at 
all.  It  only  becomes  a  deed  when 
the  name  of  an  obligee  is  inserted, 
and  delivery  made  by  the  obligor  or 
by  some  one  legally  authorized  by 
him.  If  the  blank  is  filled  by  an 
agent,  then  the  agent  as  certainly 
makes  a  deed  as  though  the  entire 
obligation  had  been  written,  signed, 
sealed  and  delivered  by  him.  His 
act  binds  a  princpal  not  before 
bound  It  creates  a  contract  having 
no  previous  existence.  It  is  true  the 
act  in  question  is  merely  the  insertion 
of  a  name.  Still  its  effect  is  to  impart 
vitality  to  a  piece  of  waste  paper.  It 
calls  new  rights  and  obligations  into 
existence.  It  is  followed  by  all  the 
consequences  resulting  from  the  exe- 
cution of  the  most  solemn  instru- 
ments. 

"The  argument  sometimes  ad- 
vanced, that  there  can  be  no  danger 
or  difficulty  in  conferring  the  power 
by  parol,  when  nothing  remains  to  be 
done  but  the  msertion  of  a  name  to 
render  the  instrument  complete,  does 
not  meet  the  real  issue.  The  ques- 
tion is  not  one  of  trust  and  con- 
fidence reposed,  but  of  power  con- 
ferred. In  the  numerous  and  diver- 
sified transactions  of  mankind,  agen- 
cies of  the  gravest  character  are  often 
created  by  parol.  A  partner  may 
bind  his  copartner  to  any  amount, 
for  any  matter  within  the  scope  of 
the  partnership,  by  a  note  executed 
in  the  partnership  name.     The  au- 


thority of  an  agent  to  sell  the  land  of 
his  principal  may  be  conferred  with- 
out writing,  and  the  latter  may  thus 
be  bound  irrevocably  for  his  entire 
estate.  In  the  execution  and  indorsa- 
tion of  negotiable  paper,  powers 
may  be  and  are  often  conferred  by 
parol  upon  agents,  involving  liabili- 
ties to  the  amount  of  millions.  The 
law  recognizes  such  agencies  as  essen- 
tial to  the  commerce  of  the  world. 
Why  may  not  the  agent,  in  all  these 
cases,  impose  the  same  liabilities  by 
deed,  in  the  name  of  his  principal  ? 
If  he  may  sell  the  land,  fix  the  price, 
and  agree  upon  all  the  terms  of  the 
contract,  why  may  he  not  perform 
the  more  formal  act  of  executing  the 
conveyance  ?  The  answer  is,  the 
authority  of  the  agent  must  be  com- 
mensurate with  the  act  he  performs. 
The  stream  can  never  be  higher  than 
its  source.  If  the  act  of  the  agent 
is  the  execution  and  delivery  of  a 
deed,  his  authority  must  be  by  deed. 
It  does  not  matter  how  much  of  the 
instrument  may  have  been  written  by 
the  principal,  if  it  is  a  mere  nullity 
when  it  leaves  his  hands,  and  only 
becomes  operative  by  act  of  the  agent; 
upon  every  principle  of  sound  legal 
reasoning  the  result  must  inevitably 
be  the  same.  Whenever  the  agent 
undertakes  to  bind  his  principal  by 
an  act,  his  authority,  in  point  of  dig- 
nity, must  be  co-equal  with  the  act. 
The  question  is  not,  therefore, whether 
it  is  expedient  that  a  mere  parol  agent 
shall  have  power  to  fill  the  blanks 
with  the  name  of  an  obligee;  but 
whether  it  can  be  done  and  sustained 
without  violating  the  well-established 
principles  of  law. 

"  A  little  reflection  will  show  that 
these  principles  are  not  without  sub- 
stantial reasons  to  support  them.     At 


69 


§9i. 


THE    LAW    OF    AGENCY. 


[Book  1. 


recent  cases  a  strong  disposition  to  disregard  it  as  based  upon 
what  has  now  become  a  meaningless  technicality.*    To  the  extent 


common  law  a  sealed  instrument  im- 
posed peculiar  liabilities.  It  was  not 
affected  by  any  statutes  of  limitations. 
It  operated  as  an  estoppel.  The 
obligee  was  not  permitted  to  aver 
any  want  of  consideration  to  avoid 
it;  nor  could  he  defeat  an  action  at 
law  therein  by  showing  any  failure  of 
title,  or  breach  of  contract,  or  mis- 
take, or  fraud  in  the  procurement  of 
the  bond.  It  is  true  that  some  of 
these  obstacles  have  been  removed  by 
statute,  and  parties  may  now  defend 
themselves  in  the  common  law  courts 
upon  grounds  purely  equitable;  but 
both  in  Virginia  and  in  England 
sealed  instruments  confer  rights  and 
impose  obligations,  which  can  never 
grow  out  of  the  execution  of  any 
mere  parol  contracts.  It  is  reason- 
able and  just,  therefore,  that  a  party 
setting  up  a  deed,  and  seeking  to 
enforce  it,  shall  be  prepared  to  show, 
if  necessary,  that  it  is  the  act  of  the 
grantor  himself,  or  of  some  one  em- 
powered by  an  instrument  of  equal 
dignity  with  the  deed." 

'Thus  it  is  held  "that  parol  au- 
thority is  suflficient  to  authorize  the 
filling  of  a  blank  in  a  sealed  instru- 
ment and  that  such  authority  may  be 
given  in  any  way  by  which  it  might 
be  given  in  case  of  an  unsealed  instru- 
ment." State  B.Young, 23  Minn.  551; 
Drury  v.  Foster,  2  Wall.  (U.  S.)  24. 
See  also  South  Berwick  ©.Huntress,  53 
Me.  89,  87  Am.  Dec.  635,  Wiley  tJ. 
Moor,  17  S.  &  R.  (Penn.)  438,  17 
Am.  Dec.  696;  Commercial  Bank  v. 
Kortright,  22  Wend.  (N.  Y.)  348,  34 
Am.  Dec.  317;  Wooley  «.  Constant, 
4  Johns.  (N.  Y.)  54.  4  Am.  Dec.  246; 
Ex  parte  Decker,  6  Cow.  (N.  Y.)  60; 
Ex  parte  Kerwin.  8  Id.  118;  Humph- 
reys V.  Guillow,  13  N.  H,  885, 38  Am. 
Dec.  499. 


In  South  Berwick  t>.  Huntress, 
tupra,  Kent,  J.,  says  :  "  The  exam- 
ination of  various  cases  in  this  coun- 
try and  in  England  shows  that  whilst 
in  some  of  them  the  strict  rule  has 
been  recognized,  yet  there  are  none 
that  deny  the  proposition  that  in  some 
cases  blanks  may  be  filled  in  sealed 
instruments  by  a  third  person  who  is 
not  authorized  by  power  under  seal. 
The  only  distinction  taken  between 
parol  contracts  and  those  under  seal 
is  a  purely  technical  one,  viz.,  that 
an  authority  to  make  a  deed  or  exe- 
cute a  sealed  instrument  for  another 
must  be  of  as  high  a  character  as  the 
instrument,  ».  e.,  be  under  seal.  It 
is  an  unquestioned  doctrine  of  the 
common  law  that  a  person  not  auth- 
orized by  power  under  seal  cannot 
execute  a  sealed  instrument  for  an- 
other, or  change  a  parol  contract  into 
a  specialty.  Now,  if  it  is  the  absence 
of  the  seal  on  the  authority  that  pre- 
vents the  validity  of  the  execution,  it 
would  seem  that  nothing  could  supply 
it,  not  even  consent  by  parol.  And 
yet,  as  before  stated, all  the  cases  seem 
to  recognize  the  validity  of  such  fill- 
ing up,  if  done  in  the  presence  of  the 
grantor  or  obligor.  A  distinction  is 
taken  between  express  consent  in- 
ferred from  the  act  being  done  in  the 
presence  of  the  grantor,  and  consent 
given  before  or  after,  or  iinplieJ  con- 
sent. Warring  v.  Williams,  8  Pick. 
332;  S.  C.,Id.  .325;  Hudson  r).  Revett,  5 
Bing.  368,  15  Eng.  Com.  L.  467. 

"  In  these  cases  it  is  assumed  that 
the  act  is  done  by  the  assent  and 
authority  of  the  grantor  because  he  is 
present  when  it  is  done  by  another. 
And  yet,  if  the  authority  must  be 
under  seal,  where  is  the  evidence  of 
it  ?  The  whole  evidence  is  parol;  the 
fact  of   the  presence  and   assent  is 


70 


Chap.  IV.'] 


APPOINTMENT   OF   AGENTS. 


§95. 


that  statutory  enactments  have  dispensed  with  the  necessity  of  a 
seal  or  have  robbed  it  of  its  former  significance,  the  rule  itself 
must  be  regarded  as  without  foundation. 

But  although  the  rule  might  otherwise  prevail,  the  principal 
may  by  his  conduct  estop  himself  from  relying  upon  it.  Tiius 
where  a  grantor  signs  and  seals  a  deed,  leaving  unfilled  blanks, 
and  gives  it  to  an  agent  with  authority  to  fill  the  blanks  and 
deliver  it,  and  the  agent  fills  the  blanks  as  authorized  and 
delivers  it  to  an  innocent  grantee  for  value  and  without  knowl- 
edge, the  grantor  will  be  estopped  from  asserting  as  against  such 
grantee,  that  the  agent's  authority  was  insufllcient.* 

§  95.  Same  Subject— How  -when  Seal  superfluoixs.  But  if  a 
seal  was  not  essential  to  the  validity  of  the  instrument  executed 
by  the  agent,  its  presence  will  ordinarily  be  treated  as  a  mere 
redundancy,  and  if  the  agent's  authority  to  execute  it,  or  to  fill 
blanks  in  it,  if  it  were  without  seal,  was  ample,  the  seal  will  be 
disregarded,  and  the  instrument  will  stand  as  a  simple  contract.' 


proved  by  parol.  The  act  derives  its 
efficacy  only  from  authority  depend- 
ent on  other  sources  than  a  seal.  It 
is  consent  that  gives  it  vitality,  and 
that  consent,  it  is  proved  by  parol, 
was  given  by  parol.  Why  may  not 
consent  be  established  by  proof  that 
the  authority  was  directly  given  be- 
fore the  act  was  done,  and  when  the 
paper  was  not  before  him?  There  is 
no  clearer  parol  authority  in  one  case 
than  in  the  other.  It  is,  after  all.  a 
mere  question  of  assent.  Now,  con- 
«ient  may  be  implied  as  well  as  ex- 
pressed, and  when  fairly  and  legally 
inferred,  it  is  actual  and  effective 
consent  as  much  so  as  when  direct 
authority  is  shown  by  parol.  It  would 
seem  to  follow  that  the  rule  requiring 
authority  under  seal  should  either  be 
strictly  enforced  in  all  cases  of  bonds 
or  deeds,  so  that  no  interlineations  or 
insertions  can  be  legally  made  with- 
out such  power,  or  the  rule  should  be 
that  such  filling  up  may  be  made 
when  authority  or  consent  is  clearly 
established  by  parol.     And  this  on 


the  ground  that,  if  necessary,  the  act 
may  be  considered  as  having  been 
done,  in  substance,  by  the  grantor 
himself.  When  the  instrument  is  a 
sealed  instrument  when  signed  by  the 
party,  the  filling  in  of  the  blanks 
afterwards  by  another  is  not,  strictly 
speaking,  the  execution  of  a  sealed 
instrument.  That  has  already  been 
done  by  the  party  himself.  The  third 
party  does  not  make  it  a  specialty  by 
his  act.  It  was  one  before.  The 
filling  up  merely  perfects  an  imper- 
fect sealed  deed  or  bond." 

•Swartz  V.   Ballou,  47  Iowa,   188, 

29  Am.  Rep.  470;  Phelps  v.  Sullivan, 
140  Mhss.  36,  54  Am.  Rep.  442;  Field 
V.  Stagg.  52  Mo.  534,  14  Am.  Rep. 
435;  Van  Etta  v.  Evenson,  28  Wis.  33, 
9  Am.  Rep.  486. 

•Wagoner  v.  Watts,  44  N.  J.  L. 
128;  Long  v.  Hartwell,  5  Vroom,  (N. 
J.)  116;  Morrow  v.  Higgins,  29  Ala. 
448;  Dutton  v,  Warschauer,  21  Cal. 
609;  Worrall  v.  Munn,  5  N.  Y.  229, 
55  Am.  Dec.  330;  Thomas  v.  Joslin, 

30  Minn.  388;  Wood  v.  Auburn,  &c.. 


96 


THE   LAW    OF   AGENCY. 


[Book  I. 


8  96.  How  in  Principal's  Presence  and  by  his  Direction. 
What  however,  is  done  in  the  presence  and  by  the  express  or 
implied  direction  of  the  principal,  is,  in  law,  his  act,  and  an 
ao^ent  may  therefore  be  authorized  by  parol  to  bind  his  principal 
even  upon  sealed  instruments,  if  the  instrument  be  executed  in 
the  presence  of  the  principal  and  by  his  direction  or  tacit  con- 
sent.* This  rule  extends  also  to  the  filling  of  blanks  in  deeds 
and  other  instruments  when  done  under  like  circumstances.' 

S  97.  Appointment  by  Corporations.  It  was  the  doctrine  of 
the  common  law  that  a  corporation  could  contract  only  by  deed 
under  its  corporate  seal,  and  that  its  appointment  of  an  agent 
could  be  made  only  in  the  same  manner.  This  doctrine,  how- 
ever is  now  quite  universally  abandoned,  both  in  England  and 
in  this  country,  and,  in  the  absence  of  contrary  provisions  in  its 
constating  instruments  or  in  the  laws  of  the  State,  a  corporation 
may  confer  authority  upon  an  agent  for  the  performance  of  any 
act  within  the  scope  of  its  corporate  powers  by  unsealed  writing 
or  by  parol;  and  such  authority  may  also  be  implied,  as  in  other 
cases,  from  the  acquiescence  of  the  corporation  or  from  its  adop- 
tion or  recognition  of  the  act* 


R.  R.  Co.,  8  N.  Y.  160;   Adams  «. 
Power,  52  Miss.  828. 

lEggleston  v.  Wagner,  46  Mich. 
610;  Just  V.  Wise,  42  Mich.  573;  John- 
son V.  Van  Velsor,  43  Mich.  208;  Har- 
Bhaw  e.  McKesson,  65  N.  C.  683; 
Croy  V.  Busenbark,  72  Ind.  48;  Meyer 
V.  King,  29  La.  Ann.  567;  Handyside 
V.  Cameron,  21  111.  588,  74  Am.  Dec. 
119;  Gardner  v.  Gardner,  5  Cush. 
(Mass  )  4S3;  52  Am.  Dec.  740;  Ball  v. 
Dunsterville,  4  T.  R.  313;  King  v. 
Longnor,  1  Nev.  &  M.  576,  S.  C.  4 
Barn.  &  Adol.  647;  Wood  v.  Good- 
ridge,  6  Cush.  (Mass.)  117,  52  Am, 
Dec.  771 ;  Jansen  v.  McCahill,  22  Cal. 
565;  Mutual  Ben.  L.  Ins.  Co.  v. 
Brown,  30  N.  J.  Eq.  202;  Mackay  v. 
Bloodgood,  9  Johns.  (N.  Y.)285;  Mc- 
Murtry  v.  Brown,  6  Neb.  368. 

« Hudson  V.  Revett,  5  Bing.  368; 
McMurtry  e.  Brown,  6  Neb.  363; 
Harshaw  «.  McKesson,  65  N.  C.  638; 


Ball  V.  Dunsterville,  4  T.  R.  818; 
Mackay  v.  Bloodgood,  9  Johns.  (N. 
T.)  285. 

3  Detroit  «.  Jackson,  1  Doug. 
(Mich.)  106;  Jhons  e.  People,  25 
Mich.  499 ;  Taymouth  v.  Koehler,  35 
Mich.  26;  Bank  of  United  States  v. 
Dandridge,  12  Wheat.  (U.  8.)  64; 
Yarborough  v.  Bank  of  England,  1(5 
East  6;  Burrill  v.  Nahant  Bank,  2 
Mete.  (Mass.)  163.  35  Am.  Dec.  895; 
Rosse.  City  of  Madison,  1  Ind.  281, 
48  Am.  Dec.  361;  Rockford,  &c.  R. 
R.  Co.  V.  Wilcox,  66  111.  417:  Kiley  v. 
Forsee,  57  Mo.  390;  Smiley  v.  Mayor, 
6  Heisk.  (Tenn.)  604;  Go  wen  Mar- 
ble Co.  V.  Tarrant,  73  111.  608;  Maine 
Stage  Co.  V.  Longley,  14  Me.  444; 
Peterson  v.  Mayor,  17  N.  Y.  449; 
Warren  v.  Ocean  Ins.  Co.  16  Me  439, 
33  Am.  Dec.  674;  Southgate  v.  At- 
lantic &  Pacific  R.  R.  Co.  61  Mo.  89. 


72 


Chap.  ly.]         APPOINTMENT  OF  AGENTS.  §  100 

§  98.  Same  Subject  — To  execute  Deed  of  corporate  Eealty. 
And  it  is  not  necessary  that  the  authority  of  the  agent  even  to 
execute  a  deed  of  the  corporate  real  estate  should  be  under  seal. 
The  authority  to  convey  may  be  conferred  by  a  vote  of  the 
trustees  or  other  managing  officers,  and  authority  to  convey 
carries  with  it  authority  to  execute  suitable  and  proper  instru- 
ments for  that  purpose,  and  to  affix  the  corporate  seal  to  an 
instrument  requiring  it.*  And  the  same  rule  extends  to  muni- 
cipal and  quasi  municipal  corporations.* 

IL 

EVIDENOB   OF   APPOINTMENT. 

§  99.  Purpose  of  this  Subdivision.  Some  illustrations  have 
already  been  given  of  the  nature  of  the  evidence  that  may  bo 
competent  upon  the  question  whether  an  agency  exists  or  not, 
and  many  others  will  hereafter  appear.  But  it  is  necessary  to 
consider  here  a  few  of  the  general  rules  which  apply  to  this 
branch  of  the  subject. 

§  100.  Agent's  Authority  cannot  be  established  by  his  own 
Statements  or  Admissions.  The  authority  of  an  agent,  where 
the  question  of  its  existence  is  directly  involved,  can  only  be 
established  by  tracing  it  to  its  source  in  some  word  or  act  of  the 
alleged  principal.  The  agent  certainly  cannot  confer  authority 
upon  himself.  Evidence  of  his  own  statements  or  admissions, 
therefore,  is  not  admissible  against  his  principal  for  the  purpose 

•Burrill  v.  Nahant  Bank,  2  Mete.  town  landing  if  he  thinks  it  will  be 
(Mass.)  1G3,  35  Am.  Dec.  395;  Inhab-  for  the  interest  of  the  town  to  do  so, 
itants  of  Nobleboro  v.  Clark.  68  Me.  and  to  settle  all  other  matters  with 
87,  28  Am,  Rep.  22;  Marr  v.  Given,  the  railroad  company;"  and  it  was 
23  Me.  55;  "Valentine  v.  Piper,  22  held  that  by  this  vote,  H  had  author- 
Pick.  (Mass.)  85,  33  Am.  Dec.  715;  ity  to  sell  the  town  landing  and  to 
People  V.  Boring,  8  Cal.  407;  Hems-  execute  a  proper  deed  of  conveyance 
treet  v.  Burdick,  90  111.  450.  thereof  in  behalf  of  the  town.      In- 

*  Thus  it  appeared  by  the  records  of  habitants  of  Nobleboro  v.   Clark,  68 

the  meeting  that  the  inhabitants  of  a  Me.   87,   28  Am.  Rep.  23.     See  also 

town  at  a  legal  town  meeting  chose  Ross  v.  City  of  Madison,  1  Ind.    281, 

H  "agent  to  settle  with  the  railroad  48  Am.  Dec.  361. 
company  and  sell  the  balance  of  the 

73 


§101. 


THE   LAW   OF    AGENOT. 


[Book  I. 


of  establishing,*  enlarging*  or  renewing*  his  authority  ;  nor  can 
his  authority  be  established  by  showing  that  he  acted  as  agent  or 
that  he  claimed  to  have  the  powers  which  he  assumed  to  exer- 


cise. 


So  where  his  authority  is  in  writing  he  cannot  extend  its  scope 
by  his  own  declarations.'  His  acts  and  statements  cannot  be 
made  use  of  against  the  principal  until  the  fact  of  the  agency 
has  been  shown  by  other  evidence.* 

His  statements  and  admissions  would,  however,  in  any  proper 
case  be  admissible  against  himself.'  So  the  statements  and  deal- 
ings of  the  principal  with  third  persons  in  recognition  of  the 
alleged  agency  are  admissible  against  the  principal." 

§  101.  Agent's  Authority  cannot  be  proved  by  general  Repu- 
tation. The  authority  of  a  private  agent  to  represent  his  prin- 
cipal cannot  be  established  by  proof  that  he  was  generally 
reputed  to  be  so  authorized.* 


•Hatch  V.  Squires,  11  Mich.  185; 
Kornemann  v.  Monaghan,  24  Mich. 
36;  Reynolds  v.  Continental  Ins.  Co. 
36  Mich.  131 ;  Harker  v.  Dement,  9 
Gill  (Md.)  7, 53  Am.  Dec.  670;  Maxey 
V.  Heckethorn,  44  111.  438 ;  Rawson  v. 
Curtiss,  19  111.  474;  Chicago,  &c.  R 
R.  Co.  v.  Fox,  41  III.  106;  Carter  v. 
Burnham,  31  Ark.  212;  Howe  Mach- 
ine Co.  V.  Clark,  15  Kan.  493;  Daw- 
son «.  Landreaux,  29  La.  Ann.  363; 
Peck  V.  Ritchey,  66  Mo.  114;  String- 
ham  V.  St.  Nicholas  Ins.  Co.  4  Abb. 
App.  Dec.  315:  Stollenwerck  v. 
Thacher,  115  Mass.  224;  Grover  & 
Baker  S.  M.  Co.  v.  Polhemus,  34 
Mich.  247;  French  v.  Wade,  35  Kan. 
391;  Jaeger  v.  Kelley,  52  N.  Y.  274; 
Mussey  v.  Beecher,  3  Cush.  (Mass.) 
517;  Brigham  v.  Peters,  1  Gray 
(Mass.),  145;  Wood  Mow.  &  Reap. 
Machine  Co,  v.  Crow,  70  Iowa,  340; 
Nelson  v.  Tumlin,  74  Ga.  171. 

« Stollenwerck  v.  Thacher,  115 
Mass.  224;  Mussey  v.  Beecher,  3  Cush. 
(Mass.)  511. 

« Van  Dusen  e.  Mining  Co.  36  Cal. 
571,  95  Am.  Dec.  209. 


♦James  v.  Stookey,  1  Wash.  (U.  S 
0.  C.)  330;  Harker  v.  Dement,  supra; 
Grover  &  Baker  S.  M.  Co.  v.  Pol- 
hemus, supra;  Bacon  v.  Johnson,  56 
Mich.  182;  North  v.  Metz,  57  Mich. 
612;  Doonan  v.  Mitchell,  26  Ga.  472; 
McDougald  v.  Dawson,  30  Ala.  553; 
Coburn  v.  Paine,  36  Me.  105. 

•Mapp  V.  Phillips,  33  Ga.  72. 

•Hatch  V.  Squires,  11  Mich.  185; 
McClung  V.  Spotswood,  19  Ala.  165; 
South  &  North  Ala.  R.  R.  Co.  v. 
Henlein,  53  Ala.  606.  Peck  v.  Ritchey, 
66  Mo.  114;  Francis  v.  Edwards,  77 
N.  C.  371;  Galbreath  v.  Cole,  61  Ala. 
139. 

But  if  after  the  evidence  has  been 
admitted,  the  agency  is  otherwise 
proved,  the  error  will  be  cured.  Row- 
ell  V.  Klein,  44  Ind.  291;  McCormick 
V.  Roberts,  36  Kan.  553;  13  Pac.  Rep. 
827. 

T  Like  other  declarations  or  admis- 
sions against  interest.  Greenieaf  Ev., 
Chaps.  X.  XI. 

8Haughton  v.  Maurer,  55  Mich. 
323. 

•  Blevins    v.    Pope,    7    Ala.    871; 

74 


Chap.  lY.]  APPOINTMENT   OF    AGENTS.  §  103. 

§  102.  Agent  must  be  called  as  a  Witness.  If  it  is  deemed 
essential  to  prove  the  authority  by  the  agent  himself,  he  must  be 
called  as  a  witness ;  his  testimony  as  to  the  nature  and  extent  of 
his  authority,  where  it  rests  in  parol,  being  as  competent  as  that 
of  any  other  witness.*  The  rule  upon  this  subject  has  been 
stated  by  a  learned  judge  as  follows:  "It  is  competent  to 
prove  a  parol  agency  and  its  nature  and  scope  by  the  testimony 
of  the  person  who  claims  to  be  the  agent.  It  is  competent  to 
prove  a  parol  authority  of  any  person  to  act  for  another,  and 
generally,  to  prove  any  parol  authority  of  any  kind  by  the  testi- 
mony of  the  person  who  claims  to  possess  such  authority.  But 
it  is  not  competent  to  prove  the  supposed  authority  of  an  agent 
for  the  purpose  of  binding  his  principal  by  proving  what  the 
supposed  agent  has  said  at  some  previous  time.  Nor  is  it  com- 
petent to  prove  a  supposed  authority  of  any  kind,  as  against  the 
person  from  whom  such  authority  is  claimed  to  have  been  re- 
ceived, by  proving  the  previous  statements  of  the  person  who,  it 
is  claimed,  had  attained  such  authority."  * 

§  103.  Written  Authority  must  be  produced— When.  Where 
the  authority  is  conferred  by  a  power  of  attorney  or  other  writ- 
ten instrument,  and  where  from  the  nature  of  the  case  the  au- 
thority must  be  in  writing,  the  writing  is,  of  course,  the  best 
evidence  of  the  fact,  nature  and  extent  of  the  agency,  and  where 
these  questions  are  directly  involved,  the  writing,  in  accordance 
with  familiar  rules,  must  be  produced  or  its  absence  accounted 
for.' 

Collateral  Inquiry.  But  where  the  fact  of  the  agency  is  only 
collaterally  or  incidentally  involved,  it  may  be  proved  by  the 
acts,  declarations  or  conduct  of  the  parties  as  in  other  cases, 
although  it  was  conferred  by  written  instrument.* 

Graves  v.   Horton,  —  Minn.  — ,  85  upon  him,    Dowell  e.  Williams,    33 

N.  W.  Rep.  568.  Kans.  319. 

»  Thayer   e.    Meeker,    88  111.  470;  «  Valentine  J.  in  Howe  Machine 

French  v.  Wade,  85  Kan.  391;  Piercy  Co.  v.  Clark,  15  Kan.  493. 

V.  Hendrick,  2  W.    Va.   458,  98  Am.  »Neal  «.  Patten,  40  Ga.  363;  Colum- 

Dec.  774;  Gould  v.  Norfolk  Lead  Co.  bia  Bridge  Co.  v.  Geisse,  38  N.  J.  L. 

9  Cush.  (Mass.)  338,  57  Am.  Dec.  50.  89;  Reese  v.  Medlock,  27  Tex.  120,  84 

The  principal  may  show  by  the  Am.  Dec.  611. 

testimony  of  the  agent  that  the  alleged  <  Columbia  Bridge  Oo.   v.   Geisse, 

authority   had   not   been   conferred  supra. 

75 


§  10 J,.  THE  LAW  OF  AGENCY.  [Book  I. 

§  104.  Construction  of  Writing  for  Court.  Whether  a  cer- 
tain writing  creates  an  agency  or  not,  and  if  so,  what  is  the 
nature  and  extent  of  the  power  conferred,  the  writing  being 
produced,  are  questions  of  law  for  the  decision  of  the  court.' 

8  105.  Effect  of  undisputed  Pacts  to  be  determined  by  Court. 
And  so  where  the  facts  are  undisputed,  the  court  must  determine 
whether  they  create  an  agency,  and  if  so  with  what  powers  and 
limitations,  and  this  is  equally  true  whether  it  is  sought  to  estab- 
lish the  agency  by  previous  authorization  or  by  subsequent  rati- 
fication.* 

§  106.  In  other  Cases  Question  is  for  the  Jury.  Where,  how 
ever,  the  authority  was  not  conferred  by  written  instrument  and 
the  facts  are  in  dispute,  it  is  for  the  jury  to  determine  under 
proper  instructions  from  the  court,  not  only  whether  an  agency 
exists,  but,  if  so,  what  is  its  nature  and  extent.' 

It  is  impossible  to  lay  down  any  inflexible  rule  by  which  it  can 
be  determined  what  evidence  shall  be  sufficient  to  establish  an 
agency  in  any  given  case,  but  it  may  be  said  in  general  terms 
that  whatever  evidence  has  a  tendency  to  prove  the  agency  is 
admissible,*  even  though  it  be  not  full  and  satisfactory,'  as  it  is 
the  province  of  the  jury  to  pass  upon  it.  So  if  evidence  has  first 
been  introduced  tending  to  prove  the  agency  or  to  make  out  a 
prima  facie  case  thereof,  the  admissions  and  declarations  of  the 
alleged  agent,  if  otherwise  competent,  may  then  be  shown,  and 
the  whole  case  be  passed  upon  by  the  jury.* 

§  107.  Authority  by  Ratification.  The  authority  of  an  agent 
in  a  given  case  may  also  be  established  by  proof  that  his  per- 
formance of  the  act  in  question  has  subsequently  been  ratified 
and  approved  by  the  person  alleged  to  be  his  principal.     Some- 

>  Savings  Fund  Society  v.  Savings  *  South  «&  North  Ala.  R.  R,  Co.  «. 

Bank,  36  Penn.  St.  498,  78  Am.  Dec.  Henlein,  iupra. 

390;  Reese  t>.   Medlock,  27  Tex.  120,  » Morrisons.  Whiteside,  17 Md.  453, 

84  Am.  Dec.  611.  79  Am.  Dec.  661. 

» Gulick  V.  Grover,  33  N.  J.  L.  463,  •  National  Mechanics'  Bank  v.  Na- 

97  Am.  Dec.  728;  Savings  Fund  So-  tional  Bank,  36  Md,  5;  York  Co.  Bank 

cietyu.  Savings  Bank,  supra.  v.  Stein,   24  Md.    447;  Henderson  v. 

'Savings  Fund  Society  t>.  Savings  Mayhew,  2  Gill  (Md.)  393,  41    Am. 

Bank,  supra;  South  &  North  Ala.  R.  Dec.  434;  Central  Penn.  Tel.  Co.  «. 

R.  Co.  V.  Henlein,  52  Ala.  606;  Rob-  Thompson,  113  Penn,  St.  118. 
erts  V,  Pepple,  55  Mich.  367. 

76 


Chap.  lY.]  APPOINTMENT    OF    AGENTS.  §  108. 

thing  of  the  scope  and  application  of  this  mode  of  authentica- 
tion has  been  incidentally  developed  in  the  preceding  pages,  but 
its  full  treatnaent  will  be  reserved  for  the  following  chapter. 

§  108.  Acceptance  of  Agency  by  Agent.  It  has  been  seen 
that,  as  a  general  rule,  one  cannot  become  the  principal  in  this 
relation  against  his  will;'  and  the  same  general  rule  applies  to 
the  agent.  To  constitute  one  an  agent  there  must  be  consent  on 
the  part  of  the  agent,  either  expressed  by  words  or  inferable 
from  something  done.'  This  consent,  of  course,  may  be  inferred 
from  the  acts  of  the  agent.  Thus  where  he  is  found  performing 
the  agency,  his  acceptance  of  it  will  be  presumed. 

iAnU,  §  108.  .  'First  National  Bank  v.  Free,  67 

Iowa,  11. 

17 


THE   LAW    OF    AGENCY. 


[Book  I. 


CHAPTER    Y. 


OF  RATIFICATION. 


§  109.  Purpose  of  Chapter. 

L  What  is  Mbajjt  bt  Ratifica- 
tion. 

110.  What  Ratification  is. 

II.  What  Acts  may  be  Ratified. 

111.  In  general. 

112.  The  general  Rule. 

113.  Torts  may  be  ratified. 

114.  Void  Acts  cannot  be  ratified — 

Voidable  Acts  may  be. 

115.  Illegal  Acts  cannot  be  ratified. 

116.  Ratification  of  Forgery. 

III.  Who  mat  Ratify. 

117.  Qeneral  Rule. 

118.  Corporations  may  ratify. 

119.  Partners  may  ratify. 

120.  Infant  cannot  ratify. 

121.  When  Agent  may  ratify. 

122.  Ratification    by    incompetent 

Person. 

123.  Ratification    by  Guardian  or 

Executor. 

IV.  Conditions  of  Ratification. 

124.  1.  Principal  must  have  been 

identified. 

125.  2.  Principal  must  have   been 

in  Existence. 
1~8.  3.  Principal  must  have  present 
Ability. 

127.  4.  Act  must  have  been  done 

as  Agent. 

128.  5.  Knowledge      of     material 

Facts. 

129.  Same  Subject — General  Rule. 

130.  6.  No  Ratification  of  Part  of 

Act. 


§  131.  7.  Rights  of  other  Party  must 
be  prejudiced. 

132.  Burden  of  Proof. 

133.  Relief  of  Principal  when  Facts 

not  fully  known. 

V.  What  amounts  to  a  Ratifica- 
tion. 

134.  Importance  of  Question. 

135.  Written  —  unwritten  ;  —  Ex- 

press— implied. 

a.  Express  Ratification. 

136.  General  Rule. 

137.  Deed  at  Common  Law  ratified 

only    by    Instrument  under 
Seal. 

138.  Same  Subject — Rule  relaxed 

in  Partnership  Cases. 

139.  Same  Subject — Massachusetts 

Rule. 
40.  Same  Subject— Modern  Rule 
more  liberal. 

141.  Unnecessary  Seal  may  be  dis- 

regarded. 

142.  By    Authority    subsequently 

conferred. 

143.  By  Answer  in  Chancery. 

144  Contract  for  sale  or  leasing  of 
Land  ratified  by  Parol. 

145.  "  Lawfully  authorized  "  under 

Statute  of  Frauds. 

5.  Implied  Ratification. 

146.  In  general. 

147.  Variety  of  Methods. 

148.  By  accepting  Benefits. 

149.  Same  Subject — Instances. 

150.  Same     Subject  —  Other     In- 

stances. 


78 


Chap.  Y.] 


RATIFICATION. 


§110. 


§  151.  By   bringing    Suit  based    on 
Agent's  Act. 

152.  Mere  Delay  in  suing,  no  Rati- 

fication. 

153.  Ratification  by  Acquiescence 

— Silence. 

154.  Same  Subject — Election. 

155.  Same     Subject  —  Must    elect 

within  a  reasonable  Time. 

156.  Same    Subject  —  Sleeping    on 

Rights. 

157.  Same  Subject— Rules. 

158.  Same  Rule  applies  to  private 

Corporations. 

And  to  Municipal  and  Quasi- 
Municipal  Corporations. 

How  when  assumed  Agent  is 
a  mere  Stranger. 

Same  Subject — True  Rule. 
163.  Silence  does  not  ratify  if  Stran- 
ger acts  in  his  own  Name. 

Information  by  Letter. 

Ratification   by  Acquiescence 
— Illustrations. 

Rule  applies  only  to  Principals. 


159. 


160. 


161. 


163 
164 


§  168.  Cannot      affect      intervening 
Rights. 

169.  Ratification  irrevocable. 

f .  As  between  Principal  and  Agent. 

170.  In  general. 

171.  The  general  Rule. 

173.  Agent's  Motives  unimportant. 

173.  Efforts  to  avoid  Loss,  no  Rati- 

fication. 

174.  Ratification  must  be  in  toto. 

175.  Ratification  of    Appointment 

of  Subagent. 

176.  Ratification  of  Torts  does  not 

discharge  Agent's    Liability 
to  third  Persons. 

177.  Acts  of  Ratification  liberally 

construed. 

S,  As  between  Principal  and  the  otTier 
Party. 

178.  a.  Other  Party  against  Prin- 

cipal. 

179.  b.  Principal  against  the  other 
Party. 

j^.  As  between  Agent  and  ihe  other 
Party. 

180.  In  general. 

181.  Ratification  releases  Agent  In 
Contract. 

183.  Otherwise  in  Tort. 


165. 
VI.  The  Results  op  Ratification. 

166.  What  for  this  Subdivision. 

1.  In  General. 

167.  Equivalent  to  precedent  Au- 

thority. 

§  109.  Purpose  of  Chapter.  It  is  the  purpose  of  this  chapter 
to  discuss  what  is  sometimes  called  the  Doctrine  of  Ratification. 
There  has  been  seen  in  the  preceding  chapters  something  of  its 
place  and  scope,  but  it  will  be  here  considered  more  in  detail. 
For  convenience  of  treatment  the  matter  may  be  arranged  under 
the  following  heads : 

I.  What  is  meant  by  ratification  ;  II.  What  acts  may  be  rati- 
fied ;  III.  Who  may  ratify ;  lY.  Conditions  of  ratification ;  Y. 
What  amounts  to  ratification  ;  and  YI.  The  results  of  ratification. 


what   is    meant   by    RATIFICATION'. 

§  110.     What  Ratification  is.     What  is  assumed  to  be  done 
for,  or  on  behalf  of  another,  without  his  authority,  is  not  bind- 

79 


§  111.  THE    LAW    OF    AGENCY.  [Book  I. 

ing  upon  him.  It  raaj  be  that  the  person  who  so  assumes  to 
represent  the  other  is,  in  reality,  the  agent  of  the  latter,  but  has 
exceeded  the  limits  of  his  authority ;  or  he  may  be  a  mere  stran- 
ger. In  either  case,  however,  his  assumption  of  an  authority 
which  he  does  not  in  fact  possess,  confers  no  rights  against  the 
alleged  principal. 

But  when  the  facts  connected  with  the  doing  of  the  act  are 
brought  to  the  knowledge  of  him  on  whose  behalf  it  was  so  done, 
he  may  decide  to  sanction  and  confirm  it  and  adopt  it  as  his  own  ; 
or  without  expressly  deciding  about  it  at  all,  he  may  so  conduct 
himself  that  for  the  protection  of  innocent  third  persons  or  of 
the  assumed  agent  himself,  the  law  will  presume  that  he  did  so 
sanction  and  confirm  such  act,  and  adopt  it  as  his  own. 

It  is  this  express  or  implied  act  in  giving  force  and  effect  to 
what  was  before  unauthorized  and  of  no  effect,  that  is  here  meant 
by  ratification. 

It  will  be  kept  in  mind  that  we  are  not  now  dealing  with  the 
question  of  the  liability  of  the  person  who  has  so  assumed  to  act 
without  authority.     That  is  reserved  for  subsequent  treatment.* 

II. 

WHAT   ACTS   MAT   BE   KATIFIED. 

§  111.  In  general.  The  power  to  ratify  an  act  done  for  and 
in  behalf  of  another,  necessarily  presupposes  in  that  other  the 
power  to  do  the  act  himself,  both  in  the  first  instance'  and  at  the 
time  of  ratification  ;•  it  also  presupposes  the  power  in  that  other 
to  have  authorized  the  doing  of  the  act  in  the  first  instance  and 
also  to  authorize  its  doing  at  the  time  of  ratification.*     Hence — 

§  112.  The  general  Rule.  It  is,  , therefore,. the, general  jcule 
that  one  may  ratify  the  previous  unauthorized  doing  by  another 
in  his  behalf,  of  any  act  which  he  might  then  and  could  still 
lawfully  do  himself,  and  which  he  might  then  and  could  still 
lawfully  delegate  to  such  other  to  be  done.' 

>  See  post,  §§540-557.  San  Francisco,  16  Cal,  619;  Bady  v. 

« Davis  0.  Lane,  10  N.  H.  156.  Mayor,    16    How.    (N.    Y.)   Pr.  432; 

8 Cook  V.   TuUis,    18  Wall.  (U.  S.)  O'Conner  r.  Arnold,  53  Ind.  205;  Ar- 

332,  mitage    v.    Widoe,    36    Mich.     134; 

*  Post,  §  126.  Supervisors  B.  Arrighi,  54  Miss.  668; 

•  Zoltmant).  San  Francisco,  20  Cal,  Taymouth  «.  Koehler.  35  Mich.  22; 
96,   81  Am.  Dec.   96;  McCracken  v.  Clarke  v.  Lyon  Co.  8Nev.  188. 

80 


Chap,  y,]  RATIFIOATION.  §  116. 

§  113.  Torts  may  be  ratified.  It  is  immaterial  whether  the 
unauthorized  act  arises  from  a  contract  or  is  founded  upon  a  tort. 
Whoever,  with  knowledge  of  the  facts,  adopts  as  his  own  or  know- 
ingly appropriates  the  benefits  of,  a  wrongful  act  which  another 
has,  without  authority,  assumed  to  do  in  his  behalf,  will  be 
deemed  to  have  assumed  the  responsibility  of  the  act.' 

§  114.  Void  Acts  cannot  be  ratified— Voidable  Acts  may  be. 
An  act  which  was  absolutely  void  at  the  time  it  was  done  cannot 
be  ratified.  If  the  principal  himself  could  not  lawfully  have 
done  the  act,  or  if  it  could  not  lawfully  have  been  done  by  any- 
one, no  subsequent  ratification  or  confirmation  can  give  it  force 
or  effect.*  If,  however,  the  act  were  voidable  merely  it  can,  of 
course,  be  rendered  valid. 

§  115.  Illegal  Acts  cannot  be  ratified.  It  is  but  a  re- state- 
ment of  the  same  rules  to  say  that  an  act  done  in  violation  )i 
law  or  in  contravention  of  public  policy,  the  performance  of 
which,  as  has  been  seen,  could  not  lawfully  be  delegated  to  an 
agent,"  cannot  be  lawfully  ratified.* 

§  116.  Ratification  of  Forgery.  Whether  a  forgery  is  capable 
of  ratification  is  a  question  upon  which  there  is  a  conflict  of  opin- 
ion, but  it  is  believed  that  this  arises  rather  from  a  failure  to  dis- 
criminate between  the  different  phases  of  the  question  than  from 
any  dispute  over  the  principles  involved.  In  every  forgery  there 
are  two  parties  interested,  the  State  in  its  efforts  to  detect  und 
punish  it  as  a  crime ;  and  the  person  whose  responsibility  has 
been  pledged  without  his  authority. 

So  far  as  the  right  of  the  State  to  pursue  and  punish  the 
forger  as  a  criminal  is  involved,  it  is  certain  that  a  subsequent 
ratification  by  the  individual  sought  to  be  charged,  will  be  nn- 

>  Wilson «.  Tumman,  6  Man.  &  G.  McAllister,    15    Gray    (Mass.)    433; 

242 ;  Morehouse  v.  Northrop,  33  Conn.  Workman  v.  Wright,  33  Ohio  St.  40') ; 

880,   89  Am.   Dec.  211;  Griswold  v.  31  Am.  Rep.  546;  Decuir  ».  Lejeune, 

Haven,  25  N.  Y.   595,   82  Am.  Dec.  15    La.    Ann.    569;  Harrison  v.  Mc- 

880;  Lee  «.  West,  47 Ga.  311;  National  Henry.  9  Qa.  164.  53  Am.  Dec.   435; 

Life  Ins.  Co.  «.  Minch,  53  N.  Y.  144;  Bird  v.  Brown,  4  Ex.  786. 

Lane  v.  Black,  21  W.  Va.  617;  Tuck-  "See  ante,  Chap   II. 

er  «.  Jerris,  75  Me.  184.  <  State  v.  Matthis,  1  Hill  (S.  C.)  37; 

«Armitage  v.  Widoe,  36  Micb.  124;  Turner  v.  Phoenix   Ins.  Co.  55  Mich. 

Chapman  v.  Lee,  47  Ala.  143;  Day  v.  287;  Harrison  v.  McHenry,  supra. 

6  81 


116 


THE   LAW   OF    AGENCY. 


[Book  I. 


availing.*     Any  undertaking  to  suppress  the  crime  would,  as  has 
been  seen,  be  contrary  to  public  policy  and  void.* 

But  viewed  in  its  other  aspect  as  a  mere  unauthorized  writing, 
no  satisfactory  reason  is  perceived  why  it  may  not  be  ratified  like 
any  other  unauthorized  act.*     No  principle  of  public  policy  can 


'  In  McKenzie  v.  British  Linen  Co. 
6App.  Cas.  83,  34  Eng.  Rep.  301, 
Lord  Blackburn  says:  "I  wish  to 
guard  against  being  supposed  to  say 
that  if  a  document  with  an  unauthor- 
ized signature  was  uttered  under  such 
circumstances  of  intent  to  defraud 
that  it  amounted  to  the  crime  of  for- 
gery, it  is  in  the  power  of  the  person 
whose  name  was  forged  to  ratify 
it  so  as  to  make  a  defense  for  the  for- 
ger against  a  criminal  charge.  I  do 
not  think  he  could.  But  if  the  per- 
son whose  name  was  without  author- 
ity used  chooses  to  ratify  the  act,  even 
though  known  to  be  a  crime,  he 
makes  himself  civilly  responsible  just 
as  if  he  had  originally  authorized  it. 
It  is  quite  immaterial  whether  this 
ratification  was  made  to  the  person 
who  seeks  to  avail  himself  of  it  or  to 
another." 

»  See  ante,  Chap.  II. 

•In  Greenfield  Bank  v.  Crafts,  4 
Allen  (Mass.)  447,  the  court  says: 
"The  only  question  upon  this  part  of 
the  case  is,  whether  a  signature  made 
by  an  unauthorized  person  under 
such  circumstances  as  show  that  the 
party  placing  the  name  upon  the  note 
was  thereby  committing  the  crime  of 
forgery,  can  be  adopted  and  ratified 
by  any  acts  and  admissions  of  the 
party  whose  name  appears  on  the 
note,  however  full  and  intentionally 
made  and  designed  to  signify  an 
adoption  of  the  signature.  The  de- 
fendant insists  that  it  cannot  by  such 
evidence  as  would,  in  other  cases, 
warrant  the  jury  in  finding  an  adop- 
tion; and  that  nothing  short  of  an 
estoppel,  having  the  element  of  actual 


damages  from  delay  or  postponement, 
occasioned  by  the  acts  of  the  person 
whose  name  is  borne  upon  the  note, 
misleading  the  holder  of  it,  will  have 
this  effect.  As  to  the  person  himself 
whose  name  is  signed,  it  is  difficult 
to  perceive  any  sound  reason  for  the 
proposed  distinction,  as  to  the 
effects  of  ratifying  an  unauthorized 
act,  in  the  two  supposed."  (The 
other  case  supposed  was  that  of  an 
agent  honestly  exceeding  his  author- 
ity.) "  In  the  first  case  the  actor  has 
no  authority  any  more  than  in  the 
last.  The  contract  receives  its  whole 
validity  from  the  ratification.  It  may 
be  ratified  where  there  was  no  pre 
tense  of  agency.  In  the  other  case, 
the  individual  who  presents  the  note 
thus  signed,  passes  the  note  as  a  note 
signed  by  the  promisor,  either  by  his 
own  proper  hand  or  by  some  one  by 
his  authority.  It  was  clearly  compe- 
tent, if  duly  authorized,  thus  to  sign 
the  note.  It  is,  as  it  seems  to  us, 
equally  competent  for  the  party,  he 
knowing  all  the  circumstances  as  to 
the  signature  and  intending  to  adopt 
the  note,  to  ratify  the  same,  and  thus 
confirm  what  was  originally  an  un- 
authorized and  illegal  act.  We  are 
supposing  the  case  of  a  party  acting 
with  full  knowledge  of  the  manner  in 
which  the  note  was  signed,  and  the 
want  of  authority  on  the  part  of  the 
actor  to  sign  his  name,  but  who  uu 
derstandingly  and  unequivocally 
adopts  the  signature,  and  assumes  the 
note  as  hia  own.  It  is  difficult  to 
perceive  why  such  adoption  should 
not  bind  the  party  whose  name  is 
placed  on  the  note  as  promisor,  a9 


82 


Chap,  y.] 


BATmCATION. 


§116. 


be  contravened  unless  the  ratification  is  made  upon  the  condi- 
tion or  for  the  purpose  of  preventing  the  prosecution  of  the  of- 
fender. And  even  in  cases  where  the  intention  is  to  prevent  the 
act  from  being  treated  as  a  forgery,  as  between  the  parties,  it  is 
not  easy  to  see  how  the  public  interests  can  be  endangered  where 
the  result  is  that  the  holder  of  the  paper  is  protected  against  loss 
and  the  delinquent  agent  is  saved  from  exposure  and  ruin. 

But  whatever  may  be  regarded  as  the  true  rule  in  the  abstract, 
it  is  certain  that  the  principal  may,  upon  the  discovery  of  the 
forgery,  so  conduct  himself,  as  by  permitting  the  paper  to  be 
taken  upon  the  strength  of  his  assertion  of  its  genuineness;  or  by 
inducing  the  holder  to  change  his  position  or  intermit  some 
remedial  proceeding  upon  an  assurance  of  its  validity  or  a  prom- 
ise of  protection  ;  or,  generally,  by  remaining  silent  as  to  its  in- 
validity when  in  equity  and  good  conscience  he  ought  to  have 
spoken,  as  to  estop  himself  from  asserting  that  it  is  not  binding 
upon  him.* 


effectually  as  if  he  had  adopted  the 
note  when  executed  by  one  profess- 
ing to  be  authorized,  and  to  act  as  an 
agent,  as  indicated  by  the  form  of  the 
signature,  but  who  in  fact  had  no  au- 
thority. It  is  however  urged  that  pub- 
lic policy  forbids  sanctioning  the  rati- 
fication of  a  forged  note,  as  it  may 
have  a  tendency  to  stifle  a  prosecu- 
tion for  the  criminal  offense.  It 
would  seem,  however,  that  this  must 
stand  upon  the  general  principles  ap- 
plicable to  other  contracts,  and  is 
only  to  be  defeated  where  the  agree- 
ment was  upon  the  understanding 
that  if  the  signature  was  adopted,  the 
guilty  party  was  not  to  be  prosecuted 
for  the  criminal  offense." 

And  see  generally  to  the  same 
effect:  Hefner  v.  Vandolah,  63  111. 
483,  14  Am.  Rep.  106;  Commercial 
Bank  «.  Warren,  15  N.  Y.  577;  How- 
ard V.  Duncan,  3  Lans.  (N.  Y.)  175; 
Thorne  v.  Bell,  Lalor's  Sup.  (N.  Y.) 
430;  Livings  v.  Wiler,  33  111.  387; 
Cravens  «.  Gillilan.  63  Mo.  28;  First 
National  Bank  v.  Gay,  63  Mo.  33; 
Harper  «.  Devene,  10  La.  Ann.  724; 


"Wellington  v.  Jackson,  121  Mass.  157; 
Forsythe  v.  Bonta,  5  Bush  (Ky.)  547, 

But,  contra,  except  where  estoppel 
is  involved  or  there  is  a  new  consid- 
eration :  —  McHugh  «.  Schuylkill 
County,  67  Penn.  St.  891,  5  Am.  Rep. 
445;  Shisler  v.  Vandike,  93  Penn.  St. 
447,  37  Am.  Rep.  703;  Workman  «. 
Wright,  33  Ohio  St.  405,  31  Am.  Rep. 
546;  Brook  v.  Hook,  L.  R.  6  Exeh. 
89;  Corser  v.  Paul,  41  N.  H.  24; 
Woodruff  V.  Munroe,  33  Md.  146; 
Williams  v.  Bailey,  L.  R.,  1  H.  L. 
200;  Henry  v.  Heeb,  114  Ind.  275,  5 
Am.  St.  Rep.  613. 

'  That  the  principal  may  be  estop- 
ped from  asserting  the  forgery: — 
M'Kenzie  v.  British  Linen  Co. ,  6  App. 
Cas.  82,  34  Eng.  Rep.  301;  Casco 
Bank  «.  Keene,  53  Me.  103;  Union 
Bank  v.  Middlebrook,  33  Conn.  95; 
Forsyth  v.  Day,  46  Me.  176;  Crout  v. 
DeWolf,  1  R.  I.  393;  Rudd  v.  Mat- 
thews, 79  Ky.  479,  42  Am.  Rep.  231; 
Cohen  v.  Teller,  12  Norris  (Penn.) 
123.  No  ratification  where  statements 
were  equivocal: — Smith  v.  Tramel,  68 
Iowa,  488. 

83 


§  117.  THB   LAW    OF    AGENCY.  [Jiook  I. 

III. 
"WHO    MAT    RATIFY. 

§  117.  The  subdivisions  of  this  chapter  are  so  intimatelj  con- 
nected that  much  which  is  applicable  to  one  is  equally  true  of 
another.  Thus  carrying  out  the  line  of  the  last  subdivision  it 
may  be  said  to  be  the 

General  Rule,  that  whoever  was  capable  of  entering  into  a 
contract  which  another,  nnauthorized,  has  assumed  to  make  for 
him  as  his  agent,  and  who  is  still  capable  of  entering  into  it,  is 
capable  of  ratifying  that  contract,  thereby  rendering  it  good 
from  the  beginning  and  the  same  as  though  he  had  originally 
authorized  or  made  it.' 

§  118.  Corporations  may  ratify.  And  this  rule  is  as  true  in 
the  case  of  a  corporation  as  of  an  individual.  An  act  not  within 
the  corporate  powers  of  the  corporation  cannot  be  rendered  oper- 
ative by  ratification,*  but  if  the  act  were  one  which  the  corpora- 
tion might  lawfully  have  done  or  authorized  in  the  first  instance, 
its  unauthorized  performance,  in  its  behalf,  may  be  ratified  in  the 
same  manner  and  with  the  like  effect  as  by  an  individual.^ 

So  as  in  the  case  of  an  individual,  it  is  not  necessary  that  there 
should  be  a  direct  proceeding,  with  an  express  intention  to  ratify. 
It  may  be  done  indirectly,  and  by  acts  of  recognition  or  acquies- 
cence, or  by  acts  inconsistent  with  repudiation  or  disapproval.* 

"Wilson  V.  Dame,  58  N.    H.   393;  Gloucester  Bank,   17  Mass.  1,  9  Am. 

Williams  t>.  Butler,    35  111.  544;  In-  Dec.  Ill;  Bulkley  e.  Derby  Fishing 

dianapolis,  &c.,  R.  R  Co.  v.  Morris,  Co.,  2  Conn.   253,  7  Am.    Dec.  271; 

67111.  295;  Pollock  t).  Cohen,  33  Ohio  Peterson  r.  Mayor,    17   N.    Y.    449; 

St.  514;  Sentell  v.  Kennedy,  29  La.  Baker©.  Cotter,  45  Me.  236;  Despatch 

Ann,  679;  McCracken  v.  San   Fran-  Line*.  Bellamy  Mnf'g  Co..  12  N    H 

Cisco,  16  Cal.  591.  205,  37  Am   Dec.  203;  Wliitewell  «. 

s  Taymouth  v.  Koehler,   35  Mich.  Warner,  20  Vt.  425 ;  City  of  Detroit 

22;  Highway  Commissioners  v.  Van  v.    Jackson,    1    Doug.    (Mich.)    106; 

Dusan,  40  Mich.  439;    Supervisor  v.  Church  c.    Sterling.    16   Conn.    388; 

Arrighi,  54  Miss.  668;  Smith  v.  New-  Planters'  Bank  v.  Sharp,  4  Smedes  & 

burgh,  77  N.  Y.  130;  Green  v.  Cape  M.  (Miss.)  75,  43  Am   Dec.  470. 
May,  41  N.  J.  L.  45;  Hague  v.  Phila-  <  Scott   v.    Methodist    Church,    60 

delphia,  48  Penn.    St.    528;    Bangor  Mich.  528;  Taymouth  v.  Koehler.  35 

Boom  Co.  «.  Whiting.  29  Me.  123.  Mich.  22;  Sherman  v.  Fitch,  98  Mass. 

»Kelsey  ».  National  Bank,  69  Penn.  59;  Lyndeborough  Glass  Co.  v.  Massa- 

8t.  426;  Fleckner  v.  U.  8.   Bank,  8  chusetts   Glass   Co.,    Ill    Mass.  315; 

Wheat.   (U.  S.)  363;  Salem  Bank  v.  Browne.  Winnisimmet  Co.,  11  Allea 

84: 


Chap.  Y.]  RATIFICATION.  §  122. 

§  119.  Partners  may  ratify.  Partners,  also,  are  undoubtedly 
competent  to  ratify  what  they  might  properly  have  authorized, 
and  within  the  same  limits,  one  partner  may  ratify  for  the  firm, 
and  the  ratification  of  the  whole  partnership  may  be  implied 
from  acquiescence  after  knowledge  brought  home  to  one,  under 
such  circumstances  as  to  make  the  knowledge  of  one  the  knowl- 
edge of  all. ' 

§  120.  Infant  cannot  ratify.  As  has  been  seen,*  it  is  held 
that,  as  an  infant  cannot  appoint  an  agent  he  cannot  ratify  the 
act  of  one  who  has,  unauthorized,  assumed  to  act  for  him. 

§  121.  When  Agent  may  ratify.  An  agent  cannot  ratify  his 
own  unauthorized  act ;'  nor  can  one  of  two  joint  agents  ratify  the 
act  of  his  coagent  ;*  but  where  the  act,  which  when  done  by  one 
agent  was  unauthorized,  is  within  the  general  power  of  another 
agent  of  the  sanae  principal,  the  doing  of  the  act  by  the  first 
agent  may  be  ratified  by  the  second.'  This  doctrine  is  frequently 
applied  to  the  ratification  of  the  acts  of  subordinate  agents  by  the 
superior  agents  of  corporations.* 

§  122.     Ratification  by  incompetent  Person.    A  contract  made 


(Mass.)  326;  A.rlington  v.  Peirce,  122  299;  Toledo,  Wab,  &  West.  R  R  Co. 

Mass.  270;  Hoyt  v.  Thompson,  19  N.  v.  Rodrigues,  47  111.  188;  Toledo,  &c. , 

Y.  307;  Scott  v.  Middletowa,  &c.,  R.  R  R  Co.  v.  Prince,  50  111.  26;  Balls- 

R  Co.  86  N.  Y.  200;  Gold  Mining  ton  Spa  Bank  v.   Marine  Bank,  16 

Co.  V.  National  Bank,  96  U.S.  640;  Wis.  129;  Anglo-Californian  Bank©. 

Law  V.  Cross,  1  Black  (U.  S.)  533.  Mahoney  Mining  Co.,  6  Sawy.  (U.  S. 

•Forbes  v.  Haginan,    75   Va.    163.  C.  C.)  255,  s.  c.  104  U.  S.  193;   Sher- 

See  Chouteau  v.  Qoddin,  89  Mo.  229,  man  v.  Fitch,  98  Mass.  59;  Walworth 

90  Am.  Dec.  462;  Baldwin «.  Leonard,  Co.  Bank  v.  Farmers'  L.  &  T.  Co.,  16 

39  Vt.  260,  94  Am.  Dec.  324.  Wis.  639;  Hoyt  v.  Thompson,  19  N. 

'Ante,  §  53.  Y.  207;  Darst  v.    Gale,   83   111.  186; 

'Trudo  V.  Anderson,  10  Mich.  357,  First  National  Bank  r.  Kimberlands, 

81  Am.  Dec.  795;  Hotchin  v.  Kent,  8  16   W.    Va.    555;  Burrill  v.   Nabant 

Mich.  526.  Bank,  2  Mete.  (Mass.)   163,  35  Am. 

♦Pennc.  Evans,  28  La.  Ann.  576.  Dec.    395;  Wood  v.  Whelen.  93  111. 

5 Mound  City  Mutual  L.  Ins.  Co.  v.  155;  Chouteau  v.  Allen,  70  Mo.  290; 

Huth,    49  Ala.    530;    Whitehead  v.  Reichwald  v.  Commercial  Hotel  Co., 

Wells,  29  Ark.  99;  Dorsey  v.  Abrams,  106  111.  439;  Lyndeborough  Glass  Co. 

85  Penn.  St.  299;  Palmer  «.  Cheney,  c.  Mass.  Glass  Co.,  Ill   Mass.   315; 

35  Iowa,  281.  Olcott  v.  Tioga  R  R.  Co.,  27  N.  Y. 

•Thus  see  Cairo  &  St.  L.  R.  R.  Co.  546;  Union  Mutual  Life  Ins.    Co.  v. 

V.  Mahoney,  82  111.  73,  25  Am.  Rep.  Masten,  3  Fed.  Rep.  881. 

85 


§  123.  THE    LAW    OF    AGENCY.  [Book  1. 

by  or  for  a  party  during  a  period  of  incompetence  may  be  rati- 
fied by  him  after  his  competency  is  restored.* 

§  123.  Ratiflcation  by  Guardian  or  Executor.  And  this  may 
be  done,  as  has  already  been  stated,  by  the  incompetent's  guar- 
dian or  committee,  or  by  his  personal  representatives  after  the 
incompetent's  death.* 

IV. 

CONDITIONS   OF   RATIFICATION. 

§  124.  1.  Prinoipal  must  have  been  identified.  The  act  to 
be  ratified  must  have  been  done  by  one  claiming  to  represent  the 
person  ratifying  or  persons  of  his  description.'  It  is  not  neces- 
sary that  the  intended  principal  be  known  to  the  agent  at  the 
time,  but  it  is  necessary  that  the  person  for  whom  the  agent  pro- 
fesses to  act  must  be  a  person  who  is  then  capable  of  being  ascer- 
tained. Neither  is  it  necessary  that  he  should  have  been  named, 
but  there  must  be  such  a  description  of  him  as  shall  amount  to  a 
reasonable  designation  of  the  person  intended  to  be  bound.* 

§  125.  2.  Principal  must  have  been  in  Existence.  It  follows 
necessarily  from  the  doctrine  of  the  preceding  section  that  the 
principal  must  also  have  been  in  existence  at  the  time  the  act  to 
be  ratified  was  done.  A  principal,  e.  g.^  a  corporation,  subse- 
quently coming  into  existence  may  become  liable  upon  contracts 
assumed  to  have  been  made  in  its  behalf  before  its  organization 
by  persons  who  undertook  to  bind  it  in  advance,  as  where  the 
corporation  when  organized,  with  knowledge  of  the  facts,  appro- 
priates and  retains  the  benefits  of  the  contracts  so  made  on  its 
account  ;•  but  this  liability  is  rather  that  of  a  new  implied  con- 
tract than  the  ratification  of  one  wliich  was  made  before  the  cor- 
poration had  acquired  a  legal  existence.* 

^Ante,  %  50.  St.  54,  21  Am.  Rep.  39;  Paxton  Cat- 

«^»<e,  §50.  tie  Co.  V.    First  Nationnl   Bank,    21 

sFoslerV  Bates,  12  M.  &  W.  226.  Neb.  621,  59  Am.  Rep.  852;  Western 

4  Watson  ®.  Swaan,  lie.  B.  (N.  S.)  Screw  Co.  v.   Cousley,    72   111.  531; 

771;  103  Eng.  Com.  Law  Rep.  770;  New  York,  &c.,  R.  R.  ,Co.  ».  Ketch- 

Kelncr  v.  Baxter,  L.   R.  2  C.  P.  174.  um,  27  Conn.  170. 

sRockford,  «S:c.,  R.  R.  Co.  v.  Sage,  «Morawetz  on  Corporations,  §  548. 

65  111.328,  16  Am.   Rep.  587;  Bull's  See  also  an^,  §  75. 

Gap  R.  R.  Co.  V.  Christy,  79  Penn. 

86 


Chap.  Y.]  EATIFICATION.  §  128. 

§  126.  3.  Principal  must  have  present  Ability.  As  has  been 
seen,  the  power  to  ratify  presupposes  a  present  ability  in  the 
principal  to  do  the  act  himself  or  to  authorize  it  to  be  done.'  If, 
therefore,  for  any  reason,  the  principal  has  become,  since  the 
doing  of  the  act  to  be  ratified,  incapable  of  doing  the  act  himself 
and  of  authorizing  it  to  be  done,  he  is  incapable  of  ratifying  it.* 

And  so  if  third  persons  acquire  rights  after  the  act  is  done  and 
before  it  has  received  the  sanction  of  the  principal,  the  ratifica- 
tion cannot  operate  retrospectively  so  as  to  overreach  and  defeat 
those  rights.' 

§  127.  4.  Act  must  have  been  done  as  Agent.  The  act  rati- 
fied must  also  have  been  done  by  the  assumed  agent  as  agent  and 
in  behalf  of  the  principal.  If  the  act  was  done  by  him  as  prin- 
cipal and  on  his  own  account,  it  cannot  thus  be  ratified.* 

§  128.  5.  Knowledge  of  material  Pacts.  It  will  be  seen  here- 
after that  the  ratification  of  an  unauthorized  act  may  be  express 
or  implied.  It  may  be  the  intentional  act  of  the  principal,  and 
it  may  also  be,  in  a  measure,  an  unintentional  act.  Upon  learn- 
ing of  the  unauthorized  act  of  his  agent,  the  principal,  deeming 
the  act  to  be  to  his  advantage,  may  expressly  ratify  it  and  avail 
himself  of  its  benefits;  or,  deeming  it  to  be  to  his  detriment,  he 
may  expressly  repudiate  it ;  or,  as  is  more  often  the  case,  he  may 
take  no  decisive  step  in  either  direction,  but  tacitly  leave  his  in- 
tention to  be  determined  by  his  subsequent  acts.  He  is  under  no 
obligation  to  expressly  affirm,*  but  if  he  decides  to  do  so,  he  may 

>  Zottman  v.  San  Francisco,  20  Cal,  Am,  Dec.  613;  Stoddart's  Case,  4  Ct. 

96,   81  Am.  Dec.  96.     "Ratification  of  CI.  511.     See  also  pos«,  §  1C8. 

can  only  be  made  when  the  principal  ♦  Collins  v.  Suau,  7  Robt.  (N.   Y.) 

possesses  at  the  time  the  power  to  do  623;  Hamlin  v.  Sears,  83  N.  Y.  327; 

the  act  ratified.     He  must  be  able  at  Pittsburg,  «&c.,  R.  R.  Co.  v.  Gazzam, 

the  time  to   make  the    contract    to  32  Penn.    St.    340;  Collins  v.    Wag- 

which,    by  his  ratification  he  gives  goner,    Breese  (111.)  26;  Beveridje  v. 

validity."    Field,  J.,  in  McCracken  Rawson,    51    111.    504;     Commercial 

V.  San  Francisco,   16  Cal.  591.     See  Bank  ».  Jones,  18  Tex.  811;  Grand  c. 

also  Grngan  v.  San  Francisco,  18  Cal.  Van  Vleck,  69  111.    479;   Harrison  v. 

590;    Marsh    v.    Fulton    County,    10  Mitchell,  13  La.  Ann.    260;  Roby  e. 

Wall.  (U.  S.)  676;  Davis  v.  Laue,  10  Cossitt,  78  111.  038;  Allredc.  Bray.  41 

N.  H.  158.  Mo.  484;  Vanderbilt  v.  Turnpike  Co. 

2  Cook  V.  TuUis,   18  Wall.  (U.  S.)  2  N.  Y.  479;   Brainerd  v.  Dunning, 
832.  30  N.  Y.  211. 

3  Wood  «.  McCain,  7  Ala.  800,  42  « Combs  c.   Scott,  13  Allen  (Mass.) 

493. 

87 


I  129.  THE    LAW    OF   AGENCY.  [Book  I. 

fully  inform  himself  of  all  the  material  facts,  or  he  may  inten- 
tionally assume  the  risk  without  inquiry,'  or  he  may  deliberately 
ratify  upon  such  knowledge  as  he  possesses  without  caring  for 
more.*  If  he  determines  expressly  to  repudiate  the  contract  he 
must  either  ascertain  the  facts  or  incur  the  risk  of  having  the 
contract  subsequently  shown  to  be  within  the  agent's  powers  and 
enforced  against  him,  notwithstanding  his  attempted  repudiation. 

But  by  far  the  most  numerous  and  troublesome  class  of  cases 
is  that  where  it  is  attempted  by  third  persons  to  hold  the  princi- 
pal liable,  upon  the  basis  of  an  implied  affirmance.  The  principal 
may  in  fact  have  had  a  positive  intention  not  to  ratify  the  con- 
tract, and  yet  he  may  have  so  conducted  himself  with  reference 
to  third  parties  that  he  will  be  presumed  to  have  ratified  it. 
What  shall  amount  to  a  ratification  and  what  shall  be  deemed  to 
be  sufficient  evidence  thereof,  are  questions  reserved  for  consid- 
eration hereafter. 

§  129.  Same  Subject— General  Rule.  It  may  therefore  be 
stated  as  the  general  rule,  that,  except  in  those  cases  where  the 
principal  intentionally  assumes  the  responsibility  without 
inquiry,  or  deliberately  ratifies,  having  all  the  knowledge 
in  respect  to  the  act  which  he  cares  to  have,'  any  ratifica- 
tion of  an  unauthorized  contract,  in  order  to  be  made 
effectual  and  obligatory  upon  the  alleged  principal,  must 
be  shown  to  have  been  made  by  him  with  a  full  knowl- 
edge of  all  the  material  facts  connected  with  the  transac- 
tion to  which  it  relates ;  and  especially  must  it  appear  that  the 
existence  of  the  contract  and  its  nature  and  consideration  were 
known  to  him.*    It  is  not  necessary,  however,  that  he  should  also 

•Lewis  V.  Read,  13  M.  &  W.  834.  Dysart,  9  B.  Monr.  (Ky.)  413;  Wood- 

sKelley  t).  Newburyport  Horse  R.  bury  v.  Larned,  5  Minn.  339;  Humph- 

R.  Co..  141  Mass.  496.  rey  «.  Havens,  12  Id.  298;  Seymour 

aLewiso.  Read,  13  M.  &  W.  834;  v.  Wyckofl,  10  N.   Y.  213;  Brass  v. 

Kelley  v.  Newburyport  Horse  R.  R.  Worth,  40  Barb.  (N.   Y.)  648;  Roach 

Co..  141  Mass,  496.  v.  Coe,  1  E.   D.  Smith  (N.  Y.)  175; 

<  Dickinson  v.   Conway,    12  Allen  Pittsburg,  &c.,  R.  R.  Co.  b.  Gozzam, 

CMass.)  491;  Combs  v.  Scott,  Id.  493;  32  Penn.  St,  340;  Dupont  v.  Werthe- 

Owingst).  Hull,  9  Pet.  (U.   S.)  607;  man,  10  Cal.  354;  Billings  b.  Morrow, 

Hardeman  v.  Ford,  12  Qa.  205;  Mapp  7  Cal.  171,  68  Am.  Dec.  235;  Ward 

V.   Phillips,  32  Ga.    72;    Mathews  v.  v.  Williams,  26  111.  447.  79  Am.  Dec. 

Hamilton,    23  111.    470;    Tidrick    v.  385;    Manning  c.    Gasharie,  27  Ind. 

Rice,  13  Iowa,   214;    Dodge  v.   Mc-  399;  ^tna  Ins.   Co.  v.  N.    W.    Iron 

Donnell,   14  Wis.   553;    Fletcher  «.  Co.,  21  Wis,  458;  McCants  v.  Bee,  1 

88 


Chap,  v.] 


EATIFICATION. 


130. 


be  informed  of  the  lesral  effect  of  the  facts.  If  he  knows  the 
facts,  it  is  enough.  But  if  the  material  facts  were  suppressed,  or 
were  unknown  to  him,  except  as  the  result  of  his  intentional  and 
deliberate  act,  the  ratification  will  be  invalid  because  founded 
upon  mistake  or  fraud.*  And  the  same  rule  applies  to  the  settle- 
ment of  the  liability  of  the  agent  to  his  principal  for  his  unau- 
thorized act." 

§  130.     6.  No  Batiflcation  of  Part  of  Act.    It  is  a  fundamental 


McCord  Ch.  883,  16  Am.  Dec.  610; 
White  V.  Davidson,  8  Md.  169,  63 
Am.  Dec.  699;  Bryant  «.  Moore,  26 
Me.  84,  45  Am.  Dec.  96;  Pennsyl- 
vania Steam  Nav.  Co.  «.  Dandridge, 
8  Gill  &  John.  (Md.)248.  29  Am.  Dec. 
643;  Bohart  v.  Oberne,  86  Kan.  284; 
Spooner  v.  Thompson,  48  Vt.  259; 
Reynolds  v.  Ferree,  86  111.  570; 
Adam8  Exp.  Co.  v.  Trego,  85  Md. 
47;  Lester®.  Kinne,  37  Conn.  9;  De- 
laney  v.  Levi,  19  La.  Ann.  251;  Wil- 
linms  V.  Storm,  6  Cold.  (Tenn.)  203; 
Miller  v.  Board  of  Education,  44  Cal. 
166;  Commercial  Bank  v.  Jones,  18 
Tex.  811;  Bannon  v.  Warfleld,  42  Md. 
22;  Bosseau  v.  O'Brien,  4  Biss.  (U. 
B.  C.  C.)  395;  Union  Gold  Min.  Co. 
«.  Rocky  Mt.  Nat.  Bank,  2  Col.  565; 
Bank  of  Owensboro  v.  Western  Bank, 
13  Bush.  (Ky.)  526,  26  Am.  Rep.  211; 
Meyer  «.  Baldwin,  52  Miss.  263;  Kerr 
9.  Sharp,  83  111.  199;  Stein  v.  Ken- 
dall, 1  111.  App.  103;  SnowB.  Grace, 
29  Ark.  131;  Turner  v.  Wilcox,  54 
Ga.  593;  Craighead  v.  Peterson,  72 
N.  Y.  279.  28  Am.  Rep.  150;  Smith 
V.  Kidd,  68  N.  Y.  130,  23  Am.  Rep. 
157;  Baldwin  v.  Burrows,  47  N.  Y. 
212;  Silverman  v.  Bush,  16  111.  App. 
437;  Hovey  ?;.  Dover,  59  N.  H.  522; 
Curry  v.  Hale,  15  W.  Va.  809:  Bdl  «. 
Cunningham,  8  Pet.  (U.  S.)  69;  Paci- 
fic Rolling  Mill  Co.  v.  Dayton,  7  Saw- 
yer, (U.  8.  C.  C.)67.  5  Fed  Rep.  852: 
Forrestier  v.  Bordman,  1  Story,  (U. 
S.  C.  C.)  52;  Reese  v.  Medlock,  27 
Tex.  120,  84  Am.  Dec.  611;  Bennecke 


V.  Ins.  Co.  105  U.  S.  355;  Fuller  v. 
Ellis,  39  Vt.  345,  94  Am.  Dec.  827; 
Deihl  V.  Adams  Ins.  Co.  58  Penn.  St. 
448;  Bevin  v.  Conn.  Mut.  L.  Ins.  Co. 
23  Conn.  244;  International  Bank  v. 
Ferris,  118  111.  465.  But  see  Scott  v. 
Middletown,  &c.,  R.  R.  Co.  86  N.  Y. 
200,  as  to  when  knowledge  will  be 
presumed. 

*  In  a  recent  case  in  Massachusetts 
it  is  held  that  it  is  not  necessary  that 
the  principal  should  have  knowledge 
not  only  of  all  of  the  facts,  but  also 
of  the  legal  effect  of  the  facts,  and 
that  he  should  then,  with  a  knowledge 
of  both  law  and  facts,  have  ratified 
the  contract  by  some  independent 
and  substantive  act.  "It  is  suffl 
cient,"  says  Allen,  J.,  "if  a  ratifi- 
cation is  made  with  a  full  knowledge 
of  all  the  material  facts.  Indeed,  a 
rule  somewhat  less  stringent  may 
properly  be  laid  down  where  one 
purposely  shuts  his  eyes  to  means  of 
information  within  his  own  possession 
and  control,  and  ratifies  an  act  de- 
liberately, having  all  the  knowledge 
in  respect  to  it  which  he  cares  to 
have."  In  Kelley  «.  Newburyport 
Horse  R.  R.  Co., 141  Mass.  496,  citing 
Combs  V.  Scott,  12  Allen  (Mass.) 
493;  Phospiiaie  of  Litne  Co.  v.  Green, 
L.  R.  7,  C.  P.  43,  1  Eng.  Rep.  89. 

»Bank  of  Owensboro  v.  Western 
Bank,  13  Bush.  (Ky.)  526.  26  Am. 
Rep.  211;  Hoffman  v.  Livingston,  46 
N.  Y.  Super.  Ct.  553. 


89 


§  131.  THE   LAW   OF   AGENCY.  [Book  I. 

rule  that  if  the  principal  elects  to  ratify  any  part  of  the  un- 
authorized  act  he  must  ratify  the  whole  of  it.  He  cannot  avail 
himself  of  it  so  far  as  it  is  advantageous  to  him,  and  repudiate 
its  obligations ;  and  this  rule  applies  not  only  when  his  ratifica- 
tion is  express  but  also  when  it  is  implied.' 

§  131.  7.  Rights  of  other  Party  must  be  prejudiced.  The 
acts  claimed  to  effect  a  ratification  must  be  of  such  a  nature  that 
the  rights  of  the  other  party  who  has  relied  upon  them  will  be 
prejudiced  if  a  ratification  has  not  taken  place.' 

§  132.  Burden  of  Proof.  The  burden  of  proving  a  ratifica- 
tion rests  upon  the  party  alleging  it.' 

§  133.  Kelief  of  Principal  when  Facts  not  fully  known.  It 
follows  necessarily  from  the  authorities  cited  to  the  general  rule 
that,  except  in  those  cases  in  which  the  principal  intentionally 
assumes  the  risk  without  inquiry,  or  deliberately  ratifies  without 
caring  for  further  information,  the  principal  will,  to  the  extent 
that  the  alleged  ratification  was  without  full  knowledge  on  his 
part  of  the  material  facts,  be  relieved  from  the  effect  of  it.* 

V. 

WHAT   AMOUNTS   TO   A    KATIFIOATION. 

§  134.  Importance  of  Question.  It  is  obvious  that  this  is  the 
most  important  question  to  be  considered  in  this  chapter,  and  that 
within  it  are  embraced,  to  a  greater  or  less  degree,  all  of  the 
prciliminary  topics  that  have  just  been  considered.  Given  the 
proper  parties  and  the  right  conditions,  does  this  writing,  this 

'McClure    e.    Briggs,   58    Vt.  82;  Crans  c.  Hunter.  28  N.  T.  8S9;  RufE- 

Eberts    v.    Selover,    44    Mich.    519;  ner  ©.  Hewett,  7  W.  Va.  585;  Mercier 

Riidasill  V.  Falls,  92  N.    C.  222;  Tas-  v.  Copelan,  73  Ga.  636;  Hutchings  ». 

ker  V.  Kenton  Ins.  Co.  59  N.  H.  438;  Ladd,  16  Mich.  493. 

Barhydt  v.    Clark,    12  HI.  App.  646;  sDoughaday  v.   Crowell,  11   N.J. 

Southern  Express  Co.  c.  Palmer,  48  Eq.  201. 

Ga.  85;  Krider  v.  Western  College,  31  "Reese  v.  Medlock,  27  Tex.  130,  84 

Iowa,  547;   Crawford  ».  Barkley,  18  Am.  Dec.  611. 


Ala.  270;  Hodnett  v.  Tatum,  9  Ga.  70 
Henderson  v.  Cummings,  44  111.  325 
Elam  V.  Carruth,  2  La.  Ann.  275 
Widner  v.  Lane,  14  Mich.  124;  Pen 
insular  Bank  v.  Hanner,  Id.  208 
Coleman    v.    Stark,    1  Oregon,  115 


*  Miller  v.  Board  of  Education,  44 
Cal,  166;  Dean  v.  Bassett,  57  Cal.  640; 
Adams  Express  Co.  v.  Trego,  35  Md. 
47;  and  see  generally  cases  cited  in 
§  129,  8upra. 


90 


Chap,  y.]  KATIFICATION.  §  137. 

conduct,  this  speaking,  this  silence,  amount  to  a  ratification  of 
this  unauthorized  contract  ?  is  the  vital  question  to  which  all  the 
preliminary  considerations  lead. 

§  135.  Written  or  unwritten— Express  or  implied.  As  has 
been  seen  and  will  hereafter  be  more  clearly  seen,  the  ratification 
of  an  unauthorized  act  is  deemed  to  be  equivalent  to  a  prior 
authority  to  perform  it ;  and  as  that  prior  authority  may  have 
been  written  or  unwritten,  express  or  implied,  so  this  ratification 
may  be  effected  in  the  same  way.* 

Where  the  facts  are  undisputed,  the  question  whether  or  not 
they  amount  to  a  ratification,  is  one  of  law  for  the  court;  but  in 
other  cases  the  question  of  ratification  or  not  becomes  one  of  fact 
to  be  determined  by  the  jury.' 

a.     Express  Batijicatlon. 

%  136.  General  Ride.  It  is  the  general  rule  that  the  act  of 
ratification  must  be  of  the  same  nature  as  that  which  would  be 
required  for  conferring  the  authority  in  the  first  instance.'  If, 
therefore,  sealed  authority  was  indispensable,  sealed  ratification 
must  be  shown ;  and  if  written  authority  was  required,  written 
ratification  must  appear.* 

§  137.  Deed  at  Common  Law  ratified  only  by  Instrument 
under  Seal.  Thus,  as  authority  to  execute  an  instrument  under 
seal  could  only  be  conferred  by  authority  under  seal,*  it  was  the 
doctrine  of  the  common  law  that  the  unauthorized  deed  of  an 
agent  could  only  be  ratified  by  an  instrument  under  seal.* 

'  Goss  V.  Stevens,    82  Minn.    472;  ner."    Parker,    C.   J.    in   Despatch 

Post,  Subd.  a  and  b;   Taylor  v.  Con-  Line  ».  Bellamy  Mfg.    Co.    12  N.  H. 

ner.  41  Miss.  732,  97  Am.  Dec.  419.  205;  37  Am.  Dec.  203. 

sSwartwout  v.    Evans,  37  111.  443;  <  Pollard  ».  Gibbs,  55  Ga.  45;  Grove 

Trustees?).    McCormick,    41  111.  323;  v.  Hodges,  55  Penn.  St.  504;  Palmer 

Marine  Co.  e.  Carver,  42  111.  66;  Paul  v.  Williams,  24  Mich.  328;  and  cases 

V.  Berry,  78  111.    158;   Henderson  v.  cited  in  following  section.     Where  a 

Cummings,  44  111.  325.  statute  required  that  the  authority  of 

8  "  A  ratification  of  an  act  done  by  an  agent  to  make  contracts  of  surety- 
one  assuming  to  be  an  agent  relates  ship  should  be  in  writing,  a  subse- 
back  and  is  equivalent  to  a  prior  au-  quent  parol  ratification  was  held  in- 
thority.  When  therefore  the  adop-  sufflcieut.  Kagan  v.  Chenault,  78 
tion  of  any  particular  form  or  mode  Ky.  545. 
is  necessaiy  to  confer  the  authority  in  ^Ante,  %  82. 

the  first  instance  there  can  be  no  valid  «  Despatch   Line  v.   Bellamy  Mfg. 

ratification  except  in  the  same  man-  Co.  supra;  Spoffard  v.  Hobbs.  29  Me. 

91 


ft  133,  THE    LAW    OF    AGENCY.  [Book  I. 

8  138.  Same  Subject— Rule  relaxed  in  Partnership  Cases. 
This  rule  has  been  j^jreatly  relaxed  in  partnership  cases,  and  it  is 
now  quite  universally  held  that  the  act  of  one  partner  in  execut- 
ino",  in  the  name  of  the  firm,  an  instrument  under  seal,  may  be 
ratified  by  the  other  partner  by  parol.  Said  Breese  C.  J. :  "  We 
think  it  may  be  safely  said  that  the  modern  rule  is  that  one  part- 
ner may,  in  furtherance  of  the  partnership  business  and  for  its 
benefit,  execute  a  deed  under  seal  which  will  be  binding  on  the 
other  if  he  has  foreknowledge,  or  subsequently  ratifies  it,  and 
this  may  be  proved  by  acts  and  circumstances  or  by  his  verbal 
declarations  and  admissions."  * 

S  139.  Same  Subject— Massachusetts  Rule.  And  in  Massa- 
chusetts the  court  has  gone  still  further,  and  it  is  said  that  the 
law  is  settled  in  that  commonwealth  that  the  unauthorized  execu- 
tion of  a  deed  in  the  name  either  of  a  partnership  or  of  an  indi- 
vidual may  be  ratified  by  parol." 

8  140.  Same  Subject— Modem  Rule  more  liberal.  As  has 
been  already  stated,  the  tendency  in  modern  times  is  to  attach 
less  importance  to  the  presence  of  a  seal,  and  to  mitigate  the 
severity  of  those  technical  rules  of  the  common  law  which  were 
based  upon  reasons  no  longer  applicable  to  the  conditions  and 
methods  of  the  present  day.   In  many  of  the  States  statutes  have 

148,  48  Am.  Dec.  521;  Bellas  e.Hays,  an  authority  under  seal  is  sufficient. 
5  Serg.  &  R.  (Penn.)  427,  9  Am.  Dec.  Blood  v.  Goodrich,  12  Wend.  (N.  Y.) 
385;  Stetson  v.  Patten,  2  Greenl.  (Me.)  525,  27  Am.  Dec.  152. 
358;  11  Am.  Dec.  Ill;  Blood ».  Good-  *  Peine  v.  Weber,  47  111.  45;  and  to 
rich,  9  Wend.  (N.  Y.)  68,  24  Am.  the  same  effect  are  Mclntyre  v.  Park, 
Dec!  121;  McDowell  v.  Simpson,  3  11  Gray  (Mass.)  102.  71  Am.  Dec. 
Watts  (Penn.).  129,  27  Am.  Dec.  338;  690;  Cady  v.  Shepherd,  11  Pick. 
Heath  v.  Nutter,  50  Me.  378;  Paine  v.  (Mass.)  400,  22  Am.  Dec.  379;  Skin- 
Tucker,  21  Id.  138,  38  Am.  Dec.  255;  ner  v.  Dayton,  19  Johns.  (N.  Y.)  513. 
Hanford  v.  McNair,  9  Wend.  (N.  Y.)  10  Am.  Dec.  286;  Holbrook  v.  Cham- 
54;  Taylor  v.  Robinson,  14  Gal.  400;  berlain,  116  Mass.  155,  17  Am.  Rep. 
Ingram  v.  Little,  14  Ga.  173,  58  Am.  146;  Russell  v.  Annable,  109  Mass.  73, 
Dec.  549;  Drumrlght  v.  Philpot,  16  12  Am.  Rep.  665;  Kendall  t).  Garland, 
Ga.  424,  60  Am.  Dec.  738;  Pollard  v.  5  Gush.  (Mass.)  79;  Swan  v.  Stedman. 
Gibbs,55  Ga.  45;  Grove  v.  Hodges,  55  4  Mete.  (Mass.)  552;  Dillon  v.  Brown, 
Penn.'  St.  504;  McCracken  v.  San  11  Gray  (Mass.)  179. 
Francisco,  16  Cal.  591;  and  upon  a  G ray,  C.  . I.  in  Holbrook  «.  Cham- 
analogous  reasoning  is  Ragan  r.  Chen-  berlain,  116  Mass.  155,  17  Am.  Rep. 
ault,  78  Ky.  545.  146;  Mclntyre  v.  Park,  11  Gray 
But  a   parol     acknowledgment  of  (Mass.)  102,  71  Am.  Dec.  690. 

92 


Chap,  y.]  EATIFIOATION.  §  144r. 

been  enacted  by  which  the  absence  of  a  seal  from  an  instrument 
formerly  requiring  it  is  declared  to  be  immaterial,  or  by  which  all 
of  the  old  distinctions  between  sealed  and  unsealed  instruments 
are  swept  away.*  Where  such  statutes  prevail,  the  technical  rule 
requiring  a  ratification  under  seal  would  have  no  force. 

§  141.  Unnecessary  Seal  may  be  disregarded.  In  accordance 
with  rules  previously  referred  to,*  if  the  instrument  executed  by 
the  accent,  though  under  seal,  be  one  upon  which  no  seal  was  re- 
quired, the  seal  may  be  disregarded  and  the  instrument  ratified 
as  a  simple  contract.' 

§  142.  By  Authority  subsequently  conferred.  The  unauthor- 
ized execution  of  a  deed  may  be  expressly  ratified  by  a  power  of 
attorney  subsequently  executed  authorizing  its  execution  and 
dated  back  prior  to  the  date  of  the  deed.  Thus,  where  an  at- 
torney appointed  by  parol,  executed  a  bond  in  the  name  of  his 
principal,  and  afterwards  his  principal  gave  him  a  power  of 
attorney  dated  prior  to  the  bond  and  authorizing  its  execution, 
this  was  held  to  be  a  good  ratification  of  the  bond  and  that  the 
principal  was  estopped  to  assert  that  the  power  of  attorney  was, 
as  a  matter  of  fact,  executed  subsequently  to  the  bond.*  So  a 
letter  from  a  principal  authorizing  certain  acts,  but  received  after 
the  performance,  will  be  a  ratification.* 

§  143.  By  Answer  in  Chancery.  So  where  a  sheriff  under 
the  authority  and  by  the  direction  of  B  sold  certain  lands  in 
which  B  had  an  interest,  making  a  deed  thereof  in  B's  name, 

1  Provisions  of  this  nature  are  found  But,  contra,  Howe  v.  Ware,  30  Ga. 

in  Arkansas,  California,  Dakota,  In-  278;  Pollard  v.  Gibbs,  55  Ga.  45. 

diana,  Iowa.  Kansas,  Micliigan,  Mis-  *  Milliken   v.    Coombs,    1   Greenl. 

sissippi,  Montana,  Nebraska,  Tennes-  (Me.)  343,  10  Am.   Dec.    70;  United 

see,   Texas,   and  probably  in  other  States  Express  Co.   v.  Rawson,  106 

States.  Ind.  215;  Riggin  v.  Grain,  —  Ky.  — , 

iAnte  §95.  5  S.  W.  Rep.  561. 

»  Adams  v.    Power,   52  Miss.  828,  « Rice    v.    McLarren,    42  Me.  157. 

citing  Worrall  v.  Munn,  5  N.  Y.  229,  But  in  Moore  v.  Lockett,  2  Bibb  (Ky.) 

55  Am.  Dec.   330;   Lawrence  v,  Tay-  67,  4  Am.  Dec.  683,  it  was  held  that  a 

lor,  5  Hill   (N.  Y.),    113;  Randall  v.  letter  giving  an   agent   power  to  sell 

Van  Vechten,  19  Johns.   (N.  Y.)  60.  but  written  subsequently  to  an  unau- 

10  Am.  Dec.  193;  Evans  v.  Wells,  23  thorized   sale   under   an    insufficient 

Wend.  (N.  Y.)  340.     And  to  the  same  power,   did   not  ratify  the  previous 

effect  are  State  v.  Spartansburg,  &c.  sale.     And  see  Stillman  v.  Fitzgerald, 

R.  R.  Co.  8  S.  C.  129;   Hammond  v.  —  Minn—,  33  N.  W.  Rep.  564. 
Hannin,  21  Mich.  374,  4  Am.  Rep.  490. 

93 


g  14.4.,  THE    LAW    OF    AGENCY.  [Book  1. 

and  B,  in  liis  answer  to  a  bill  in  chancery  filed  in  relation  to  this 
transaction,  admitted  the  sale  as  aforesaid,  the  court  held  the  ad- 
mission to  be  a  confirmation  of  the  sale  of  B's  interest.* 

§144.  Contract  for  Sale  or  leasing  of  Land  ratified  by  ParoL 
It  has  been  seen  that  in  many  of  the  States,  authority  to  make 
contracts  for  the  sale  or  leasing  of  land  of  the  principal  is  not  re- 
quired to  be  in  writing,'  and  it  has,  therefore,  been  held  that  in 
these  States  the  unauthorized  making  of  such  contracts  may  be 
Bubsequently  ratified  without  writing.*  And  even  in  a  State 
where  the  agent's  authority  was  required  to  be  in  writing  it  was 
held  that  such  a  contract  might  be  ratified  by  paroL* 

S  145.  "  Lawfully  authorized "  •  under  Statute  of  Frauds. 
And  it  has  been  held  sufficient  to  satisfy  that  provision  of  the 
Statute  of  Frauds  which  requires  that  the  contract  shall  be  in 
writing,  signed  by  the  principal  or  by  some  one  thereunto  by  him 
lavyfully  authorized^  to  show  a  subsequent  ratification  of  the  act 
of  the  agent  in  signing  such  a  contract.* 

h.     Implied  Ratification. 

I  146.  In  general.  But  since,  as  has  been  seen,  authority  for 
the  doing  of  any  lawful  act, — except  in  those  cases  in  which  an 
authority  in  writing  or  under  seal  is  expressly  required, — can  be 
conferred  by  parol,  and  since  the  existence  of  such  authority  may 
be  presumed  from  the  conduct  of  the  parties,  so  also,  with  the 
same  exceptions,  the  unauthorized  doing  of  any  such  act  may  be 
ratified  by  parol,  and  the  fact  of  such  ratification  may  likewise 
be  presumed  from  the  conduct  of  the  parties.  In  this  case  also, 
as  in  the  other,  it  will  be  found  that  this  is  the  most  usual  method 
by  which  the  result  is  effected. 

The  reasons,  too,  are  similar.  "Whoever  by  his  acts,  his  words 
or  his  silence,  has  led  an  innocent  third  person  reasonably  to  con- 
clude that  the  act  of  another  in  his  behalf  has  been  adopted  and 
sanctioned  by  him,  and  has  permitted  such  third  person  to  rely 
thereon  in  such  a  manner  as  to  prejudice  his  rights  if  the  conclu- 

'  Stoney  c.  Shultz,  1  Hill  Ch.  (S.C.)  <  Hammond  ».    Hanuin,   21  Mich. 

465.  27  Am.  Dec.  429.  374,  4  Am,  Rep.  490. 

syl/ife,  §89.  sMcLeaa  v.    Dunn,    4  Bing.    722; 

3]\IcDowell  V.  Simpson,  8  Watts  Soames  «.  Spencer,  1  Dowl.  &  R.  32, 
(Pcnn.)  129,  27  Am.  Dec.  338. 

94 


Chap,   v.]  KATrFICATION.  §  148. 

Bion  is  Dot  correct,  ought  not  to  be  heard  to  assert  that  the  fact 
is  otherwise  than  he  has  caused  or  permitted  it  to  appear. 

Ratification,  like  authorization  of  which  it  is  the  equivalent,  is 
generally  the  creature  of  intent,  but  that  intent  may  often  be 
presumed  by  the  law  in  cases  where  the  principal,  as  matter  of 
fact,  either  had  no  express  intent  at  all,  or  had  an  express  intent 
not  to  ratify. 

These  acts,  words,  silence  of  the  principal  are  sometimes  spoken 
of  as  in  themselves  a  ratification.  As  a  rule,  however,  this  is 
not  strictly  accurate.  They  are  rather  the  evidence  of  a  ratifica- 
tion, than  the  ratification  itself. 

§  147.  Variety  of  Methods.  The  methods  by  which  a  rati- 
fication may  be  effected  are  as  numerous  and  as  various  as  the 
complex  dealings  of  human  life.  It  is  impossible  to  state  them 
all.  But  certain  forms  that  have  been  judicially  passed  upon 
may  be  grouped,  and  instances  be  given  which  may  furnish  a  rule 
for  future  cases. 

§  148.  By  accepting  Benefits.  It  is  a  rule  of  quite  universal 
application  that  he  who  would  avail  himself  of  the  advantaa^es 
arising  from  the  act  of  another  in  his  behalf  must  also  assume 
the  responsibilities.  If  the  principal  has  knowingly  appropriated 
and  enjoyed  the  fruits  and  benefits  of  an  agent's  act  he  will  not 
afterwards  be  heard  to  say  that  the  act  was  unauthorized.  One 
who  voluntarily  accepts  the  proceeds  of  an  act  done  by  one 
assuming,  though  without  authority,  to  be  his  agent,  ratifies  the 
act  and  takes  it  as  his  own  with  all  its  burdens  as  well  as  all  its 
benefits.  He  may  not  take  the  benefits  and  reject  the  burdens, 
but  he  must  either  accept  them  or  reject  them  as  a  whole.^     But 

'Ruffglesu.  Washington  Co.  3  Mo.  Wright  (Ohio)  663;  Davis  ».  Krum, 

496;  Hastings  v.  Bangor  House,    18  12  Mo.  App.  379;  Parish  «.  Reeve,  63 

Me.  436;  Low  v.  Conn.,  «&c.,  R.  R.  Wis.  315;  Hauss  v.  Niblack,  80  Ind. 

Co.,  46  N.  H.  284;  Reid  v.  Hibbard,  407;  Rich  v.  State  Natl.  Bank,  7 Neb. 

6  Wis.    175;    Cushman  v.   Loker,   3  201;  Fowler  c.  N.  Y.  Gold  Exchangt;. 

Mass.  106;  Narragansett  Bank  v.  At-  67  N.  Y.  138;  Snow  v.  Grace,  29  Ark. 

lautic  Co.,  3  Mete.  (Mass.)  283;  Cod-  131;  State  v.  Smith,  48  Vt.  266;  Dunn 

vfise  V.  Hacker,    1  Cai.  (N.  Y.)  526;  v.  Hartford,  &c.,  R.  R.  Co.,  43  Conn. 

Moss  V.  Rossie  Co.,  5  Hill  (N.  Y.)  137;  484;  Hurd  v.  Marple,  2  111.  App.  403; 

Palmerton  v.  Huxford,  4  Den.  (N.  Y.)  Ely  v.  James,  123  Mass.  36;  Aurora 

166;  Houghton  v.   Dodge,    5  Bosw.  Agl.    Soc.    v.  Paddock.   80   111.   263; 

(N.  Y.)  326;  Farmers',  &c..  Bank  v.  Bacon  v.  Johnson,  56  Mich.    183;  Ea- 

Sherman,  6  Id.  181;  State  v.  Perry,  die  p.  Ashbaugh,  44  Iowa,  519;  Man- 

95 


§  149.  THE    LAW    OF    AGENCY.  [Book  T, 

here,  as  in  other  cases,  it  is  indispensable  that  the  principal 
should  have  had  full  knowledge  of  the  material  facts,  or  that  he 
should  have  intentionally  accepted  the  benefits  without  inquiry. 
Otherwise  the  receipt  and  retention  of  the  benefits  of  the  unau- 
thorized act,  is  no  ratification  of  it.* 

§  149,  Same  Subject— Instances.  Thus  a  principal  who,  with 
full  knowledge  of  the  facts,  receives  and  appropriates  to  his  own 
use  without  objection,  the  purchase  price  or  rent  of  land  or  other 
property  sold  or  rented  by  one  assuming  to  act  on  his  behalf  as 
his  agent,  ratifies  the  act.*  Bat  the  mere  receipt  of  a  portion  of 
the  money,  realized  from  an  unauthorized  sale  by  a  sheriff,  will 
not  ratify  the  sale  ;*  nor  will  the  receipt  of  money  ratify  the  sale 
where  the  principal  would  have  the  right  to  receive  the  money 
without  ratifying  tlie  sale;*  nor  if  the  principal  demand  from 
the  agent,  money  which  the  agent  has  misapplied,  will  such  de- 
mand ratify  the  misapplication.^  But  where  the  owner  of  a 
judgment  with  knowledge  of  the  facts  retains  the  proceeds  of  an 
unauthorized  assignment  of  it,  he  will  be  assumed  to  have  rati- 
fied the  assignment.*  And  so  where  the  owner  of  a  mortgage 
voluntarily  accepted  the  proceeds  of  an  unauthorized  discharge 
of  it,  the  discharge  was  held  to  be  ratified.'  And  again,  where 
the  principal  knowingly  accepts  of  security  taken  by  an  agent  in 

dorff  V.  Wickersham,  63  Penn.    St.  See    also  Walworth,    &c.    Bank    e. 

87,  3  Am   Rep.  531;  Waterson  v.  Ro-  Farmers'  &c.  Co.,  16  Wis.  629;  Pow- 

gers,  21  Kan.  529.  ell  v.  Gossom,  18   B.   Monroe   (Ky.) 

'Bohart  v.  Oberne,  36  Kans,  284;  179;  Baines?).  Burbridge,  15  La.  Ann. 
Schutz  V.  Jordan,  32  Fed.  Rep.  55;  628;  Breithhaupt  v.  Thurmond,  3 
Kelley  v.  Newburyport  Horse  R.  R.  Rich.  (S.  C.)  216;  Harris  v.  Simmer- 
Co., 141  Mass.  496;  Combs  v.  Scott,  12  man,  81  111.  413. 
Allen  (Mass.)  493;  Phosphate  of  Lime  » Harris  v.  Miner.  28  111.  135;  Smith 
Co.  t).  Green,  L.  R.  7  C.  P.  43,  and  v.  Tracy,  36  N.  Y.  79. 
cases  cited  in  preceding  note.  <  Wliite  v.  Sunders.  32  Me.  188. 

sLindroth    v.   Litchfield,    27    Fed.  »Blevins  e.  Pope.  7  Ala.  371. 

Rep.  894;  Reynolds  v.   Davison,  34  'Wallace  «.  Lawyer,  90  Ind.  499. 

Md.  662;  Abbott  v.  May,  50  Ala.  97;  And  where  a  bank  appropriates  to  its 

Snow  D.  Grace,  29  Ark.  131 ;  Turner  own    use,    bonds    purchased    by    its 

V.  Wilcox,  54  Ga.  593;  Seago  v.  Miir-  cashier  without  authority,  it  cannot 

ten,  6  Heisk.  (Tenn.)  308;   Roby  ».  afterwards  repudiate  the  cashier's  act. 

Cos'sitt,  78  111.  638;  Warden  v.  Eich-  Logan  County   Bank  v    Townsend, 

baum.    3  Grant  (Penn.)    Cases,    42;  —  Ky.  — ,  3  S.  W.  Rep.  123. 

Lyman  v.  Norwich  University.  28  Vt.  'Tooker  e.  Sloan,  30  N.  J.  Eq.  394. 
560;  Pierce  v.  O'Keefe,  11  Wis.  180. 

96 


Chap,  v.]  RATIFICATION.  §  150. 

pursuance  of  an  arrangement  made  with  a  debtor,  the  arrange- 
ment 80  made  will  be  deemed  to  be  ratified ; '  and  so  the  volun- 
tary acceptance  of  the  avails  of  a  compromise  made  by  an  agent 
will  ratify  the  compromise,*  and  the  voluntary  retention  of  a 
conveyance  of  lands  which  an  agent  has  taken  from  a  debtor  in 
payment  of  a  debt,  will  sanction  such  payment.'  So  where  a 
principal  shipped  cotton  to  his  broker  with  instructions  not  to 
sell  at  less  than  a  certain  price,  and  the  broker  sold  for  less  than 
tliat  rate  and  immediately  notified  his  principal,  it  was  held  that 
the  principal  by  drawing  the  proceeds  of  the  sale  witliout  objec- 
tion, ratified  the  act  of  the  broker  in  selling  at  the  smaller 
price.* 

Where  an  agent  sold  his  principal's  property  without  authority 
and  embezzled  the  proceeds,  and  the  principal,  with  full  knowl- 
edge of  the  facts,  took  from  the  agent  something  in  satisfaction 
of  the  wrong,  it  was  held  that  the  principal  had  ratified  the  sale 
made  by  the  agent,  and  could  not  afterwards  pursue  the  property 
Bold.'  But  where  a  principal  without  full  knowledge  of  the 
facts,  took  from  an  agent  security  for  money  collected  by  the 
agent  from  debtors  of  the  principal,  and  wrongfully  appropriated 
to  his  own  use,  it  was  held  that  this  would  not  ratify  the  pay- 
ments to  the  agent  because  done  without  full  knowledge  of  the 
facts ;  •  and  for  the  same  reason  where  one  who  was  in  the  pos- 
session of  the  plaintiff's  horse  sold  him  without  authority  to  the 
defendant,  receiving  in  payment  therefor  a  check  which  he 
endorsed  and  gave  to  the  plaintiff  in  payment  of  a  debt  he  owed 
him,  but  did  not  inform  him  of  its  origin,  it  was  held  that  the 
plaintiff  by  collecting  the  check,  and  applying  the  proceeds  to 
the  payment  of  the  debt,  without  knowledge  of  the  sale  of  the 
horse  had  not  ratified  such  sale.' 

§  150.  Same  Subject— Other  Instances.  So  where  one,  on 
whose  account  an  agent  has  bought  goods  without  authority,  with 
full  knowledge  of  the  facts,  accepts,  uses  and  sells  them,  he  will 

»Keelert).  Salisbury,  33  N.  Y.  648.  'Smith  v.  Kidd,  68  N.  Y.  130,    23 

•  Strasser  v.  Conklin,  54  Wis.  103.        Am.  Rep.  157. 

•Miles  c.  Ogden,  54  Wis.  573.  TThacher  v.  Pray,  113  Mass.    291; 

*  Meyer  v.  Morgan,  51  Miss.  21,  24  18  Am,  Rep.  480.  And  to  the  same 
Am.  Rep.  617.  effect  is  Penn.,  &c..  Co.  v.  Dandridge, 

"Ogden  V.  Marchand,  39  La.  Ann.  8  Gill  «fc  John.  (Md.)248,  29  Am.  Dec. 
61.  643. 

7  97 


8    150.  THE   LAW    OF    AGENCY.  [Book  I. 

be  deemed  to  have  ratified  the  purchase  and  will  be  liable  for  the 
price.'  In  such  a  case  the  court  said :  "  If  one  purchase  goods 
for  another  without  authority,  and  the  person  for  whom  they  are 
purchased  receives  them  and  uses  or  sells  them  on  his  own 
account,  after  being  informed  that  they  were  purchased  for  hira, 
this  is  an  implied  ratification  of  the  agency.  And  if,  on  receiv- 
ing the  goods,  and  being  informed  that  they  were  purchased  in 
his  name,  he  merely  informs  the  seller  that  the  purchase  was  un- 
authorized, this  is  not  enough.  He  should  either  restore  the 
goods  to  the  seller  or  pay  for  them  if  he  converts  them  to  his 
own  purpose."  * 

But  where  an  agent  had  purchased  goods  without  authority 
and  added  them  to  his  principal's  stock,  and  the  principal,  upon 
discovering  the  fact,  attempted  to  select  such  of  the  goods  as  re- 
mained unsold,  for  the  purpose  of  returning  them  to  the  vendor, 
but  was  unable  to  identify  them,  it  was  held  that  his  retention  of 
the  goods  under  such  circumstances  was  no  ratification  of  the 
agent's  purchase." 

And  where  one,  to  whom  certain  goods  were  sent  by  an  agent's 
order  on  approval,  claimed  to  be  the  owner  of  the  goods  at  the 
time  of  an  attempted  levy  upon  them  as  the  property  of  another, 
he  was  held  to  have  ratified  the  agent's  act  and  accepted  the 
o-oods.*  So  where  an  agent  exchanged  a  mule  for  a  horse  with- 
out authority,  the  principal's  subsequent  assertion  of  title  to  the 
iorse  was  held  to  be  a  ratification  of  the  trade.*  So  in  a  case 
involving  the  ratification  of  a  loan  made  by  a  committee  of  an 

•Piker.  Douglass,  28  Ark.  59;  Mc-  the  truth  of   the  case  and  demand 

Dowell   «.  McKinzie,    65    Ga.    630;  payment.     If  the  principal  accepts 

Hastings  v.   Bangor  House,   18  Me.  the  property,  knowing  all  the  facts, 

^^g  that  is  a  ratification  of   the  agency  ; 

»  Pike  V.  Douglass,  supra.  See  also  but  even  if  he  knows  nothing  of  the 
Ketchum  v.  Verdell,  42  Ga.  534,  facts,  but  accepts  the  property  as 
where  it  was  said  by  McKay,  J.,  sold  him  by  the  agent,  yet  if  the 
"  The  general  rule,  as  I  understand  agent  was  not  in  fact  the  true  owner 
it,  is  that  where  one  professes  to  act  as  and  the  seller  so  notifies  the  pur- 
agent  of  another,  even  if  he  has  no  chaser  before  any  settlement,  the 
authority  at  all,  and  as  such  agent  ob-  right  of  action  in  the  seller  exists." 
tains  goods  which  in  fact  go  to  the  '  Schutz  v.  Jordan,  33  Fed  Rep.  55. 
use  and  benefit  of  the  principal,  the  « Brooks  v.  Fletcher,  56  Vt.  624. 
seller  may  at  any  time  before  the  » Jones  c.  Atkinson,68  Ala.  167.  See 
principal  has  settled  with  the  pre-  also  Cochran  «.  Chitwood,  59  111.  53. 
tended  agent,  notify  the  principal  of 

98 


Chap,  y.]  KATIFIOATION.  §  151. 

agricultural  association,  Bkickell,  C.  J.,  said :  "It  is  shown  very 
fully  that  the  association  ratified  and  approved  all  the  acts  of  the 
executive  committee  in  this  transaction,  not  only  the  mode 
adopted  in  borrowing  the  money  but  the  execution  of  the  mort- 
gage. We  do  not  mean  that  it  was  shown  that  there  was  assent 
to,  and  confirmation  of  the  transaction  expressed  in  words.  That 
is  not  essential,  for  ratification  is  more  often  implied  from  the 
acts  and  conduct  of  parties  having  an  election  to  avoid  or  confirm 
than  found  expressed  in  words.  And  it  is  implied,  whenever  the 
acts  and  conduct  of  the  principal  having  full  knowledge  of  the 
facts  are  inconsistent  with  any  other  supposition  than  that  of  pre- 
vious authority  or  an  intention  to  abide  by  the  act  though  it  was 
unauthorized.  Here  the  association  accepted  all  the  benefits  of 
the  transaction,  received  and  appropriated  to  its  own  uses  the 
money  obtained  on  the  promissory  notes  and  has  acquiesced  in 
all  that  was  done  by  the  executive  committee,  not  even  now  ob- 
jecting that  it  was  unauthorized.  A  corporation  has  as  full  capa- 
city as  a  natural  person  to  ratify  the  unauthorized  or  defectively 
executed  act  of  its  agents  and  the  ratification  is  the  equivalent  of 
a  prior  authority.  Having  received  and  retained  the  benefits  of 
the  transaction  with  full  knowledge  of  all  the  facts,  the  associa- 
tion has  ratified  and  confirmed  it  unless  intentional  fraud  is 
shown  for  which  there  is  neither  room  nor  reason." ' 

§  151.  By  bringing  Suit  based  on  Agent's  Act.  One  of  the 
most  unequivocal  methods  of  showing  ratification  of  an  agent's 
act  is  the  bringing  of  an  action  at  law  based  upon  such  act. 
Thus  a  demand  made  by  an  agent  will  be  deemed  to  be  ratified 
by  the  principal,  if  he  brings  an  action  founded  upon  such  de- 
mand,* and  ratification  by  a  bank  of  its  cashier's  endorsement  of 
a  note  is  established  by  the  fact  that  the  bank  prosecutes  an  action 
on  the  note  in  the  name  of  the  endorsee;'  so  if  the  principal 
appear  in  court  and  prosecute  an  action  of  attachment  begun  in 
his  name  by  one  assuming  to  act  as  his  agent,  he  will  be  held  to 
have  ratified  the  act  of  such  agent  in  signing  his  name  to  the 

I  Taylor  v.  A.  &  M.  Association,  68  N.  H.  34;  Town  of  Grafton  v.  Fol- 
Ala.  229.  And  to  the  same  effect  is  lansbee.  16  N.  H.  450,  41  Am.  Dec. 
Maddux  v.  Bevan,  39  Md.  485.  736. 

sHamu.  Boody,  20  N.  H.  411.  51  8Corser».  Paul,  41  N.   H.   24,  77 

Am.  Dec.   235;  Payne  r.   Smith,  12      Am.  Dec.  753. 

99 


§  152.  THE    LAW    OF   AGENCY.  [Book  I. 

attachment  bond.'  And  where  a  vendor  who  has  been  defrauded 
in  a  sale  of  his  goods  made  by  an  agent,  proceeds  to  judgment 
against  the  vendee  after  being  fully  apprised  of  the  fraud,  he 
ratifies  the  sale.'  And  where  an  agent  without  authority  had 
consigned  his  principal's  goods  for  sale,  and  the  principal  brought 
an  action  against  the  agent  for  the  price  and  value  of  the  goods 
80  consigned,  it  was  held  a  prima  facie  ratification  of  the  consign- 
ment,' and  an  action  to  enforce  a  contract  made  by  an  agent,  is 
sufficient  evidence  of  the  agent's  authority  to  make  it.*  And  an 
action  to  recover  upon  a  note  taken  in  payment  of  goods  sold  by 
an  agent,  ratifies  the  sale,  and  with  it,  in  cases  where  tlie  ageiit 
would  have  authority  to  warrant,  a  warranty  made  by  the  agent 
as  a  part  of  the  sale.'  And  bringing  an  action  on  a  mortgage 
taken  by  an  agent,  ratifies  his  act  in  taking  it.'  So  a  princi- 
pal's abandonment  of  a  suit  upon  a  compromise  of  the  cause  of 
action  by  an  agent  ratifies  the  compromise.' 

§  152.  Mere  Delay  in  siiing,  no  Rattflcation.  Where,  how- 
ever, the  principal  has  expressly  repudiated  an  unauthorized  act, 
mere  delay  in  bringing  a  necessary  suit  cannot  be  construed  into 
a  ratification.' 

§  153.  Ratification  by  Acquiescence— Silence.  It  is  a  maxim 
of  the  law  that  he  who  remains  silent  when  in  conscience  he 
ought  to  speak,  will  be  debarred  from  speaking  when  in  con- 
science he  ought  to  remain  silent,  and  this  rule  is  of  frequent 
application  in  determining  whether  or  not  an  alleged  principal 
has  set  the  seal  of  his  sanction  upon  a  transaction  assumed  to 
have  been  done  in  his  behalf. 

§  154.  Same  Subject— Election.  A  principal  npon  being  in- 
formed of  the  unauthorized  act  of  another  in  his  behalf,  has  the 

•Bank  of    Augusta  v.  Conrey,  28  » Franklin c.  Ezell,  1  Sneed  (Tenn.) 

Miss.  667;  Dove  v.  Martin,  23  Miss.  497;  Cochran  e.  Chitwood,  59  111.  53 

588.  Smith  v.  Tracy.  36  N.  Y.  79. 

•Lloyd  V.  Brewster,  4    Paige  (N.  "Partridge  v.  White.   59  Me.  564. 

Y.)537;  Bank  of  Beloit  «.  Beale,  34  And  see    Beidman   ».    Goodell,    56 

N.  T.  473.  Iowa,  592. 

•Frank  v.  Jenkins,  22  Ohio  St.  597.  »  Hoit  v.  Cooper,  41  N.  H.  111. 

♦Dodge  V.  Lambert,   2  Bosw.  (N.  •McClure    «.     Evartson,    14   Lea 

T.)570;  Benson  v.  Liggett,  78  Ind.  (Tenn.)  495. 
452. 

100 


Chap,   v.]  RATIFICATION.  §  155. 

right  to  elect  whether  he  will  ratify  or  repudiate  the  act.'  And 
this  right  of  election  belongs  in  the  first  instance  to  him  alone, 
and  so  long  as  the  condition  of  all  parties  remains  unchanged,  he 
cannot  be  prevented  from  ratifying  because  the  other  party  may, 
for  any  reason,  prefer  to  treat  the  act  as  invalid.*  And  even 
though  at  first  he  may  disapprove,  he  may  afterwards,  if  the  con- 
dition of  all  parties  remains  unchanged,  elect  to  give  confirma- 
tion to  the  act/ 

§  155.     Same  Subject— Must  elect  within  a  reasonable  Time. 

But  where  the  rights  and  obligations  of  third  persons  may  depend 
on  his  election,  it  is  obvious  that  he  is  bound  to  act  or  suffer  the 
necessary  consequences  of  inaction,  and  that  if,  after  knowledge, 
he  remains  entirely  passive  in  regard  to  the  transaction,  it  is  but 
just,  when  the  protection  of  third  persons  may  require  it,  to  pre- 
sume that  what  upon  knowledge  he  has  failed  to  repudiate,  he 
has  at  least  tacitly  confirmed.*  If  therefore  he  would  escape  re- 
sponsibility for  the  act,  he  must  give  notice  of  his  non-concur- 
rence. The  time  within  which  this  notice  is  to  be  given  has  not 
been  settled  with  absolute  harmony  by  the  courts.  Many  cases 
hold  that  the  principal  is  bound  to  act  at  once  upon  receiving 
knowledge,'  but  the  better  rule  and  the  one  supported  by  the 
majority  of  the  authorities,  is,  that  if  the  principal  desires  to  re- 
pudiate the  transaction  he  must  give  notice  thereof  within  a 
reasonable  time  after  becoming  fully  informed  ;  and  that  if  he 
does  not  so  dissent  his  silence  will  afford  conclusive  evidence  of 
his  approval.*     What  shall  be  deemed  to  be  a  reasonable  time 

»  Andrews  «.  ^tna  L.   Ins.  Co.  93  Coker,  11  Heisk.  (Tenn.)  579;  Hart  v. 

N.  Y.  596.  Dixon,  5  Lea  (Tenn.),  336;  Meister  v. 

s  Idem.     But  see  post,  %  179.  Cleveland  Dryer  Co.  11  111  App.  227. 

8  Woodward  v.  Harlow,  28  Vt.  338.  •  Saveland   v.    Green,  40  Wis.  431 ; 

*  Saveland  v.  Green,  40  Wis.  431.  Heyn  v.  D'Hagen.  60  Mich.   157;  Mo- 

5  Ward  V.  Williams,  26  111.  447,  79  bile  &  Montgomery  Ry.  Co.  ».  Jay.  65 

Am.  Dec.  385;  Johnston  v.  Berry,  3  Ala.    113;   Miller  v.  Excelsior  Stone 

111.  App.  256;  Pitts  v.  Shubert,  11  La.  Co.  1  111.  App.  273;  Hamlin  v.  Sears; 

286,    30    Am.    Dec.   718;  Kehlor  v.  82  N.  Y.  327;   Meyer  v.    Morgan,   51 

Kemble,  26  La.  Ann.  713;  Foster  c.  Miss.  21;  24  Am.  Rep.  617;  Wright  v. 

Rockwell.    104  Mass.    167;  Crane  v.  Boynton,   37  N.  H.   9;  Gold  Mining 

Bed  well,  25  Miss.  507;  Bredin  v.  Du-  Co.  v.  National  Bank,    96  U.  S.  640; 

barry,  14  Serg.  &  R.  (Penn.)  27;   Kel-  Parish  ®.  Reeve,  63  Wis.    315;    Alex- 

sey  V.   National   Bank  of  Crawford  auder®.  Jones,  64  Iowa,  207;  Lafitte«. 

Co.   69  Penn.   St.  426;   Williams  v.  Godchaux,35  La.  Ann.  1161;  Breed  c. 

Storm,   6  Cold.    (Tenn.)  203;  Fort  a.  Central  City  Bank,  6  Col.   235;  Gold 

101 


§  156.  THE   LAW    OF   AGENCY.  [Book  I. 

depends  in  this  case  as  in  others  upon  the  situation  of  the  parties 
and  the  facts  and  circumstances  of  the  case.' 

§  156.  Sanie  Subject— Sleeping  on  Rights.  This  rule  is  the 
familiar  one  of  reasonable  promptness.  Parties  must  not  sleep 
upon  their  rights.  To  use  the  forcible  language  of  a  Louisiana 
judge,  "  The  genius  of  our  law  does  not  favor  the  claims  of  those 
who  have  long  slept  upon  their  rights  and  who  after  years  of 
inertia  conveying  an  assurance  of  acquiescence  in  a  given  state  of 
things  suddenly  wake  up  at  the  welcome  vision  of  an  unexpected 
advantage  and  invoke  the  aid  of  the  courts  for  relief  under  the 
operation  of  a  newly  discovered  technical  error  in  some  ancient 
transaction  or  settlement."  ' 

§  157.  Same  Subject— Rules.  This  subject  is  of  so  much  im- 
portance as  to  appear  to  warrant  a  somewhat  full  exposition  of  the 
different  statements  of  the  rule  which  governs  it. 

Thus  it  was  said  by  a  distinguished  judge,  "We  suppose 
acquiescence  or  tacit  assent  to  mean  the  neglect  to  promptly  and 
actively  condemn  the  unauthorized  act,  and  to  seek  judicial 
redress  after  the  knowledge  of  the  committal  of  it,  whereby  in- 
nocent third  parties  may  have  been  led  to  put  themselves  in  a 
position  from  which  they  cannot  be  taken  without  loss.  It  is  the 
doctrine  of  equitable  estoppel."  ' 

And  by  another,  "  The  rule  as  to  what  amounts  to  ratification 
of  an  unauthorized  act  is  elementary  and  may  be  safely  stated 
thus :  AVhere  a  person  assumes  in  good  faith  to  act  as  agent  for 
another  in  any  given  transaction,  but  acts  without  r.uthority, 
whether  the  relation  of  principal  and  agent  does  or  does  not  exist 
between  them,  the  person  in  whose  behalf  the  act  was  done,  upon 

Mining  Co.  c.  Rocky  Mt.  Nat.   Bank,  Connett    v.    Chicago,    114    111.  233; 

2  Col.  565;  Law  v.  Cross,  1  Black  (U.  Booth  v.  Wiley.  102  111,  84;  Johnston 

S.)  533;  Norrisu.  Cook.l  Curt.  (U.  S.  v.  Wingate,  29   Me.    404;  Farwell  v. 

C. C.)  464;  Abbe  «.Ilood,6  McLean  (U.  Howard,  26  Iowa,  381;  International 

S.  C.  C.)  106;  Brigham  ^.Peters.l  Gray  Bank  v.  Ferris,  118  111,  465. 

CMass.)  139;Lorie  v.  North  Chicago  'McDermid  v.    Cotton,  2  111.  App. 

City  Ry.  Co.,  32  Fed.  Rep.  270;  Bray  297;  Philadelphia,   &c.    R.  R.  Co.  v. 

V.  Gunn.  53  Ga.  144;  Oliver  v.  John-  Cowell,    28    Penn.    St.   32'J,  70  Am. 

son,  24  La.  Ann.  400;  Reese  v.  Med-  Dec.  12S;  Reese  v.  Medlock,  suiyra. 

lock,  27  Tex.  120;   84  Am.  Dec.  611;  sLafitte  v.  Godchaux,  35  La.  Ann. 

Clay   t.    Spratt   7  Bush   (Ky.)    334;  1161, 

Cooper  B.  Schwartz,  40  Wis.  54;  Hep-  sFolger,  J.,  in  Kent  ^.  Quicksilver 

burn  V.  Dunlop,  1  Wheat.  (U.  S.)179;  Mining  Co.,  78  N  Y.  137. 

102 


Chap,  v.]  KATIFIOATION.  §  159. 

being  fully  informed  thereof,  must  within  a  reasonable  time  dis- 
affirm such  act,  at  least  in  cases  where  his  silence  might  operate 
to  the  prejudice  of  innocent  parties,  or  he  will  be  held  to  have 
ratified  such  unauthorized  act."' 

And  again,  "The  correct  rule  seems  to  be  that  when  the  prin- 
cipal has  full  knowledge  of  the  acts  of  his  agent  from  which  he 
receives  a  direct  benefit  he  must  dissent  and  give  notice  of  his 
non-concurrence  within  a  reasonable  time,  or  his  assent  and  rati- 
fication will  be  presumed."  * 

§  158.  Same  Hule  applies  to  private  Corporations.  And,  as 
has  been  seen,  these  rules  apply  as  well  to  corporations  within 
the  scope  of  their  corporate  powers  as  to  individuals.' 

"  It  seems  to  be  now  well  settled,"  says  Chief  Justice  Shaw, 
"since  the  great  multiplication  of  corporations,  extending  to 
almost  all  the  concerns  of  business,  that  trading  corporations, 
whose  dealings  embrace  all  transactions  from  the  largest  to  the 
minutest  and  affect  almost  every  individual  in  the  community, 
are  affected  like  private  persons  with  obligations  arising  from 
implications  of  law,  and  from  equitable  duties  which  imply  obli- 
gations ;  with  constructive  notice,  implied  assent,  tacit  acquies- 
cence, ratifications  from  acts  and  from  silence,  and  from  their 
acting  upon  contracts  made  by  those  professing  to  be  their 
agents  ;  and  generally  by  those  legal  and  equitable  considerations 
which  affect  the  rights  of  natural  persons,"  * 

§  159.  And  to  Mimicipal  and  Quasi  Municipal  Corporations. 
The  same  rules  apply  also  to  municipal  and  quasi  municipal  cor- 
porations, although  from  their  nature,  a  ratification  by  acquies- 

'  Lyon,  J.,  in  Saveland  v.  Green,  40  "  The  law  is  well  settled  that  a  prin- 

Wis.  431;    cited  with  approval,  ex-  cipal  who  neglects  promptl}'  to  dis- 

cept  as  to  the  element  of  good  faith,  avow  an  act  of  his  agent  by  which 

in  Heyn  v.  O'Hagen.  60  Mich.,  at  p.  the  latter  has  transcended  his  author- 

157.  ity,  makes  the  act  his  own;  and  the 

2  Mobile  &  Montgomery  Ry  Co.  v.  maxim  which  makes  ratification 
Jay,  65  Ala.  113,  modifying  Powell's  equivalent  to  a  precedent  authority, 
Admr.  t.  Henry,  27  Ala.  613.  is  as  much  predicable  of  ratification 

3  Sheldon  Hat  Blocking  Co.  c.Eicke-  by  a  corporation  as  it  is  of  ratification 
meyer  Hat  Blocking  Co.,  90  N.  Y.  by  any  other  principal,  and  it  is  equal- 
607;  Kelsey«.  National  Bank  of  Craw-  ly  to  be  presumed  from  the  absence 
ford  Co.,  69  Penn.  St.  426.  of  dissent."    Williams,  J.,  in  Kel- 

♦Melledge  v.    Boston  Iron   Co.,  5      sey  ®.  National  Bank,  «Mpra. 
Cush.  (Mass.)  158,  51  Am.  Dec.  59. 

103 


I  160.  THE   LAW   OF   AGENOT.  [Book  I. 

cence  is  not  so  readily  to  be  inferred  as  in  the  case  of  individuals 
or  of  private  corporations.  The  numbers  composing  the  munici- 
pal corporation  being  large  and  their  direct  participation  in 
municipal  affairs  being  less,  the  evidence  of  ratification,  where  it 
is  based  upon  acquiescence,  must  manifestly  be  sufiicient  to  show 
the  approval  of  the  corporation  as  such.  It  cannot  be  based 
alone  upon  the  acquiescence  of  unofficial  individuals  who  have 
no  authority  to  act  for  or  bind  the  entire  body.* 

§  160.  How  when  assumed  Agent  is  a  mere  Stranger.  While 
it  is  abundantly  settled  that  acquiescence  may  result  in  the  rati- 
fication of  the  act  of  an  agent,  it  has  been  much  questioned 
whether  the  same  result  would  follow  if  the  person  assuming  to 
act  for  the  other  was  a  stranger.  All  of  the  authorities  agree  that 
the  relations  of  the  parties  have  much  to  do  in  determining 
whether  or  not  there  has  been  a  ratification,  but  it  is  held  by  sev- 
eral of  the  courts  that  when  he  who  assumes  to  act  for  another  is 
not  one  sustaining  to  him  the  relation  of  an  agent  but  is  a  inere 
volunteer,  no  duty  exists  on  the  part  of  the  other  to  repudiate 
the  act  on  its  being  brought  to  his  notice,  and  that  nothing  short 
of  a  positive  afiirmance  will  make  it  binding  upon  him.  Thus 
it  is  said  in  an  Illinois  case,  "  In  general  where  an  agent  is  au- 
thorized to  do  an  act  and  he  transcends  his  authority,  it  is  the 
duty  of  the  principal  to  repudiate  the  act  as  soon  as  he  is  fully 
informed  of  what  has  been  thus  done  in  his  name  by  the  agent, 
else  he  will  be  bound  by  the  act  as  having  ratified  it  by  implica- 
tion ;  but  where  a  stranger,  in  the  name  of  another,  does  an  un- 
authorized act,  the  latter  need  take  no  notice  of  it,  although 
informed  of  the  act  thus  done  in  his  name,  and  he  shall  only  be 
hound  by  an  affirmative  ratification."  *  And  this  view  is  supported 
by  eminent  judges  and  text  writers.' 

But  the  contrary  view  is  also  maintained  by  judges  of  great 
ability.  Thus  it  is  said  by  Woodward,  J.,  "I  do  not  understand 
counsel  to  mean  that  there  can  be  no  valid  ratification  unless  one 

'School  District*,  ^tna  Ins.  Co.,  «  Ward  v.  Williams,  28  111.  447.  79 

62  Me.  330;  Chamberlain  v.  Dover,  13  Am.  Dec.  385,  approved  in   Searing 

Me.  466,  29  Am.  Dec.  517;  Davis  v.  v.  Butler.  69  111.  575. 

School  District,  24  Me.  349;  White  v.  '  Evans'  Agency,   68;  Livermore's 

Sanders,  32  Me.  188;  Fisher  v.  School  Agency,  §§255,  258  ;  Duer,  Vol.  II, 

District,  4  Cush.  (Mass.)  494;  Bliss  v.  151-154. 
Clark,  16  Gray  (Mass.)  60. 

104: 


Chap,  v.]  RATIFICATION.  §  160. 

of  the  conditions  specified — either  prior  agency  or  possession  of 
principal's  property — has  existed,  but  that  silence,  after  knowl- 
edge of  the  act  done,  is  evidence  of  ratification  only  in  such 
cases.  It  must  be  admitted  that  the  act  of  a  mere  stranger  or 
volunteer  is  capable  of  ratification,  for  all  the  authorities  are  so; 
but  the  argument  is  that  the  silence  of  the  party  to  be  affected, 
whatever  the  attending  circumstances,  cannot  amount  to  ratifica- 
tion of  the  act  of  a  stranger.  ♦***!£  ^i^g^  ^jjg  principle 
of  law  be  that  I  can  ratify  that  only  which  is  done  in  my  name, 
but  when  I  have  ratified  whatever  is  done  in  my  name,  I  am 
bound  for  it,  as  by  the  act  of  an  authorized  agent,  it  is  apparent 
that  my  silence  in  view  of  what  has  been  done,  is  to  be  regarded 
simply  as  evidence  of  ratification  more  or  less  expressive,  accord- 
ing to  the  circumstances  in  which  it  occurs.  It  is  not  ratification 
of  itself  but  only  evidence  of  it,  to  go  to  the  jury  along  with  all 
the  circumstances  that  stand  in  immediate  connection  with  it. 
Among  these  the  prior  relations  of  the  parties  are  very  import- 
ant. If  the  party  to  be  charged  has  been  accustomed  to  contract 
through  the  agency  of  the  individual  assuming  to  act  for  him, 
or  has  intrusted  property  in  his  keeping,  or  if  he  were  a  child  or 
servant,  partner  or  factor,  the  relation  conjunctionis  favor  would 
make  silence  strong  evidence  of  assent.  On  the  other  hand,  if 
there  had  been  no  former  agency  and  no  peculiarity  whatever  in 
the  prior  relations  of  the  parties,  silence, — a  refusal  to  respond  to 
mere  impertinent  interference, — would  be  very  inconclusive  but 
not  an  absolutely  irrelevant  circumstance.  The  man  who  will 
not  speak  when  he  sees  his  interests  affected  by  another  must  be 
content  to  let  a  jury  interpret  his  silence.  It  is  a  clear  principle 
of  equity  that  where  a  man  stands  by  knowingly  and  suffers  an- 
other person  to  do  acts  in  his  own  name  without  any  opposition  or 
objection,  he  is  presumed  to  have  given  authority  to  do  those 
acts.  *  *  *  *  If  mental  assent  may  be  inferred  from  cir- 
cumstances, silence  may  indicate  it  as  well  as  words  or  deeds.  To 
say  that  silence  is  no  evidence  of  it  is  to  say  that  there  can  be  no 
implied  ratification  of  an  unauthorized  act — or  at  the  least  to  tie 
up  the  possibility  of  ratification  to  the  accident  of  prior  relations. 
Neither  reason  nor  authority  justifies  such  a  conclusion.  A  man 
who  sees  what  has  been  done  in  his  name  and  for  his  benefit, 
even  by  an  intermeddler,  has  the  same  power  to  ratify  and  con- 
firm it  that  he  would  have  to  make  a  similar  contract  for  himself 

105 


§  161.  THE    LAW    OF    AGENCY.  [Book  I. 

and  if  the  power  to  ratify  be  conceded  to  him  the  fact  of  ratifi- 
cation must  be  provable  by  the  ordinary  means."  ' 

§  161.  Same  Subject— True  Eule.  Keeping  in  mind  that  the 
question  in  these  cases  is,  not  whether  the  silence  is  of  itself  a 
ratification,  but  whether  it  is  any  evidence  from  which,  in  con- 
nection with  other  facts,  a  ratification  may  be  inferred,  it  is 
undoubtedly  the  better  rule  that  while  the  relations  of  the  par- 
ties are  very  significant  they  are  not  conclusive,  and  that  even  in 
the  case  of  a  mere  stranger  a  ratification  may  be  established  by 
the  same  kind  of  evidence  that  is  admissible  in  other  cases,  al- 
though the  presumptions  arising  from  acquiescence  are  much 
stronger  in  a  case  where  an  agency  exists  than  in  the  case  of  a 
stranger.* 

ft  162.  Silence  does  not  ratify  if  Stranger  acts  in  his  own 
Name.  Where,  however,  the  stranger  does  not  assume  to  act  in 
the  behalf  of  the  alleged  principal  but  in  his  own  name  and  be- 
half, the  silence  of  the  alleged  principal  will  not  be  evidence  of 
a  ratification  of  the  stranger's  act.' 

8  163.  Information  from  Letter.  Though  omitting  to  answer 
a  written  communication  is  in  general  no  evidence  of  the  truth 
of  the  facts  therein  stated,*  yet  the  information  as  to  the  acts  of 

>  Philadelphia,  &c.    R.  R.   Co.  v.  the  person  giving  credit  to,  and  rely- 

Cowell,  28  Penn.   St.,  329,  70  Am.  ing  upon,  such  assumed  agency,  or 

Dec.  128.  to  induce  him  to  believe  such  agency 

«  Union  Gold  Mining  Co.  v.  Rocky  did  in  fact  exist,    and  to  act  upon 

Mt.  Nat.  Bank,  2  Col.  248;  Ladd  v.  such  belief   to    his    detriment,  then 

Hildebrant,  27  Wis.  135,  9  Am .  Rep.  such    silence    or    inaction     may    be 

445;  Saveland  v.  Green,  40  Wis.  431;  considered   as    a  ratification   of    the 

Southern  Ex.  Co.  v.  Palmer,  48  Ga.  agency."     See  also  Hurley©.  Watson, 

85;    Greenfield    Bank  v.    Crafts,    4  —Mich.— ,13West,  Rep.543;  Carson «. 

Allen   (Mass.)  447;  Heyn  c.    Hagen.  Cummings,  69  Mo.  325. 

60  Mich.  150.     In   this  case   Cham-  »  Hamlin  v.  Sears,  82  N.    Y.    827; 

PLiN,  J.  says:      "Whether   silence  Garvey  ^.  Jarvis.  46  N.Y.  310,7  Am. 

operates    as    presumptive    proof  of  Rep.  335. 

ratification  of  the  act  of  a  mere  vol-  *  Commonwealth  v.  Eastman,  1 
unteer,  must  depend  upon  the  pecu-  Cush.  (Mass.)  189;  Fearing  v.  Kim- 
liar  circumstances  of  the  case.  If  ball,  4  Allen  (Mass.)  125;  Learned  v. 
those  circumstances  are  such  that  the  Tillotson,  97  N.  Y,  1 ;  Canadian 
inaction  or  silence  of  the  party  Bank  of  Commerce  v.  Coumbe,  47 
sought  to  be  charged  as  principal  Mich.  358.  None  of  these  being  a 
■would  be  likely  to  cause  injury  to  case  of  agency. 

106 


Chap,  v.]  EATIFIOATION.  §  164. 

the  assumed  agent  may  be  imparted  to  the  principal  by  letter  as 
well  as  by  any  other  means.' 

§164.  Ratification  by  Acquiescence— Illustrations.  Thecasei 
in  which  this  principle  has  been  applied  are  very  numerous,  but 
a  few  of  them  are  given  here  as  illustrations  of  its  nature  and 
effect.  Thus  where  one  in  the  presence  of  the  principal  sold  the 
goods  of  the  principal  as  his  agent  without  objection,  the  tacit 
consent  of  the  principal  was  presumed.'  And  where  a  sou  with- 
out authority  exchanged  his  father's  horse  for  another  with  a 
near  neighbor  and  the  father,  although  he  saw  th&  neighbor  fre- 
quently, kept  the  horse  so  acquired  and  used  it  as  his  own  for 
about  three  months  without  expressing  any  dissent,  it  was  held 
that  a  ratification  of  the  exchange  must  be  presumed."  And  so 
where  a  son  assuming  to  act  for  his  father,  but  without  authority, 
sold  a  half  interest  in  his  father's  mowing  and  reaping  machine, 
and  for  two  years  thereafter  the  father  and  the  purchaser  used 
and  kept  the  machine  in  repair  as  joint  owners,  it  was  held  that 
the  father  could  not  complain  that  tlie  sale  was  unauthorized.* 
Again,  where  an  agent  without  authority  sold  the  land  of  the 
principal  to  the  knowledge  of  the  latter,  who  made  no  objections 
for  more  than  four  years,  during  which  time  the  purchaser  had 
been  occupying  and  improving  the  land,  the  principal  was  held 
to  have  acquiesced  in  the  sale.*  So  where  a  railroad  company 
used  and  partly  paid  for  a  quantity  of  material  purchased  b}'  one 
assuming  to  be  its  agent,  the  purchase  was  held  to  be  ratified  ;• 
and  under  like  circumstances  it  was  held  that  knowledge  of  the 
purchase  on  the  part  of  the  company  would  be  presumed.'  And 
where  the  president  of  a  railroad  company,  without  authority, 
made  a  sale  of  property  belonging  to  the  company,  in  part  pay- 
ment of  a  debt  owed  by  it,  and  the  fact  of  the  sale  was  commu- 
nicated to  the  board  of  directors  and  talked  over  publicly  at  one 

'Foster    «.    Rockwell,    104  Mass.  « Owsley  r.Woolhopter,  14  Ga.  124; 

167;  Cooper    «.    Schwartz,   40  Wis.  Gillinger  v.  Lake  Shore  Traffic  Co.  67 

54;  Ruffner  v.  Hewitt,  7  W.  Va.  585.  Wis.  529. 

See    also   Searing  v.   Butler,  69  111.  ^  Hall  v.  Harper,  17  111.  83. 

575;  Ward  «.  Williams,   26   III  447,  <  Swart wout  c.  Evans,  37  111.  442. 

79  Am.  Dec.  385;  Kehlor  v.  Kemble,  "Alexander  v.  Jones,  64  Iowa,  207. 

26  La.  Ann.  713;  Pittsburgh.  «&c.  R.  'Evans  v.  Chicago,  &c.  R.  R  Co. 

R.   Co.   r.   Woolley,  12  Bush.    (Ky.)  26  111.  189. 

451;   Jennison  v.    Parker,    7    Mich.  t Scott©.  Middletown,  &c.  Ry,  86 

355.  N.  Y.  200. 

107 


§  165.  THE    LAW    OF    AGENCY.  [Bcok  I. 

of  their  meetings,  but  they  did  nothing  to  disafRrra  it,  it  was 
held  to  be  ratified.'  Other  cases  involving  the  same  principle 
are  cited  in  the  note,"  and  it  may  be  said  generally  that  ratifica- 
tion will  be  presumed  whenever  the  acts  of  the  principal  are  in- 
consistent with  any  other  hypothesis.' 

§  165.  Rule  applies  only  to  Principals.  The  doctrine  of  rat- 
ification by  aquiescence  applies  only  to  the  principals  in  the  tran- 
saction, and  cannot  therefore  operate  to  effect  a  ratification  upon 
the  ground  of  the  acquiescence  of  one  of  two  joint  agents  in  the 
acts  of  his  coagent.* 

VI. 

THE   RESULTS    OF   RATIFICATION. 

§  166.  What  for  this  Subdivision.  Having  thus  considered 
the  preliminary  questions,  it  remains  to  determine  what  are  the 
results  of  a  ratification  made  in  conformity  to  the  rules  hereto- 
fore laid  down.  It  is  obvious  that  there  are  several  parties  whose 
rights  and  obligations  may  be  affected  by  a  ratification,  and  we 
shall  consider  the  question, — I.  In  general.  11.  As  between 
principal  and  agent.  III.  As  between  the  principal  and  the 
other  party.     IV.  As  between  the  agent  and  the  other  party. 

1.     In  General. 

§  167.  Equivalent  to  precedent  Authority.  By  ratifying  the 
unauthorized  act  the  principal  assumes  and  adopts  it  as  his  own, 
and  as  has  been  seen,'  this  adoption  extends  to  the  whole  of  the 
act, — it  goes  back  to  its  inception  and  continues  to  its  legitimate 
end.  Subject  therefore  to  an  exception  to  be  immediately  no- 
ticed, it  is  the  universal  rule  that  as  against  the  principal  the  rati- 

» Walworth  County  Bank  «.  Farm-  51  Misa.  21,  24  Am.  Rep.  617;  Haw- 

ers,  &c  Co.  16  Wis.  639.  kins  u.  Lange,  22  Mian.  557:  Johnston 

« Williams  v.    Merritt,   23  111.623;  «.  Berry,  3  111.    App.    253;   Marsh  «. 

Bogel  D.  Teutonia  Bank.  28  La.  Ann.  Whitmore,  21  Wall.  (U.  S.)  178;  Hoyt 

95;3;  Matthews  B.  Fuller,    123  Mass.  ©.Thompson,  19  N  Y.  218;  Law  v. 

448;  Marshall?).  Williams,  2  Biss.  (U.  Cros*.  1  Black  (U.  S.)  533. 

S  C.  C.)   255;    Hanks  v.    Drake,  49  'Maddux  c.    Bevan,    39   Md.  488; 

Barb  (N.  Y.)  186;  Maddux  ?>.  Bevan,  Scott  t).  Methodist  Church,  50  Mich. 

39  Md.  485;  Farwdl  «.    Howard,  26  528. 

Iowa,  381;  Pittsburgh*.  Woolley,  12  «Penn«.  Evans,  28   La.   Ann.  J76. 

Bu«h  (Ky.)  451    Lafitte  v.  Godchaux,  See  ante,  %  121. 

35  La.  Ann.  1161;  Meyer  ».  Morgan,  *  Ante,  §  130. 

108 


Chap.  Y.]  EATIFICATION.  §  167. 

fication  is  retroactive  and  equivalent  to  a  prior  authority,'  or  to 
use  the  lanojuage  of  a  distinguished  writer  and  judge,  "  No  maxim 
is  better  settled  in  reason  and  law  than  the  maxim  omnis  rati- 
hahitio  retrotrahitur,  et  mandato  priori  equiparatur^  at  all 
events  where  it  does  not  prejudice  the  rights  of  strangers."  " 

"The   ratification  operates  upon   the  act  ratified  precisely  as 
though  the  authority  to  do  the  act  had  been  previously  given 
except  where  the  rights  of  third  parties  have  intervened  between 
the  act  and  the  ratification."'     And  this  rule  applies  as  well  to 
corporations  as  to  individuals.* 

It  has  been  seen  also,  that  the  principal  cannot  avail  himself  of 
the  benefits  of  the  act  and  repudiate  its  obligations.*  Having 
with  full  knowledge  of  all  the  material  facts  ratified,  either  ex- 
pressly or  impliedly,  the  act  assumed  to  be  done  in  his  behalf,  he 
thenceforward  stands  responsible  for  the  whole  of  it  to  the  full 
extent  to  which  the  agent  assumed  to  act,  and  he  must  abide  bv 
it  whether  the  act  be  a  contract  or  a  tort,^  and  whether  it  results 
to  his  advantage  or  detriment.' 

But,  as  will  be  seen  in  a  following  section,  a  principal,  not 
himself  bound  by  the  agent's  act  or  contract,  will  not,  by  mere 
ratification  alone,  and  while  the  contract  remains  executory,  be 
able  to  build  up  aflirmative  rights  against  the  other  party.' 

»Fleckner«.  Bankof  U.S,,8  Wheat.  Rep.  490;  Mclntyre  v.  Park,  11  Gray 

(U.   S.)  388;  Cook  v.  Tullis,  18  Wall.  (Mass.)  103,  71  Am.  Dec.  690;  Louis- 

(U.  S.)333;  Despatch  lAnev.  Bellamy  ville,  &c.  Ry.  Co.  c.  McVay,  98  Ind. 

Mfg.  Co., 13  N.  H.  305,  37  Am.  Dec.  391,  49  Am.  Rep.  770. 

203;  Clealand  v.  Walker,  11  Ala.  1058,  s  Story,   J.   in  Fleckner  t».  Bank, 

46  Am.    Dec.    238;  McMahaa  v.  Mc-  supra. 

Mahan,  13  Ptnn.  St.  376,  53  Am.  Dec.  3  Field,  J.  in  Cook  v.  Tullis,  atipra. 

481;   Pearsons  v.    McKibben,  5  Ind.  <  Planters'   Bank   v.  Sharp,  supra; 

201,  61   Am.    Dec.   85;  Wood  v.  Mc-  Despatch  Line  v.  Bellamy  Mfg.  Co. 

Cain,  7  Ala.   800,   43  Am.  Dec.  612;  supra;   Leggett  v.  N.    J.    Mfg.    and 

Planterfl'Bank  v.   Sharp,  4  Smedes  «fe  Banking  Co.  1  Saxt.  Ch.  (N.  J.)  541, 

M.    (Miss.)    75.    43    Am.    Dec.  470;  23  Am.  Dec.  738;  Frankfort  S.  T.  Co. 

Starks  v.  Sikes,  8  Gray  (Mass.)  609,  v.  Churchill,   6  T.    B.  Monroe  (Ky.) 

69  Am.  Dec  270;  Goss  ».  Stevens,  33  437.  17    Am.    Dec.    159;  Everett    v. 

Minn.  4T3;  United  States  Express  Co.  United  States.  6  Port.  (Ala,)  166;   30 

«.  Rawsou,  106  Ind.   215;   Bronson  v.  Am.  Dec.  584. 

Chappell.  12  Wall   (U.  S.)  681;  Law-  ^  Ante,  %rSO. 

rence  v.  Taylor.  5   Hill   (N.  Y  )   107;  •  Cooley  on  Torts.  127. 

Lowry  v.  Harris,  13  Minn.  355;  Han-  'Wood  v.  McCain,  and  cases  cited 

kins  V.   B.iker,    46  N.  Y.  6G6;  Ham-  in  note  3  above. 

mond  V.  Hannin,  21  Mich.  374,  4  Am.  »  See  post,  §  179. 

109 


§  168.  THE    LAW    OF    AGENCY.  [Boolc  I. 

§  168.  Cannot  affect  intervening  Rights.  Until  ratification 
the  principal  has  not  been  a  party  to  the  transaction.  Although 
done  in  his  name,  the  act  had  no  binding  force  as  to  him  until  he 
sanctioned  it.  And  although  in  ordinary  cases  the  ratification 
extends  back  to  the  beginning  and  operates  upon  all  that  has 
since  been  done,  yet  it  is  obviously  just  and  reasonable  that  where 
prior  to  his  ratification, — before  he  has  given  his  sanction, — third 
j^ersons  have  in  good  faith  acquired  such  substantial  rights  or 
have  been  placed  in  such  position  in  reference  to  the  same  tran- 
saction that  they  will  be  prejudiced  by  such  retroactive  effect, 
the  ratification  should  not  be  allowed  to  overreach  and  defeat 
those  rights.  And  such  is  the  rule  of  law.  The  intervening 
rights  of  third  persons  cannot  be  defeated  by  the  ratification. 
If  prior  to  the  ratification  the  principal  has  put  it  out  of  his 
power  to  perform  the  contract  ratified,  by  conveying  the  subject- 
matter  thereof  to  a  third  person  who  took  the  same  in  good 
faith,'  or  if  third  parties  have  in  good  faith  acquired  an  estate, 
or  interest  in,  or  a  lien  or  claim  upon  the  subject-matter  by  at- 
tachment,' judgment  or  otherwise,  these  rights  cannot  be  cut  off 
at  the  mere  volition  of  the  principal.*  Nor  will  the  principal 
by  ratifying  be  permitted  to  impose  substantial  duties  or  obliga- 
tions upon  third  persons  which  would  not  exist  if  ratification  had 
not  taken  place. 

§  169.  Ratification  irrevocable.  As  has  been  seen,  the  prin- 
cipal upon  being  fully  informed  of  the  unauthorized  act  of  one 
assuming  to  be  his  agent  has  the  right  to  elect  whether  he  will 
ratify  such  act  or  not ;  bat  when  he  has  once  exercised  this  right 
the  election  is  final.  If  therefore  he  adopts  the  act,  even  for  a 
moment,  he  adopts  it  forever,  and  he  will  not  be  allowed,  at  least 
where  the  rights  of  other  parties  may  be  affected  thereby,  to 
revoke  his  ratification.* 

» McCracken  B.  City  of  San  Fran-  Case,  4  Ct.    of   CI.   511;  Pollock  v. 

ciHco,  16  Cal.  634.  Cohen,  32  Ohio  St.  514. 

«Wood  V.   McCain,  7  Ala.  800,  42  *  Jones  v.    Atkinson,    68  Ala.  167; 

Am.  Dec.  612;  Taylor  v.  Robinson,  14  Smith  v.  Cologan.  2  T.  R.  189;  Clarke 

Cal.  396.  e.  Van  Reimsdyk,  9  Cranch  (U.  S.  C. 

8  Cook  V.  Tullis,    18  Wall.  (U.  S)  C.)  153;   Hazelton  v.  Batchelder,  44, 

333;  McMahan  v.  McMahan,  13  Penn.  N.  Y.  40;  Brock  v.  Jones,  16  Tex.  461; 

St.  376,  53  Am.  Dec.  481 ;  Stoddard's  Beall  v.  January,  63  Mo.  434. 

110 


Chap.  Y.]  KATIFICATION.  §  171. 

2.     As  between  Principal  and  Agent. 

§  170.  In  general.  The  general  result  of  a  ratification  has 
already  been  stated.  It  is  now  to  be  considered  what  special 
results  ensue  affecting  the  mutual  rights  and  obligations  of  the 
principal  and  the  agent.  It  will  readily  be  seen  that  these  results 
are  of  great  consequence  to  the  agent.  Whether  he  was  an  agent 
who  had  exceeded  the  authority  conferred  upon  him,  or  whether 
he  was  a  mere  stranger  with  no  semblance  of  authority  at  all,  his 
acts  were  not  binding  upon  the  assumed  principal.  He  had  un- 
dertaken to  act  for  another  from  whom  he  had  no  authority  at 
all,  or  with  authorit}'  insufficient  to  justify  the  act  assumed  to  be 
done,  and  he  would  himself  be  liable  either  to  the  parties  to 
whom  he  had  failed  to  bind  the  principal,  or  to  that  principal  for 
damages  occasioned  by  exceeding  the  authority  with  which  he 
was  invested.  From  this  dilemma,  however,  the  ratification 
relieves  him.  Thenceforward  the  principal  assumes  the  respon- 
sibility of  the  transaction  with  all  of  its  advantages  and  all  of  its 
burdens. 

§  171.  The  general  Bule  therefore  is  that  by  such  ratifica- 
tion the  principal  absolves  the  agent  from  all  responsibility  for 
loss  or  damage  growing  out  of  the  unauthorized  transaction.* 
Here,  as  in  other  cases,  the  ratification  must  have  been  made 
with  full  knowledge  of  all  the  material  facts,  and  if  the  agent 
has  kept  back  or  suppressed  any  such  facts,  the  ratification  of 
the  principal  made  in  ignorance  of  them  is  no  defense  to  the 
agent.*  And  even  if  the  agent  communicate  to  his  principal  all 
the  facts  known  to  him  at  the  time,  but  if  afterwards  it  turns  out 
that  the  facts  so  communicated  were  not  the  real  facts  of  the 

*  Hoffman  v.  Livingston,  46  N.  Y.  Clark,  5  Denio  (N.  Y.)  503;  Skinner 

Super.    Ct.    552;  Courcier  t».    Ritter,  v.  Dayton,  19  Johns.  (N.  Y.)  513,  10 

4Wash.  C.  C.  549;   Caimes  b.  Bleeck-  Am.    Dec.    286;    Bray    v.    Gunn,  53 

er,  12  Johns.  (N.  Y.)  800;  Pickett  v.  Ga.    144;    Foster  v.    Rockwell,     104 

Pearsons,17Vt.  470;  Hanks  ®.  Drake,  Mass.    172;    Clay    v.  Spratt.  7  Bush 

49  Barb.  (N.  Y.)  202;  Vianna  v.  Bar-  (Ky.)  335;  Bank  of  St.  Mary's  v.  Cal- 

clay,   3  Cow.  (N.  Y.)  283;  Towle  c.  der,  3  Strob.  (S.  C.)   403;   iEtna  lua. 

Stevenson,  1  Johns.  (N.  Y.)  Cas.  110;  Co.  v.  Sabine,  6  McLean  (U.  S.  C.  C.) 

Ward  V.   Warfleld,  3  La.   Ann.  471;  393. 

Flower  v.  Downs.  6  Id.  538;  Oliver  v.  *Bell  v.  Cunningham,  3  Pet.  (U.  S.) 

Johnson,  24 /d.  460;  Hazard c.  Spears,  69,  and    cases    last    cited;   Bank  of 

4  Keyea  (N.  Y.)  485;  Woodward    v,  Owensboro    v.    Western    Bank,     13 

Suydam,    11    Ohio,    360;    Green    v.  Bush.  (Ky.)  526,  26  Am.  Rep.  211. 

Ill 


§  172.  THE    LAW    OF    AGENCY.  [Book  1. 

case,  the  agent  is  not  relieved  by  a  ratification  made  under  such 
a  misapprehension,*  although  the  facts  and  circumstances  may 
have  been  innocently  concealed  or  inadvertently  misrepresented.* 
Id  such  a  case  the  assumed  condition  is  not  that  claimed  to  have 
been  ratified. 

§  172.  Agent's  Motives  unimportant.  The  motives  of  the 
agent  in  the  transaction  are  of  no  importance.  If  he  has 
deviated  from  his  duty  he  becomes  liable  to  his  principal  for 
such  losses  as  are  the  direct  and  natural  consequences  of  such 
deviation,  whether  his  motives  were  good  or  bad ;  and  he  is 
only  released  from  such  liability  where  the  principal  with  full 
knowledge  of  all  the  material  facts  ratifies  such  departure  from 
hi«  duty.* 

§  173.  EflTorts  to  avoid  Loss,  no  Batification.  The  mere 
eSort  of  the  principal,  having  knowledge  of  the  agent's  devia- 
tion from  his  instructions,  to  avoid  loss  therel)y  or  to  make  the 
loss  as  small  as  possible,  will  not  constitute  such  a  ratification  as 
will  release  the  agent.  Thus  where  an  agent  for  the  collection 
and  transmission  of  a  sum  of  money,  who  was  given  specific  in- 
structions by  his  principal  to  remit  it  by  express,  purchased  a 
check  drawn  by  parties  then  in  good  standing  and  credit  in  New 
York  and  sent  the  same  to  his  pi'incipal  who  forwarded  it  to  New 
York  for  collection,  but  before  it  was  cashed  the  drawers  had  be- 
come insolvent  and  the  check  was  dishonored,  it  was  held  that 
the  agent  having  violated  his  instructions  in  regard  to  the  mode 
of  sending  the  money  was  liable  to  the  principal  for  the  loss  sus- 
tained, and  that  the  sending  of  the  check  to  New  York  for  col- 
lection was  not  an  absolute  ratification  of  the  act  of  the  agent  in 
transmitting  the  money  in  that  way.* 

§  174.  Ratification  must  be  in  toto.  Here  also  applies  the 
rule  of  a  ratification  in  toto.  If  the  principal  adopts  a  portion 
of  the  agent's  act  he  adopts  the  whole  of  it,  and  therefore  re- 
lieves the  agent  from  all  responsibility.  Hence  if  the  agent  lias 
incurred  expenses  in  departing  from  his  authority  and  the  prin- 

*  Bank  of  Owensboro  e.  Western  »Bank  of  Owensbori  v.  Western 

Bank,  mpra.  Bank,  supra. 

» Vincent  ».  Rather,  81  Tex.  77,  98  ♦Walker*.  Walker,  6  Hei8k.(Tenn.) 
Am.  Dec.  518.  425. 

112 


Chap.  Y.]  EATIFIOATION.  §  1T9. 

cipal  afterwards  ratify  such  departure,  the  agent  is  entitled  to  be 
reimbursed  for  the  expenses  so  incurred.' 

§  175.  Katiflcation  of  Appointment  of  Subagent.  So  if  the 
agent  without  authority  has  employed  a  subagent,  the  ratifica- 
tion will  embrace  the  appointment  and  acts  of  the  subagent." 

§  176.  Ratification  of  Torts  does  not  discharge  Agent's  Lia- 
bility to  third  Persons.  But  as  will  be  seen  hereafter,  the  rati- 
fication by  the  principal  of  a  tort  committed  by  the  agent  does 
not  relieve  the  agent  from  liability  to  third  persons.* 

§  177.  Acts  of  Ratification  liberally  construed.  The  conduct 
of  the  principal  will  be  liberally  construed  in  favor  of  the  agent 
in  effecting  a  ratification.* 

3.     As  between  Principal  and  the  other  Party. 

§  178.  a.  Other  Party  against  Principal.  As  soon  as  the  un- 
authorized act  is  ratified,  he  who  before  was  only  nominally  a 
party  to  the  transaction,  becomes  in  reality  the  party  responsible. 
From  this  time  on,  he  is  subject  to  all  the  obligations  that  per- 
tain to  the  transaction  in  the  same  manner  and  to  the  same  extent 
that  he  would  be  had  the  act  been  done  originally  by  him  in  per- 
son, or  by  his  express  authority.  The  other  party  therefore  may 
demand  and  enforce  on  the  part  of  the  principal  the  full  per- 
formance of  the  contract  entered  into  by  his  agent.*  And  if  tlie 
act  or  contract  of  the  agent  was  tainted  or  procured  by  fraud, 
the  principal  by  ratification  assumes  responsibility  for  the  fraud.* 
It  is  unnecessary  to  cite  instances  of  this.  What  has  been  or 
may  be  hereafter  said  of  the  obligations  of  the  principal,  applies 
as  well  to  one  who  became  such  by  ratification  as  to  one  who  was 
such  by  original  agreement. 

§  179.  h.  Principal  against  the  other  Party.  Where,  how- 
ever, the  principal  attempts,  by  means  of  a  subsequent  ratifica- 
tion,  to   build  up  afiiriiiative  rights   against  the   other   party, 

•Trixione  v.  Tagliaferro,  10  M.  P.  90.  96  Am.  Dec.  383;  Flower  «.  Jones, 

C.  C.  175.  7  Martin,  (La.)  N.  S.  143. 

•Eggleston  v.  Boardman,  37  Mich.  «See  cases  cited  in  §  167,  ant«. 

14,  20;  Blantinc.Whitaker,  llHump.  •National  Life  Ins.  Co.  v.  Minch, 

(Tenn.)  313;    Sheldon  v.  Sheldon,  3  53  N.  Y.  144;  Elwell  e.  Chamberlin, 

"Wis.  699.  31  N.  Y.  611;  Smith  v.  Tracy,  36  N. 

•See  post,  %  183.  Y.  79;  Lane  v.  Black,  21  W.  Va.  617. 

« Szymanski  v.  Plassan,  20  La.  Ann. 

8  113 


§  179.  THE    LAW   OF   AGENCY.  [Book  I, 

different  considerations  apply.  As  a  rule  the  obligations  of  a 
contract  must  be  mutual, — both  parties  must  be  bound  or  neither. 
Hence  if  the  contract  made  by  the  agent  was  not  binding  upon 
the  principal  because  of  the  agent's  want  of  autliority,  the  con- 
tract lacks  this  element  of  mutuality,  and  the  principal  not  being 
bound  the  other  party  is  free  also. 

The  principal,  however,  as  has  been  seen,  may  by  his  subse- 
quent affirmance  become  bound  by  the  contract,  but  it  is  obvious 
that  unless  the  other  party  has  expressly  agreed  to  that  effect,  it 
cannot  rest  with  the  principal  alone  to  bind  the  other  part}'  also 
to  the  contract.  That  can  be  done  only  by  some  act  on  the  part 
of  the  other  party  signifying  his  present  consent  to  be  bound. 
His  attempt  to  enforce  the  contract  against  the  principal  upon 
the  basis  of  the  latters  affirmance  of  it,  or  his  acceptance  of  the 
principal's  performance  of  it,  would  be  such  an  act,  and,  as  in 
the  case  of  the  principal,  if  he  elects  to  avail  himself  of  the  ben- 
efits, he  must  also  assume  the  obligations. 

The  principal,  therefore,  when  the  other  party  thus  evinces  hia 
affirmance  of  the  contract,  is  invested  with  all  the  rights  against 
such  other  party  which  the  contract  confers,  and  may  enforce  its 
performance  in  the  same  manner  as  though  it  had  been  originally 
made  with  him  in  person.^  But  in  the  absence  of  this  affirmance 
by  the  other  party,  the  principal  cannot,  while  the  contract  re- 
mains purely  executory,  by  his  affirmance  alone,  create  obliga- 
tions in  his  behalf  against  the  other  party.' 

>  Soames  v.  Spencer,  ID.  &  R.  82;  plaintiff  to  sell,   defendant  was   not 

State  V.  Torinus,  26  Minn.  1.  bound  to  purebase.    The  court  found 

«Thu8  in    Dodge  v.    Hopkins,  14  that  the  agent's  authority  was  insudl- 

Wis.  6o0,  a  person  assuming  to  act  as  cient,  and  thereupon,  by  Dixon,  C. 

plaintiff's  agent,  had,  without  suffl-  J.,  said: — "We  are  next  to  ascertain 

cient  authority,  entered  into  a  con-  the  effect  of  this  waat  of  authority 

tract  with  defendant,  by  which  de-  upon  the  rights  of  the  defendant.     It 

fendant  agreed  to  purchase  of  plaint-  is  very  clear,  in  the  present  condition 

iff  certain    real    estate  and    to    pay  of  the  case,  that  the  plaintiff  was  not 

therefor    certain     sums    of    money,  bound  by  the  contract  and  that  he 

Plaintiff  seeking  to  enforce  the  con-  was  at  liberty  to  repudiate  it  at  any 

tract,  brought  an  action  against  the  time  before  it  had  actually  received 

defendant  to  recover  certain  install-  his    sanction.      Was    the    defendant 

ments  of  the  purchase   price   which  bound?  And  if  he  was  not,  could  the 

defendant  had  refused  to  pay.     De-  the  plaintiff  by  his  sole  act  of  ratifica- 

fendant  resisted  upon  the  ground  that  tion,   make  the   contract   obligatory 

as  the  contract,  owing  to  the  agent's  upon  him?    We  answer  both  these 

lack  of  authority,  did  not  bind  the  questions  in  the  negative.     The  cot- 


Chap,  v.] 


EATIFIOATION. 


§179. 


Thus  if  an  agent,  without  authority,  enter  into  a  contract  with 
another  by  which,  on  account  of  such  lack  of  authority  the 
alleged  principal  is  not  bound,  the  principal  cannot,  when  he 
afterwards  finds  that  the  contract  is  advantageous  to  him,  affirm 


enanta  were  mutual — those  of  the 
defendant  for  the  payment  of  money 
being  in  consideration  of  that  of  the 
plaintiff  for  the  convej'ance  of  the 
lands.  The  intention  of  the  parties 
"was  that  they  should  be  mutually 
bound  —  that  each  should  execute  the 
instrument  so  that  the  other  could  set 
it  up  as  a  binding  contract  against 
him,  at  law  as  well  as  in  equity,  from 
the  moment  of  its  execution.  In 
Buch  cases  it  is  well  settled  both  on 
principle  and  authority,  that  if  either 
party  neglects  or  refuses  to  bind  him- 
self, the  instrument  is  void  for  want 
of  mutuality,  and  the  party  who  is 
not  bound  cannot  avail  himself  of  it 
as  obligatory  upon  the  other.  Towns- 
end  V.  Corning,  23  Wend.  435,  and 
Same  c.  Hubbard,  4  Hill,  351,  and 
cases  there  cited. 

The  same  authorities  also  show  that 
where  the  instrument  is  thus  void  in 
its  inception,  no  subsequent  act  of  the 
party  who  has  neglected  to  execute  it 
can  render  it  obligatory  upon  the 
party  who  did  execute,  without  his 
assent.  The  opinion  of  Judge  Bron- 
60N  in  the  first  named  case  is  a  con- 
clusive answer  to  all  arguments  to  be 
drawn  from  the  subsequent  ratifica- 
tion of  the  party  who  was  not  origin- 
ally bound.  In  that  case  as  in  this, 
the  vendors  had  failed  to  bind  them- 
selves by  the  agreement.  He  says: 
'It  would  be  most  extraordinary  if 
the  veniiors  could  wait  and  speculate 
upon  the  market,  and  then  abandon 
or  set  up  the  contract  as  their  own 
interests  might  dictate.  But  without 
any  reference  to  prices  and  whether 
the  delay  was  long  or  short,  if  this 
was  not  the  deed  of  the  vendee  at  the 
time  it  was  signed   by  himself  and 


Baldwin  (the  agent),  it  is  impossible 
that  the  vendors,  by  any  subsequent 
act  of  their  own  without  his  assent 
could  make  it  his  deed.  There  is,  I 
think,  no  principle  in  the  law  which 
will  sanction  such  a  doctrine.'  Theonly 
point  in  which  the  facts  in  that  case 
differ  materially  from  those  here  pre- 
sented, is,  that  no  part  of  the  pur- 
chase money  was  advanced  to  the 
agent.  But  that  circumstance  cannot 
vary  the  application  of  the  principle. 
The  payment  of  the  money  to  the 
agent  did  not  affect  the  validity  of 
the  contract,  or  make  it  binding  upon 
the  plaintiff.  He  was  at  liberty  to 
reject  the  money,  and  his  acceptance 
of  it  was  an  act  of  ratification  with 
which  the  defendant  was  in  no  way 
connected,  and  which,  although  it 
might  bind  him,  imposed  no  obliga- 
tion upon  the  defendant  until  he  ac- 
tually assented  to  it.  It  required  the 
assent  of  both  parties  to  give  the  con- 
tract any  vitality  or  force." 

"I  am  well  aware  that  there  are 
dicta  and  observations  to  be  found  in 
the  books,  which,  if  taken  literally, 
would  overthrow  the  doctrine  of  the 
cases  to  which  I  have  referred.  It  is 
said  in  Lawrence  p.  Taylor,  5  Hill,  113, 
that  '  such  adoptive  authority  relates 
back  to  the  time  of  the  transaction, 
and  is  deemed  in  law  the  same  to  all 
purposes  as  if  it  had  been  given  be- 
fore.' And  in  Newton  «.  Bronson,  3 
Kern.  594,  {G7  Am.  Dec.  87),  the  court 
says:  '  That  a  subsequent  ratification 
is  equally  effectual  as  an  origiuitl 
authority,  is  well  settled.'  Such  ex- 
pressions are  no  doubt  of  frequent 
occurrence,  and  although  they  display 
too  much  carelessness  in  the  use  of 
language,  yet  if  they  are  understood 


116 


§179. 


THE   LAW   OF   AGBNOT. 


[Book  I. 


the  contract  bo  made  and  compel  the  other  party  to  perform  it 
on  his  part.'  (a) 

A  well  recognized  illustration  of  this  rule  exists,  also,  in 
the  case  of  landlord  and  tenant.  Thus  a  subsequent  assent  on 
the  part  of  a  landlord  will  not  establish  bj  relation  an  unauthor- 
ized notice  to  quit  given  by  his  agent.  The  tenant  must  act 
upon  the  notice  at  the  time  it  is  given,  and  the  notice  must, 
therefore,  at  that  time,  be  such  as  he  can  act  upon  with  security ; 
otherwise  the  tenant  would  be  subjected  to  the  injustice  of  being 
left  in  doubt  as  to  his  action  until  the  ratification  or  disavowal 
of  the  principal.* 


tinction,  I  apprehend,  that  the  de- 
cisions which  I  have  cited  are  to  be 
sustained.  Lawrence  v.  Taylor  and 
Newton  V.  Bronson  were  both  actions 
in  which  the  adverse  party  claimed 
rights  through  the  agency  of  indivi- 
duals whose  acts  had  been  subse- 
quently ratified.  And  the  authorities 
cited  in  support  of  the  proposition 
laid  down  in  the  last  case  (Weed*. 
Carpenter,  4  Wend.  219;  Episcopal 
Society  e.  Episcopal  Church,  1  Pick. 
372;  Corning u  Southland,  3  Hill,  552; 
Moss  V.  Rossie  Lead  Mining  Co.,  5 
Id  137;  Clark  «.  Van  Riemsdyk,  9 
Cranch,  153,  and  Willinks  v.  Hollings- 
worth,  6  Wheat  241),  will,  when  ex- 
amined, be  found  to  have  been  cases 
where  the  subsequent  assent  was  em- 
ployed against  the  persons  who  had 
given  it  and  taken  the  benefit  of  the 
contract." 

» Dodge  V.  Hopkins,  14  Wis.  630, 
affirmed  in  Atlee  v.  Bartholemew,  6^ 
Wis.  43,  5  Am.  St.  Rep.  103.  See 
also  Wilkinson  v.  Heavenrich,  68 
Mich.  674,  65  Am.  Rep.  708. 

2Brahn  v.  Jersey  City  Forge  Co.  38 
N.  J.  L.  74;  Ri2;ht  v.  Cuttrel,  6  East, 
491;  Doe  «.  Walters,  10  B.  &  C.  625; 
Doe  V.  Goldwin,  2  Q.  B.  143. 

Contra,  Roe  v.  Pierce,  2  Camp.  96; 
Goodtitle  v.  Woodward,  8  B.  «fe  Ald» 


as    applicable  only  to  the   cases   in 
which  they  occur,  they  may  be  con- 
sidered as  a  correct  statement  of  the 
law.     The  inaccuracy  consists  in  not 
properly  distinguishing  between  those 
cases  where  the  subsequent  act  of 
ratification  is  put  forth  as  the  founda- 
tion of  a  right  in  favor  of  the  party 
who  has  ratified,  and  those  where  it 
is  made  the  basis  of  a  demand  against 
him.    There  is  a  broad  and  mani- 
fest   difference    between    a    case  in 
which  a  party  seeks  to  avail  himself, 
by  subsequent  assent,  of  the  unauthor- 
ized act  of  his  own  agent,  in  order  to 
enforce  a  claim  against  a  third  per- 
son, and  the  case  of  a  party  acquiring 
an  inchoate  right  against  a  principal, 
by  an  unauthorized  act  of  his  agent, 
to  which  validity  is  afterwards  given 
by  the  assent  or  recognition  of  the 
principal.     Paley    on    Agency,    192, 
note.    The  principal  in  such  a  case 
may,  by  his  subsequent  assent,  bind 
himself,  but  if  the  contract  be  execu- 
tory, he  cannot  bind  the  other  party. 
The  latter  may,  if  he  choose,  avail 
himself  of    such  assent  against    the 
principal,  which  if  he  does,  the  con- 
tract, by  virtue  of  such  mutual  rati- 
fication, becomes  mutually  obligatory. 
There  are  many  cases  where  the  acts 
of  parties,    though    unavailable    for 
their  own  benefit,  may  be  used  against      6»y. 
them.     It  is  upon  this  obvious  dis- 

(o)  This  rale  la  criticized  In  note  to  B  Am.  St.  ^P- "^  "PO  thf  »"*^°';?^  °l  ^^ffnf  S73'. 
Dunn  4  Bine  722;  Soames  v.  Spencer.  1  Dowl.  &  R.  82;  Hammond  v.  Hannm,  21  Mich. ^.  is. 
S^ws  l  ^tna  L.  Ins.  Co.,  92  N.  Y.  696;  but  these  cases  do  not,  in  the  writer's  opmif^ix 
antagonize  the  rule.    See  24  Am.  L.  Rev.  680. 

116 


Cliap.  Y.]  EATIFIOATION.  §  182. 

4.     As  between  Agent  and  the  other  Party. 

§  180.  In  general.  It  is  the  general  rule,  as  will  be  more 
fully  seen  hereafter,  that  when  one  assumes  to  act  as  agent  of 
another  but  fails  to  bind  that  other  as  assumed  on  account  of  a 
lack  of  anthoritj,  he  will  himself  become  personally  liable  to  the 
party  who  relied  upon  his  pretended  authority  for  all  losses  and 
damages  which  he  may  sustain  by  reason  of  such  failure.*  Aa 
between  the  principal  and  agent,  as  has  been  seen,  this  lack  of 
authority  is  fully  supplied  by  ratification.  But  as  between  the 
agent  and  third  persons  a  distinction  is  made  between  eases  of 
contract  and  those  of  tort. 

§  181.  Ratification  releases  Agent  on  Contract.  Where  the 
contract  has  been  made  in  the  name  and  on  behalf  of  the  allcfired 
principal,  and  the  latter,  with  full  knowledge  of  the  facts,  has 
ratified  it,  the  contract  then  becomes  in  fact,  so  far  as  the  rights 
of  the  other  party  are  concerned,  what  at  first  it  only  assumed  to 
be, — the  contract  of  the  principal.  The  other  party  has  then 
what  he  contracted  for, — the  liability  and  responsibility  of  the 
principal ;  and  he  can  obviously  suffer  no  injury'  from  the  fact 
that  the  agent's  act  was  originally  unauthorized.  The  agent, 
therefore,  drops  out  of  sight.  His  identity  is  thereafter  merged 
in  that  of  the  principal  and  he  cannot  personally  call  upon  the 
other  party  for  performance,  nor  can  performance  be  demanded 
of  him.  He  cannot  sue  in  his  own  right,  nor  can  he  be  rendered 
personally  liable  upon  the  ground  of  the  failure  of  an  assumed 
authority.' 

But  if,  for  any  reason,  the  ratification  fails,  as  where  it  is  made 
in  ignorance  of  material  facts,  there  would  seem  to  be  no  reason 
why  the  rights  of  the  other  party,  who  has  done  no  more  to  re- 
lease the  agent  than  to  attempt  in  good  faith  to  realize  what  the 
agent  had  assumed  to  assure  to  him,  should  not  thereupon  be  re- 
vived as  against  the  aorent. 

§  182.  Otherwise  in  Tort.  But  while,  by  ratifying  the  tort 
committed  by  his  agent  the  principal  becomes  liable  therefor, 
this  is  an  additional  liability  and  not  a  substituted  one.  The 
agent  still  remains  liable  to  third  persons  and  satisfaction  may  be 

•  See  po»t,  §§  541,  550.  Ad.   114;  Bowen  c.  Morris,  3  Taunt. 

«  See  East  India  Co.  v.  Hensley,  1      874. 
Esp.  112;  PolhUl  v.  Walter.  3  B.  & 

117 


§  182.  THE    LAW    OF    AGENOT.  [Book  L 

demanded  either  of  the  principal  or  of  the  agent  or  of  both.  It 
is  no  defence  to  one  who  is  sued  for  committing  a  trespass  to 
reply  that  he  acted  as  the  agent  of  another. ' 

'Stephens  t>.    El  wall,   4  M.   «fc  S.  Eaton,  7  Wis.  595;  Thorp  c.  Burling, 

259;  Perminter  v.  Kelly,  18  Ala.  .716,  11  Johns.  (N,  Y.)  285;  Richardson  v. 

54  Am.   Dec.    177;  Josselyn  v.   Me-  Kimball,    28    Me.    463;  Burnap   v. 

Allister,    22   Mich.    800;  Wright   v.  March,  13  111.  535. 

118 


Chap.  VI.] 


DELEGATION  OF  AUTHORITY. 


§184. 


CHAPTEK    VI. 


OF  DELEGATION  OP  AUTHORITY. 


§  183.    In  general. 

I.  Delegation  by  the  Pkincipal. 
II.  Delegation  by  the  Agent. 

184.  Delegatus  non  potest  delegari. 

185.  General  Rule. 

186.  Same  Subject — Judgment  and 

Discretion    cannot  be   dele- 
gated. 

187.  Attorneys  cannot  delegate  per- 

sonal Undertakings. 

188.  Arbitrators    cannot     delegate 

their  Powers. 

189.  Executors,    &c.   cannot  dele- 

gate personal  Trusts. 


190.  Same  Rule  applies  to  Munici- 

pal Corporations. 

191.  And  to  private  Corporations. 

192.  Exceptions  and  Modifications. 

193.  1.  Sub-agent  may  be  employed 

when  Duties  are  mechanical 
or  ministerial  merely. 

3.  When  Necessity  requires  it. 
8.  When  justified  by  Usage  or 

Course  of  Trade. 

4.  When  originally  contempla- 
ted. 

Effect  of  Appointment. 


194. 
195. 

196. 

197. 


§  183.  In  general.  The  anthority  which  one  assumes  to  ex- 
ercise on  the  behalf  of  another  may  be  derived  eitlier  from  the 
principal  himself,  or  from  some  person  to  whom  the  principal  has 
confided  it.  It  is  obvious  therefore  that  a  complete  view  of  the 
doctrine  of  the  delegation  of  authority  embraces  :  1.  Delegation 
by  the  principal,  and,  2.  Delegation  by  the  agent. 

I. 

DELEGATION   BY   THE    PRINCIPAL. 

The  original  delegation  of  authority  by  the  principal  has  been 
quite  fully  discussed  in  preceding  sections,  and  needs  no  separate 
attention  here.  Who  may  be  a  principal,  and  how  he  may  con- 
fer anthority  upon  his  agents,  have  been  the  subjects  of  special 
examination. 

II. 


DELEGATION   BY   THE    AGENT. 


§  184.     Delegatus  non  potest  delegari.     The  appointment  of 
an  agent  in  any  particular  case  is  made,  as  a  rule,  because  he  is 

119 


§  185.  THE    LAW    OF    AGENCY.  [Book  L 

supposed  by  his  principal  to  have  some  fitness  for  the  perform- 
ance of  the  duties  to  be  undertaken.  In  certain  cases  his  appoint- 
ment is  owing  to  the  fact  that  he  is  considered  to  be  especially 
and  particularly  fit.  The  undertaking  demands  judgment  and 
discretion,  which  he  is  supposed  to  possess ;  or  it  requires  the 
skill  and  learning  of  an  expert,  which  he  assumes  to  be ;  or  per- 
sonal force  and  influence  are  desirable,  and  these  the  agent  is 
thought  to  be  able  to  exercise.  Here  is  the  delectus  personcB^ 
and  it  is  obvious  that  unless  the  principal  has  expressly  or  im- 
pliedly consented  to  the  employment  of  a  substitute,  the  agent 
owes  to  the  principal  the  duty  of  a  personal  discharge  of  the 
trust. 

§  185.  General  Rule.  Hence  it  is  the  general  rule  of  the  law 
that  in  the  absence  of  any  authority,  either  express  or  implied, 
to  employ  a  subagent,  the  trust  committed  to  the  agent  is  pre- 
sumed to  be  exclusively  personal  and  cannot  be  delegated  by  him 
to  another  so  as  to  affect  the  rights  of  the  principal.' 

But  this  general  rule  is,  as  will  be  seen,  subject  to  be  modified 
by  the  peculiar  circumstances  and  necessities  of  each  particular 
case,  from  which  or  from  the  usage  of  trade,  a  power  to  delegate 
the  authority  may  be  inferred.' 

§  186.  Same  Subject— Judgment  and  Discretion  not  to  be  dele- 
gated. The  reasons  for  this  rule  are  particularly  applicable  to 
those  cases  where  the  performance  of  the  agency  requires,  upon 
the  part  of  the  agent,  the  exercise  of  special  skill,  judgment  or 

'  Appleton  Bank  v.  McGilvray,  4  authority  from  another  to  do  any  act, 

Gray    (Mas8.)  518,64  Am.  Dec.  92;  must  execute  it  himself,   and  cannot 

McCormick  v.    Bush,    38  Tex.  314;  delegate  it  to  a  stranger;  for  this  be- 

White  V.  Davidson,    8  Md.   169,  63  ing  a  trust  or  confidence  reposed  in 

Am.  Dec.  699;  Lyon  ».    Jerome,   26  him  personally,  it  cannot  be  assigned 

Wend.  (N.  Y.)  485,  37  Am.  Dec.  271;  to  one  whose  integrity  or  ability  may 

Wright  «.    Boynton,   37  N.  H.  9,  72  not  be  known  to  the  principal,  and 

Am.  Dec.    819;  Smith  «.  Sublett,    28  who,  if  he  were  known,    might   not 

Tex.    163;    Stoughton    v.    Baker,   4  be  selected  by  him  for  such  a  purpose. 

Mass.  522,  3  Am.  Dec.  236;  Lynn  «.  The  authority  is  exclusively  personal 


Burgoyne,  13  B.  Men.  (Ky.)  400 
Loomis  V.  Simpson,  13  Iowa  582 
Connor    «.  Parker,   114    Mass.    331 


unless  from  the  express  language 
used  or  from  the  fair  presumptions 
growing  out  of  the  particular  trans- 


Gillis  t).  Bailey  21  N.  H   149;  Furnas  action  a  broader  power  was  intended 

t».  Frankman,  6  Neb.  429;  Harralson  to    be    conferred."      Bell,     J.,    in 

e.  Stoin,  50  Ala.  347.  Wright  v.  Boynton,  mpra. 
"  One  who  has  a  bare  power  of         •  See  post,  §  192,  et  seq. 

120 


Chap.  VI.]  DELEGATION    OF    AUTHORITY.  §  IS 7. 

discretion.  Such  relations  are  obviously  created  because  the 
principal  places  special  confidence  in  the  particular  agent  selected, 
and  there  is  abundant  reason  why  the  trust  should  not  be  trans- 
ferred to  another  of  whose  fitness  or  capacity  the  principal  may 
have  no  knowledge,  without  the  latter's  express  consent.* 

Thus  where  an  agent  had  been  entrusted  with  the  general  ad- 
ministration of  the  affairs  of  a  trading  company,  but  no  power 
to  substitute  others  in  his  place  had  been  given  him,  it  was  held 
that  no  such  power  could  be  implied,  because  there  was  evidently 
a  confidence  reposed  in  him  which  the  company  might  not  be 
willing  to  repose  in  others."  For  the  same  reasons  the  agent  who 
has  been  given  the  important  power  to  bind  his  principal  by  the 
execution  of  promissory  notes  cannot  delegate  the  power  to  a 
subagent.* 

A  bailment  of  personal  property  to  an  agent  with  power  to  sell, 
also  creates  a  personal  trust  which  cannot  be  delegated.*  So 
where  an  agent  had  been  authorized  to  sell  real  estate,  but  in  his 
absence  and  without  his  knowledge,  the  land  was  sold  by  one 
falsely  assuming  to  be  a  subagent,  it  was  held  that  the  sale  was 
binding  neither  upon  the  principal  nor  the  agent,  as  the  princi- 
pal was  entitled  to  the  judgment  and  discretion  of  the  agent  in 
making  the  sale.' 

§  187.  Attorneys  cannot  delegate  personal  Undertaking.  The 
appointment  of  an  attorney  to  argue  or  conduct  a  cause  creates  a 
personal  trust,  and  he  can  neither  entrust  the  performance  of  this 
duty  to  another  attorney  of  his  own  selection,  nor  let  the  case 
out  on  shares,  without  the  express  consent  of  his  principal.* 

This  rule,  however,  does  not  demand  that  the  attorney  shall 
perform,  in  person,  all  of  the  merely  mechanical  or  minister- 
ial work  involved  in  the  case.  As  will  be  seen  in  a  subsequent 
section,  the  performance  of  such  duties  through  the  agency  of 

'  Emerson  «.   Providence  Hat  Co.  C.  634;  Pendall  v.  Rench,  4  McLean 

12  Mass.  237,  7  Am.  Dec.  66;  Paul  v.  (U.  S.  C.  C.)  259. 

E  J  wards,  1  Mo.  80;  Lewis  «.  Inger-  'Emerson  «.  Providence  Hat  Co., 

soil,  8  Abb.  (N.   Y.)  App.  Dec.  55;  mpra. 

Sayre  v.  Nichols,  7  Cal.  535,  68  Am.  «Idem. 

Dec.  280;  Commercial  Bank®.   Nor-  «Hunto.  Douglass,  22  Vt.  128. 

ton,  1  Hill  (N.  Y.)  501;  Dorchester,  »  Barret  «.  Rhem,  6  Bush.  (Ky.)  4G6. 

&c.,  Bank  v.  New  England  Bank,  1  'Eggleston*.  Boardman,  37  Mich. 

Gush.    (Mass.)     177;    Planters    «&c.,  14. 
Bank  v.  First  National  Bank,  75  N. 

121 


§  188.  THE   LAW   OF    AGENCY.  [Book  1. 

others,  falls  under  a  well  recognized  exception  to  the  general 
rule.  • 

§  188.  Arbitrators  cannot  delegate  their  Powers.  This  rule 
also  applies  with  special  force  to  arbitrators.  They  are  selected 
by  parties  who  have  placed  particular  confidence  in  their  personal 
judgment,  discretion  and  ability,  and  it  would  be  a  palpable  in- 
justice if  they  were  to  be  permitted  to  delegate  their  responsibi- 
lities and  powers  to  others.'  But  it  is  entirely  proper  for  arbitra- 
tors, in  a  case  requiring  it,  to  obtain  from  disinterested  persons 
of  acknowledged  skill  such  information  and  advice  in  reference 
to  technical  questions  submitted  to  them,  as  may  be  necessary  to 
enable  them  to  come  to  correct  conclusions,  provided  that  the 
award  is  the  result  of  their  own  judgment  after  obtaining  such 
information.'  They  may  also  avail  themselves  of  such  mechan- 
ical or  ministerial  assistance  as  the  nature  of  their  duties  may  re- 
quire.* 

§  189.  Executors,  &c.,  cannot  delegate  personal  Trusts. 
This  principle  is,  likewise,  of  frequent  application  to  the  case  of 
persons  upon  whom  the  law  has  devolved  discretionary  or  fiduci- 
ary powers,  such  as  executors,  guardians  and  public  trustees. 
Such  powers  cannot  be  delegated  without  express  authority.' 

§  190.  Same  Kule  applies  to  Municipal  Corporations.  The 
same  rule  applies  to  the  powers  and  duties  conferred  upon  muni- 
cipal corporations  and  municipal  oflBcers.  Wherever  judgment 
and  discretion  are  to  be  exercised,  the  body  or  ofiicer  entrusted 
with  the  duty  must  exercise  it;  it  cannot  be  delegated  or  farmed 
out.' 

«  See  post  §  193 ;  Eggleston*.  Board-  •  Berger  e.  DufiE,  4  Johns.  (N.  Y.) 

man,  «w;5ra.  Ch.  369;  Newton  c.   Bronson,   13  N. 

2  Ling  wood  v.   Bade,   2  Atk.    501;  Y.  687.  67  Am.    Dec.    89;    Lyon  v. 

Proctor  V.  Williams,   8  C.   B  (N.  S.)  Jerome,    26  Wend.   (N.  Y.)  485,    37 

380;  Whitmorec.  Smith,  5  H.  &  N.  Am.  Dec.  271;  Hicks  t).  Dorn,  42  N. 

824;  Little*.  Newton,  2  Scott  N.  R.  Y.  51;  St.  Peter  c.  Denison,   58  N. 

509.  Y.  421 ;  Curtis  v.   Leavitt.   15  N.  Y. 

» Soulsby  B.  Hodgson,  3  Burr.  1474;  190;  The  California,   1  Sawyer,  603; 

Caledonia    Ry    Co.    v.    Lockhart,    3  White  w.  Davidson,  8  Md.  169,  63  Am. 

Macq.  808;  Anderson  v.    Wallace,  3  Dec.  699;    Merrill  v.    Farmers,    &c., 

CI.  &Fin.  26;   Eads  v.   Williams,  4  Co.  24Hun(N.  Y.)  300;  Stoughton  u. 

DeGex.  Mac.  &  Gor.  674.  Baker.  4  Mass.  522,  3  Am.  Dec.  236. 

«Thorp®.  Cole,  2Cr.  M.  &  R.  367;  'State       v.      Hauser,       63      Ind. 

Harreyt).  Shelton,  7Beav.  455;  Moore  155;      State      ».      Bell,       34      Ohio 

V.  Barnett,  17  Ind.  349.  St.     194;     Birdsall      v.      Clark,     73 

122 


Chap.  YI.]  DELEGATION    OF    AUTHORITY.  §  194. 

§  191.  And  to  private  Corporations.  "  The  general  super- 
vision and  direction  of  the  affairs  of  a  corporation,"  says  Mr. 
Mora  we  tz.  "  are  especially  intrusted  by  the  shareholders  to  the 
board  of  directors;  it  is  upon  the  personal  care  and  attention  of 
the  directors  that  the  shareholders  depend  for  the  success  of  their 
enterprise.  It  follows  that  authority  to  delegate  these  general 
powers  of  management  cannot  be  implied."  ' 

§  192.  Exceptions  and  Modifications.  But  the  general  rule 
above  given  is  subject  to  certain  exceptions  and  modifications 
growing  out  of  the  nature  of  the  authority  or  the  exigencies  and 
necessities  of  the  case,  or  based  upon  the  custom  and  usage  of 
trade  in  similar  cases.     Thus — 

§  193.  1.  Subagent  may  be  employed  when  Duties  are  me- 
chanical or  ministerial  merely.  Where  in  the  execution  of  the 
authority  an  act  is  to  be  performed  which  is  of  a  purely  mechan- 
ical, ministerial  or  executive  nature,  involving  no  elements  of 
judgment,  discretion  or  personal  skill,  the  power  to  delegate  the 
performance  of  it  to  a  subagent  may  be  implied.* 

Thus  an  agent  empowered  to  execute  a  promissory  note,'  or  to 
bind  his  principal  by  an  accommodation  acceptance,*  or  to  sign 
his  name  to  a  subscription  agreement,'  having  himself  first  deter- 
mined upon  the  propriety  of  the  act,  may  direct  another  to  per- 
form the  mechanical  act  of  writing  the  note  or  signing  the  accept- 

N.   Y.   73,   29  Am.  Rep.  105;  Brook-  896;  Ruggles  ».  Collier,  43  Mo.  353; 

lyn».  Breslin,  57  N.   Y.   591;    Mat-  Meuser  c.  Risdon.  36  Cal.   239;  Dar- 

thewa  t».  Alexandria.  68  Mo.   115,  30  lingt).St.Paul,  19 Minn.  389;  St.  Louis 

Am.  Rep.  776;  Maxwell  v.  Bay  City  v.  Clemens,  43  Mo.  395,  S.  C.  52  Mo. 

Bridge  Co.,  41   Mich.  453;    Clark  t?.  133. 

Washington,   12  Wheat.  (U.   S.)  54;  *  Morawetz  on  Corporations,  §  536. 

Thompson  v.  Schermerhorn,  6  N.  Y.  « Williams  v.  Woods,  16  Md.   220; 

93;    Davis  ».  Read,  65  N.     Y.    566;  Grinnell  v.   Buchanan,    1  Daly    (N. 

Supervisors    v.    Brush,    77    111.    59;  Y.).  538;  Eldridge  «.  Holway,  18  111. 

Thompsons.  Boonville,  61  Mo.  282;  445;  Joor  c.  Sullivan,  5  La.  Ann.  177. 

State  V.  Fiske,  9  R.  I.   94;    State  v.  Grady  «.  American  Cent.  Ins.  Co.,  60 

Paterson,  34  N.  J.  L.  168;  Hydes  v.  Mo.  116;  Newell  v.  Smith,  49  Vt.  255. 

Joyes,  4  Bush.  (Ky.)  464;  Oakland®.  »Sayre  v.  Nichols,  7  Cal.   535,  68 

Carpentier,   13  Cal.   540;    Whyte  v.  Am.  Dec.  280. 

Nashville,  2  Swan  (Tenn.)  364;  Lord  *  Commercial    Bank*.    Norton,    1 

V.  Oconto.  47  Wis.  386;  Lauenstein  v.  Hill  (N.  Y.)  501. 

Fond  du  Lac,  28  Wis.  336;    Gale  v.  » Norwich  University  c.  Denny,  47 

Kalamazoo,    23  Mich.  344;   Indiana-  Vt.  13. 

polls  «,  Indianapolis  Gas  Co.,  66  Ind. 

123 


§  194.  THE   LAW   OF    AGENCY.  [Book  I. 

ance  or  subscription,  and  the  act  so  performed  will  be  binding 
upon  the  principal. 

So  an  agent  authorized  to  sell  real  estate,  who  exercises  his 
own  discretion  as  to  the  price  and  the  terms,  may  employ  a  sub- 
agent  to  look  up  a  purchaser,*  and  an  insurance  agent  may  era- 
ploy  clerks,  and  authorize  them  to  solicit  risks,  deliver  policies, 
collect  premiums  and  give  credit  for  the  same.* 

§  194.  2.  When  Necessity  requires  it.  It  is  obvious,  too, 
that  there  are  many  cases  where  from  the  very  nature  of  the 
duty,  or  the  circumstances  under  which  it  is  to  be  performed,  the 
employment  of  subagents  is  imperatively  necessary,  and  that  the 
principal's  interests  will  suffer  if  they  are  not  so  employed.  In 
such  cases,  the  power  to  employ  the  necessary  subagents  will  be 
implied.'  The  authority  of  the  agent  is  always  construed  to  in- 
clude the  necessary  and  usual  means  to  execute  it  properly. 

Thus  if  a  note  be  sent  to  a  bank  for  collection,  and  for  the  pro- 
tection of  the  principal  it  becomes  necessary  to  have  the  note 
protested,  the  authority  of  the  bank  to  employ  the  proper  officer 
will  be  implied ;  *  and  so  if  a  note  or  draft  be  sent  to  a  bank,  to 
be  collected  at  a  distant  point,  the  authority  of  the  bank  to  era- 
ploy  a  subagent  at  the  place  of  collection,  and  to  forward  the 
note  or  draft  to  him  there,  would  be  presumed." 

So  an  agent  employed  to  collect  a  demand  by  suit  would  have 
implied  power  to  employ  the  necessary  attorneys;*  or  if  author- 
ized to  sell  goods,  to  employ  a  broker  or  auctioneer; '  or  if  auth- 
orized to  charter  a  vessel,  to  employ  a  vessel  broker  to  assist  him 
in  securing  the  charter.' 

§  195.  3.  When  justified  by  Usage  or  Course  of  Trade.     Again 

'Renwick  v.    Bancroft,   56  Iowa,  »  Appleton  Bank  v.  McGilvray,  4 

527.  Gray  (Mass.)  518,  64  Am.    Dec.   92; 

»Bodine  «.  Exchange  Ins.  Co.,  51  Baldwin  v.  Bank  of  Louisiana,  1 
N.  Y.  123;  Grady  «.  American  Cent.  La.  Ann.  13,  45  Am.  Dec.  72;  Cora- 
Ins.  Co.  supra.  mercial  Bank  v.  Martin,  1  La.  Ann. 

3  Dorchester,   «fec.    Bank    v.    New  344,  45  Am.  Dec.  87. 

Ensrland  Bank,  1  Cush.   (Mass.)  177;  •  Commercial     Bank     «.     Martin, 

Johnson «.  Cunningham,  1  Ala.  249;  supra;    Buckland     «.     Conway,    16 

Gray  v.  Murray,  3  Johns.  (N.Y.)  Ch.  Mass.  396. 

167;  Rossiter  fl.  Trafalgar  Life  Assur,  t  Harralson  ».  Stein,   50  Ala.  347; 

Ass'n,  27  Beavan,  377.  Strong  v.  Stewart,  9  Heisk.   (Tenn.) 

*  Tieman  v.    Commercial   Bank,  7  147. 

How.  (Miss.)  648,  40  Am.  Dec.  83.  •  Saveland  «.  Green,  40  Wis.  431. 

124 


Chap.    VI.]  DELEGATION    OF    AUTHOKITT.  §  195. 

the  appointment  of  a  subagent  may  be  justified  by  a  known  and 
established  usage  or  course  of  dealing.'  Parties  contracting  in 
reference  to  a  subject-matter  concerning  which  there  is  such  a 
usage  may  well  be  presumed  to  have  it  in  contemplation. 
In  contractis  taoite  insunt  quae  sunt  Tnoris  et  consuetudinis,  is  a 
maxim  of  law.* 

Thus  where  goods  were  entrusted  by  the  plaintiff  to  a  mer- 
chandise broker  to  sell,  deliver  and  receive  payment,  and  the 
broker  deposited  them  in  accordance  with  an  usage  with  a  com- 
mission merchant  connected  with  an  auctioneer,  taking  his  note 
therefor,  and  some  of  the  goods  were  afterward  sold  at  a  less 
price  than  the  broker  was  authorized  to  sell  them  for,  it  was  held 
that  the  principal  was  bound  by  such  act  of  the  broker  and  that 
he  could  not  maintain  trover  against  the  commission  merchant. 
Said  the  court:  "Business  to  an  immense  amount  has  been 
transacted  in  this  way,  and  the  usage  being  established,  it  fol- 
lows that  when  the  plaintiff  authorized  his  broker  to  sell,  he 
authorized  hira  to  sell  according  to  the  usage  ;  and  when  the 
defendants  dealt  with  the  broker,  even  if  they  had  known  that 
the  goods  were  not  his  own,  they  had  a  right  to  consider  him  as 
invested  with  power  to  deal  according  to  the  usage."  • 

The  power  of  a  bank  receiving  a  note  for  collection  at  another 
place,  to  forward  the  note  to  a  bank  at  that  place  for  payment, 
may  also  be  derived  from  the  same  source,  as  may  other  powers 
referred  to  in  the  preceding  section.*  Usage,  however,  will  not 
be  permitted  to  contravene  express  instructions,  and  if  the  agent 
has  been  denied  the  power  of  delegation,  usage  can  not  confer 
it.'     Nor  can  usage  justify  the  agent  in  violating  the  funda- 

1  Buckland  «.    Conway,    16  Mass.  from  the  usual  course  of  trade  or  the 

896;  Smith  «.  Sublett,  23  Tex.  163;  nature  of  the  transaction. 
Lynn  v.  Burguoyne,13  B.  Mon.  (Ky.)  »  Barksdale  v  Brown,    1   Nott     & 

400;  Moon  v.  Guardians,   3  Bing.  N.  McC.  (S.  C.)  517.  9  Am.   Dec.    720; 

Cas.  814;  Gray  v.    Murray,  3  Johns.  Bliss  v.  Arnold,   8  Vt.   252,  30  Am. 

(N.  Y.)  Ch.  167:  Darling  t».  Stanwood,  Dec  467;  Hall  v.  Storrs,  7  Wis.  253; 

14  Allen  (Mass.)  504,  Johnson  v.  Gun-  Day  v.  Holmes,    103   Mass.  306;  Par- 

ningham,  1  Ala.  249.  sons  b  Martin,  11  Gray   (Mass.)   112; 

8  See  Ewell's  Evans'  Agency,  58.  Clark   v.   Van    Northwick,    I    Pick. 

»  Laussatt  t>.  Lippincott,  6   Serg.  «fc  (Mass)  843;   Leland  v.    Douglass,    1 

R  (Penn.)386,  9  Am.  Dec.  440.  Wend.  (N.  Y.)490;  Catlin   v.   Smith, 

*  Wilson  V.  Smith,  3  How.(U.  S.)  24  Vt.  85;    Hatchings  v.    Ladd,    16 

763,  where  the  court  speaks  of  it  as  Mich.  493. 
an    authority    fairly    to   be    implied 

125 


§    196.  THE    LAW    OF    AGENCY.  [Book  I. 

mental  duties  which  he  owes  to  his  principal  or  to  change  the 
intrinsic  character  of  the  contract  existing  between  them.* 

8  196.  4.  When  originally  contemplated.  If  the  appointment 
of  a  subagent  was  contemplated  by  the  parties  at  the  time  of  the 
creation  of  the  agent's  authority,  or  if  it  was  then  expected  that 
subagents  might  or  would  be  employed,  this  would  be  treated  as 
at  least  implied  authority  for  such  an  appointment.' 

§197.  Effect  of  Appointment.  It  is  not  the  purpose  here  to 
go  minutely  into  the  mutual  rights  and  obligations  of  the  princi- 
pal, agent,  and  subagent.  This  subject  is  reserved  for  subse- 
quent consideration.     But — 

In  ge7ieral.—U  an  agent  employs  a  subagent  for  his  principal, 
and  by  his  authority,  expressed  or  implied,  then  the  subagent  is 
the  agent  of  the  principal  and  is  directly  responsible  to  the  prin- 
cipal for  his  conduct,  and  if  damage  results  from  the  conduct  of 
Buch  subagent,  the  agent  is  only  responsible  in  case  he  has  not 
exercised  due  care  in  the  selection  of  the  subagent. 

But  if  the  agent,  having  undertaken  to  transact  the  busmess 
of  his  principal,  employs  a  subagent  on  his  own  account  to  ussist 
him  in  what  he  has  undertaken  to  do,  he  does  so  at  his  own  risk, 
and  there  is  no  privity  between  such  subagent  and  the  principal. 
The  subagent  is,  therefore,  the  agent  of  the  agent  only  and  is 
responsible  to  him  for  his  conduct,  while  the  agent  is  responsible 
to  the  principal  for  the  manner  in  which  the  business  has 
been  done,  whether  by  himself,  or  his  servant  or  his  agent.' 

»  Robinson  v.  Mollett,  L.  R.  7  H.  Campbell «.  Reeves,  3  Head  (Tenn.) 

of  L.  803,  14  Eng.  Rep.  177;  Minne-  226;  Commercial   Bank  v.   Jones,  18 

sota  Cent.  R.   R.   Co,  v.  Morgan,  52  Tex.  811;  Barnard  t)  Coffin,  141  Mass, 

Barb.  (K  Y.)  217.  37;  55  Am.  Rep.  443;  Warren  Bank 

»  Johnson  v.   Cunningham,  1  Ala.  v.  Suffolk    Bank,  10   Cash.    (Mass.) 

249;  Duluth  Nat.  Bank  v.  Fire  Ins.  582;  Pownall  v.  Bair,  78  Penn.    St 

Co.  85  Tenn.  76,  4  Am.  St,  Rep.  744.  403;  Darling  c.  Stanwood,   14  Allen 

»  Appleton  Bank  v.  McGilvray,    4  (Mass.)  504;  Stephens  «.  Babcork,  8 

Gray  (Mass.)  518;  64  Am.    Dec.  92:  B.  &  AdoL  354;  McCanta  «.  Wells,  4 

Sexton  V.  Weaver,    141    Mass.  273;  S,  C.  381, 

126 


Chap.  YII.]  TERMINATION    OF   THE   RELATION. 


CHAPTER  VII. 


OP  THE  TERMINATION  OP  THE  RELATION. 


1 198.  Purpose  of  Chapter, 
luy.  Variety  of  Methods. 

I.  By  Original  Agkehment. 

200.  1.  By  Efflux  of  Time. 

201.  2.  By  Accomplishment  of  Ob- 

ject. 

202.  Same  Subject, 

IL  By  Act  of  the  Parties. 

1.  BffDocation  by  tha  Principal. 

A,  Private  Agency, 

204.  General    Rule  —  As   between 

Principal  and  Agent,  Agency 
is  revocable  at  any  Time  if 
not  coupled  with  an  Inter- 
est. 

205.  What  Interest  sufficient. 

206.  Same  Subject — Instances. 

207.  "What  Interest  not  sufficient — 

Instances, 

208.  Same   Subject — Bare  Powers, 

209.  Power    to    revoke — How  dis- 

distinguished  from  Right  to 
revoke, 

210.  When  Right  to  revoke  exists. 

211.  What  amounts  to  Contract  for 

definite  Time  —  Unilateral 
Agreements. 

213.  Same  Subject — When  definite 

Time  will  be  implied, 
218.  Agency  terminable  for  Agent's 
Incompetence. 

214.  When  Agency  may  be  termi- 

nated for  Agent's  Miscon- 
duct 

215.  Same  Subject — Illustrations. 

216.  How    the  Authority   may  be 

revoked. 


1 217.  Same  Subject. — By  sealed  In- 
strument. 

218.  Same  Subject. — Express  revo- 

cation not  required. 

219.  Revocation  may  be  implied. 

220.  By  disposing  of  Subject-mat- 

ter. 

221.  By  Dissolution  of  Partnership 

or  Corporation, 

222.  By  Severance  of  joint  Inter- 

est. 

223.  Notice  of  Revocation. 

a.  To  Third  Persons. 

224.  When  Authority  was  general. 

225.  Where  Authority  was  special. 

b.  To  Agents. 

226.  Notice     must     be    given    to 

Agent. 

c.  To  Subagents. 

227.  Notice  must  be  given  to  Sub- 

agents — When. 

228.  Notice  —  How  given  —  What 

sufficient. 

229.  When  Evidence  of  Agency  re- 

corded,   Revocation    should 
be  recorded, 

230.  Notice  should  be  unequivocaL 

231.  How  Sufficiency  of  Notice  de- 

termined. 

B.  Public  Agency. 

232.  Statutory  Agency  not  revoca- 

ble at  Will  of  Princ  ipal, 

2,  Renunciation  by  Agent. 

233.  General  Rule — Agent  may  re- 

nounce at  any  Time. 

234.  By  mutual  Consent. 


127 


§198. 


THE    LAW    OF    AGENCY. 


[Book  I. 


I  235.  Abandonment  may  be  treated 

as  Renunciation. 
336.  Agent  may  abandon  if  required 

to  do  unlawful  Act. 
237.  Notice  of  Renunciation. 

III.  By  Operation  of  Law. 

1.  By  Death  of  one  of  (he  Parties. 

a.  By  Death  of  the  Principal. 

239.  In  general. 

240.  General   Rule— Death  of  Prin- 

cipal terminates  Agency. 

241.  Same     Subject  —  Not    when 

coupled  with  an  Interest. 

242.  Same  Subject— What  Interest 

sufflcient. 

243.  Same  Subject— What  Interest 

sufflcient — Instances. 

244.  Same  Subject — What  Interest 

not  sufflcient — Iiistances. 

245.  How  when  Death  unlsnown. 

246.  Same  Subject — Instances. 

247.  Death    of    Partner     or    joint 

Owner  dissolves  Agency. 

248.  Death   of   Principal   dissolves 

Authority  of  Substitute. 

b.  By  death  of  the  Agent. 

249.  General  Rule — Death  of  Agent 

terminates  Agency. 

250.  Not    when   coupled   with    an 

Interest. 

251.  When  Death   of    one  of   two 

Agents  terminates  Agency. 

252.  Effect  on  Substitute. 

2.  By  Insanity  of  one  of  the  Parties. 
a.  By  Insanity  of  the  Principal. 

253.  In  general. 


§  254.  General  Rule. 

255.  But — Ignorance  of  Insanity. 

256.  When  coupled  with  an  Inter- 

est. 

257.  What    Evidence    of    Insanity 

sufflcient. 
b.  By  Insanity  of  the  Agent. 

258.  In  general. 

259.  General      Rule  —  Terminates 

Agency  unless  coupled  with 
an  Interest. 

260.  How  when  Insanity  unknown. 

261.  Insanity  of    one    of    two  or 

more  Agents. 

262.  Subagents. 

3.  By  Bankruptcy  of  one  of  the  Parties. 

a.  Bankruptcy  of  Principal. 

263.  General  Rule— Bankruptcy  of 

Principal  terminates  Agent's 
Authority. 

264.  Mere  Insolvency  not  enough. 

265.  Agent's    Authority    not     dis- 

solved when  coupled  with  an 
Interest. 

266.  How    when    Bankruptcy  un- 

known. 

b.  Bankruptcy  of  the  Agent 

267.  General  Rule. 

4.  By  Marriage. 

268.  In  general. 

5.  By  War. 

269.  In  general 

6.  By  Termination  of  tlie  PrirusipaVt 
Authority. 

270.  Principal's     Removal     from 

Office  removes  Subordinates. 


§  198.  Purpose  of  Chapter.  Having  heretofore  considered 
in  what  manner  and  under  what  conditions  the  relation  of  prin- 
cipal and  agent  may  be  created,  it  now  remains  to  be  seen  in 
what  manner  and  under  what  conditions  that  relation  may  be 
terminated,  and  also  to  ascertain  what  results  may  follow  from 
such  termination. 

The  termination  of  the  autlior- 


§  199.     Variety  of  Methods. 


128 


Chap.  YIl.]  TERMINATION   OF   THE    RELATION.  §  200. 

itj  may  be  effected  by  a  variety  of  methods.  Thus  the  aj^ency 
may  have  been  created  to  endure  only  for  a  limited  period,  and 
at  tlie  expiration  of  that  period  would  come  to  a  close  by  the 
mere  efflux  of  time ;  or  it  may  have  been  called  into  being  for 
the  express  purpose  of  performing  a  single  act  or  a  series  of  acts, 
and  these  being  performed  the  agency  would  be  terminated  by 
the  accoinplishinent  of  that  for  which  it  was  created.  Again, 
under  certain  circumstances,  the  agency  may  be  concluded  by 
the  act  of  the  parties,  as  where  the  principal  revokes  or  the  agent 
renounces  it.  So  subsequent  changes  in  the  condition  or  relation 
of  the  parties  may  render  the  continuance  of  the  agency  inconsist- 
ent or  impossible,  and  it  will  be  terminated  by  operation  of  law. 
For  convenience  of  treatment  these  various  methods  may  be 
distributed  under  three  heads:  I.  By  original  agreement.  IL 
By  act  of  the  parties,  and,  III.  By  operation  of  law. 

L 

BY   ORIGINAL   AGREEMENT, 

§  200.  1.  By  Efflxix  of  Time.  Where  the  agency  was  origin- 
ally created  to  endure  during  a  given  period  or  until  the  happen- 
ing of  a  certain  event,  the  expiration  of  that  period  and  the 
happening  of  that  event  would  respectively  operate  to  terminate 
the  agency. 

"Where  the  language  used  by  the  parties  is  express  as  to  the 
length  of  time  the  agency  is  to  continue,  there  can  of  course  be 
no  doubt  as  to  its  duration  ;  but  this  result  may  also  be  reached 
where  the  period  is  not  expressly  fixed  but  must  be  determined 
by  the  facts  and  circumstances  of  the  case. 

Thus  where  a  resident  of  Australia  who  was  possessed  of 
estates  in  England,  executed  a  written  power  of  attorney  to  a 
firm  of  English  solicitors,  in  which  he  recited,  "Whereas  I 
am  about  to  return  to  South  Australia  and  am  desirous  of  ap- 
pointing attorneys  to  act  for  me  during  my  absence  from  England 
in  the  care  and  management  of  the  said  estate  *  *  *  * 
and  generally  to  act  for  me  in  the  management  and  dealings  with 
any  property  belonging  to  me  during  my  absence  from  Eng- 
land," and  then  proceeded  by  the  operative  part  of  the  instru- 
ment to  convey  such  a  power,  but  without  any  limitations  as  to 

9  129 


§  200.  THE   LAW    OF    AGENCY.  [Book  I. 

time,  it  was  held  that  the  recital  controlled  the  general  language 
used  in  the  operative  part  of  the  instrument  and  limited  the 
exercise  of  the  powers  of  the  attorneys  to  the  period  of  the 
principal's  absence  from  England.  Kay,  J.,  said  :  "  The  opera- 
tive part  of  the  instrument  does  not  refer  in  any  way  to  the 
duration  of  the  power,  therefore  a  statement  in  the  recital  or  any 
other  part  of  it  that  it  was  only  intended  to  have  effect  during 
the  donor's  absence  from  England  would  not  be  repugnant  to 
anything  in  the  operative  part.  It  is  only  a  conclusion  of  law 
that  if  such  a  power  is  silent  as  to  its  duration  it  must  last  during 
the  donor's  life,  or  until  he  revokes  it.  I  asked  during  the 
argument  if  the  recital  had  contained  a  stipulation  in  the  most 
express  words  that  could  be  employed,  that  the  power  should 
only  be  used  during  the  donor's  absence  or  other  limited  time, 
whether  that  could  be  disregarded,  and  the  answer  was  that  it 
could.  With  that  I  am  unable  to  agree.  A  power  of  attorney 
like  a  release  or  a  bond,  as  in  the  case  of  Lord  Arlington  v.  Mer- 
ricke,^  seems  to  me  precisely  the  kind  of  instrument  which  may 
be  limited  by  a  recital.  And  the  only  question  upon  which  it 
appears  to  me  there  can  be  any  reasonable  doubt  is  whether  that 
is  the  true  effect  of  the  recital  in  this  power. 

"It  is  said  that  it  was  only  inserted  for  the  purpose  of  show- 
ing the  motive  for  giving  the  power  of  attorne}',  but  I  can  see 
no  object  in  introducing  the  recital  for  that  purpose.  And  after 
the  best  consideration  I  can  give  the  matter,  I  come  to  the  con- 
clusion that  the  words  'during  my  absence  from  England'  which 
occur  twice  in  this  recital  are  there  used  for  expressing  the  limit 
of  time  during  which  the  power  was  to  be  exercised." ' 

So  where  an  agreement  creating  an  agency  for  the  sale  of 
machines,  made  no  provisions  as  to  the  time  of  its  continuance, 
but  did  provide  that  the  agency  should  extend  over  a  certain 
section  of  the  country,  and  that  the  principal  agreed  to  furnish 
to  the  agent  "  such  number  of  machines  as  he  may  be  able  to  sell 
as  their  agent,  prior  to  October  1st,  1867,"  it  was  held  in  an 
action  against  the  agent's  sureties,  that  a  fair  and  reasonable  con- 
struction of  the  agreement  created  an  agency  only  until  tiie  first 
day  of  October,  1867.' 

» Williams  Saunders,  813.  'Gundlach  v.  Fischer,  59  111.  172. 

» Danby  v.  Coutta,  L.  R.,  29  Ch.      An  agency  may  be  revoked  in  pur- 

Div.  500.  Buance  of  a  stipulation  to  that  effect 

130 


Chap,  yil.]  TERMINATION    OF    THE    EELATION.  §  201. 

§  201.  2.  By  Accomplishment  of  Object.  Where  the  agency 
was  created  for  the  purpose  of  performing  some  specific  act  or 
acts,  it  will  be  terminated  by  the  accomplishment  of  the  purpose 
which  called  it  into  being.  Having  fulfilled  its  mission  it  is 
henceforth yujictus  ojficio. 

Thus  is  an  Iowa  case,  the  firm  of  A  &  B  had  been  employed 
by  one  S  to  negotiate  for  him  the  purchase  of  some  land.  In  the 
month  of  July  they  made  the  purchase  and  delivered  to  S  the 
contract  of  sale,  and  S  then  gave  them  one-half  of  the  purchase 
price  for  payment  to  the  vendor,  and  paid  them  for  their  services. 
In  August  a  deed  for  the  land  was  sent  to  them  and  they  delivered 
it  to  S,  who  then  paid  the  balance  of  the  purchase  price.  In 
October  following,  A  bought  the  same  land  at  a  sale  thereof  for 
taxes,  and  subsequently  brought  an  action  to  recover  the  land  of 
the  vendee  of  S,  and  it  was  attempted  to  defeat  the  action  upon 
the  ground  that  A  &  B  were  still  the  agents  of  S  at  the  time 
A  made  the  purchase  at  the  tax  sale.  But  the  court  said  that 
upon  these  facts  it  was  quite  clear  that  the  agency  of  the  plaint- 
iff, or  of  A  &  B  for  the  purchase  of  the  land  for  S,  terminated 
at  tiie  time  they  delivered  to  him  the  written  contract  for  the  con- 
veyance of  the  land  on  receipt  of  one-half  of  the  purchase  money 
and  the  payment  of  their  fee  for  the  services  performed.  When 
this  was  accomplished  A  &  B  had  done  all  they  had  been  em- 
ployed to  do.  They  had  made  the  purchase  as  S  had  desired 
them  to  do,  delivered  to  him  the  written  contract  sent  to  them 
for  S  and  had  received  the  first  payment  as  per  agreement.  This 
completed  the  services  they  had  undertaken.  S  himself  so  re- 
garded it,  for  when  these  things  were  done,  he  inquired  how 
much  they  charged  for  their  services,  and  on  being  informed  of 
the  amount  he  paid  the  same.  They  had  performed  the  business 
for  which  the  agency  had  been  constituted,  and  by  operation  of 
law,  the  agency  was  terminated.  This  was  in  July.  The  pur- 
chase at  the  tax  sale  was  not  made  until  October  of  the  same 
year.  At  that  time  they  were  as  free  to  purchase  the  same  as  any 
other  persons.     Their  agency  no  longer  existed.' 

So  where  an  agent  was  employed  to  find  a  purchaser  for  land 

in  the  contract  of  employment.  Ore-  a  like  ruling  was  madp  in  the  similar 
gon  Mortgage  Co.  v,  American  Mort-  case  of  Walker  v.  Derby,  5  Bissell. 
gage  Co.  35  Fed.  Rep.  23.  134.    See  also  Blackburn  v.   Scholea, 

» Moore*.  Stone,  40 Iowa,  259.  And      2  Camp.  343. 

131 


§  202.  THE   LAW    OF    AGENCY.  [Book  I. 

at  a  fixed  price,  which  he  did,  it  was  held  that  thereupon  his  agency 
to  the  seller  terminated,  and  he  was  at  liberty  to  undertake  the 
service  of  the  purchaser  in  attending  to  the  due  execution  of  the 
conveyance.' 

So  a  power  delegated  to  an  agent  to  "fix  and  determine"  a 
matter  in  which  he  has  no  power  of  his  own  outside  of  the  agency, 
is  expended  when  he  has  once  acted  upon  it.' 

§  202.  Same  Subject.  Again  where  the  object  for  which  the 
agency  was  created  is  accomplished  by  other  means  before  the 
agent  has  acted,  there  is  nothing  left  for  him  to  act  upon,  and  his 
authority  is  therefore  terminated.  Thus  where  the  inhabitants 
of  a  town  authorized  their  treasurer  to  borrow  money  for  the  ad- 
justment of  a  State  tax,  but  the  tax  was  adjusted  in  another  way 
before  the  treasurer  had  acted,  it  was  held  that  Iiis  authority  to 
borrow  money  was  thereby  terminated.*  So  where  before  one  of 
two  agents  separately  authorized  to  sell  real  estate  had  found  a 
purchaser,  the  principal  had  effected  a  sale  of  the  land  to  a  pur- 
chaser produced  by  the  other  agent,  it  was  held  that  the  first 
agent's  authority  to  sell  was  terminated  by  the  sale.* 

II. 

BY  ACT  OF  THE  PARTIES. 

§  203.  It  has  been  said  above  that  the  relation  of  principal 
and  agent  may,  under  certain  circumstances,  be  terminated  by 
the  act  of  one  or  other  of  the  parties,  as  by  revocation  of  the 
agency  by  the  principal,  or  its  renunciation  by  the  agent. 

It  is  now  proposed  to  consider  each  of  these  cases  and  deter- 
mine when  and  under  what  conditions  each  party  may  exercise 
this  right. 


*&' 


L    Bevocation  hy  the  Principal. 

A.  Private  Agency. 

§  204.  Q-eneral  Rule— As  between  Principal  and  Agent,  Author- 
ity is  revocable  at  any  Time  if  not  coupled  with  an  Interest. 

The  authority  of  the  agent  to  represent  the  principal  depends 

>  Short  V.  Millard,  68  111.  292.  » Benoit    t.     Conway,     10    Allen 

sDouvielle  v.  Supervisors,  40  Mich.      (Mass.)  528. 
686.  *  Ahern  «.  Baker,  34  Minn.  98. 

132 


Chap.  Yir,]  TERMINATION    OF    THE    KELATION.  §  20i. 

upon  tlie  will  and  license  of  the  latter.  It  is  the  act  of  the  prin- 
cipal which  creates  the  authority ;  it  is  for  his  benefit  and  to  sub- 
serve his  purposes,  that  it  is  called  into  bein^^ ;  and,  unless  the 
agent  has  acquired  with  the  authority  an  interest  in  the  subject- 
matter,  it  is  in  the  principal's  interest  alone  that  the  authority  is 
to  be  exercised.  The  agent,  obviously,  except  in  the  instance 
mentioned,  can  have  no  right  to  insist  upon  a  further  execution 
of  the  authority  if  the  principal  himself  desires  it  to  terminate.' 

It  is  the  general  rule  of  law,  therefore,  that  as  between  the 
agent  and  his  principal,  the  authority  of  the  agent  may  be  re- 
voked by  the  principal  at  his  will  at  any  time,  and  with  or  with- 
out good  reason  therefor,  except  in  those  cases  where  the  author- 
ity is  coupled  with  a  sufficient  interest  in  the  agent.*  And  this  is 
true  even  though  the  authority  be  in  express  terms  declared  to  be 
"  exclusive"  '  or  "irrevocable."*  But  although  the  principal  has 
the  power  thus  to  revoke  the  authority,  he  may  subject  himself 
to  a  claim  for  damages  if  he  exercises  it  contrary  to  his  express 
or  implied  agreement  in  the  matter. 

An  agency  is  sometimes  said  to  be  irrevocable  when  it  is  con- 
ferred for  a  valuable  consideration.  It  is  believed,  however, 
that  this  is  only  another  form  of  stating  the  general  rule  that  it 
must  be  coupled  with  an  interest. 

This  right  to  revoke  exists  when  the  State  is  the  principal  as 
well  as  when  the  principal  is  a  private  individual.' 

*Huut  V.   Rousmanier,   8  Wheat.  236;  Simpson  ».  Lamb,  84  Eng.  Com. 

(U.  S.)  201;  State  «.  Walker,  88  Mo.  L.  603;  Creager  b.  Link,  7  Md.  259; 

379.  Hartshorne  v.  Thomas,  —  N.  J.  Eq. 

sPosten  V.   Rassette,  5    Cal.    467;  — ,  10  Atl.  Rep.  843;  Kirk  v.  Hart- 
Hynson  v.  Noland,  14  A.rk.  710;  Barr  man,  63  Penn.  St.  97;  Coffin  v.  Lan- 
V.  Schroeder,  82  Cal.  609;  Bonney  t>.  dis,  10  Wright  (Penn.)  426. 
Smith,  17  111.  531;   Hutchins  «.  Heb-  'Chambers  v.    Seay,   supra.     Con- 
bard,  34  N,   Y.    24;    Brookshire  ®.  tract  to  give  an  agent  the  "exclusive" 
Voncannon,    6    Ired.   (N.    C.)    231;  agency  in  certain  territory,  does  not 
Wheeler  ».   Knaggs,    8    Ohio,    169;  prevent    the    principal  from  selling 
Hartley's  Appeal,  53  Penn.   St.  213;  there.       Packing    Co.     v.     Farmers' 
Blackstone  v.   Buttermore,    Id,  266;  Union,  55  Cal.  606. 
Brown®.  Pforr,  88  Cal.  550;  Shiff  v.  <  Chambers  «.  Seay;   Blackstone  v. 
Lesseps,  23  La.  Ann.  185;  Chambers  Buttermore,  sw/jra;  Frink  c.  Roe,  70 
V.  Seay,  73  Ala.  373;  Tucker  v.  Law-  Cal.  296;   McGregor  v.   Gardner,  14 
rence,  56  Vt.  467;  Simpson  v.  Carson,  Iowa,  326;  Walker®.  Denison,  86  IlL 
11  Oregon,  361;  Darrow®.  St.  George,  142;  Attrill  v.  Patterson,  supra. 
8  Col.    593;    Hunt    v.    Rousmanier,  » State  t).  Walker,  88  Mo.  279. 
tupra;   Attrill  v.   Patterson,  58  Md. 

133 


§   205.  THE    LAW    OF    AGENCY.  [Book  I. 

8  205.  What  Interest  snflaeient.  What  interest  in  the  agent 
will  be  sufficient  to  render  the  authority  irrevocable  is  not  easy 
of  exact  and  comprehensive  definition.  Certain  it  is,  however, 
that  it  is  not  any  interest  which  will  suffice.*  But  it  must  be  an 
interest  or  estate  in  the  thing  itself  or  in  the  property  which  is 
the  subject  of  the  power ;  the  power  and  the  estate  must  be 
united  and  co-existent,  and,  generally,  of  such  a  nature  that  the 
power  would  survive  the  principal  in  such  a  way  as  to  be  capable 
of  execution  in  the  agent's  name  after  the  death  of  the  princi- 
pal.* 

8  206.  Same  Subject— Instances.  In  the  following  cases  the 
accent  has  been  held  to  have  such  ah  interest  in  the  power  as  to 
render  it,  to  the  extent  of  the  agent's  interest,  irrevocable  at  the 
will  of  the  principal :  Where  the  agent  has  autliority  to  collect  a 
debt  and  out  of  the  proceeds  to  reimburse  himself  for  advances 
made  by  him  to  the  principal ;  •  where  the  authority  is  given  to 
the  agent  to  sell  real  or  personal  property  and  apply  the  proceeds 
in  payment  of  a  debt  due  him  from  the  principal ;  ♦  where  the 
authority  forms  a  part  of  the  contract  and  is  given  as  security  for 
money  or  to  effectuate  a  security ; '  or  where  it  is  conferred  to 
enable  the  agent,  as  for  instance  a  factor,  to  reimburse  himself 
for  prior  advances  ;•  and  where  it  is  given  to  indemnify  a  surety 
against  loss.'' 

8  207.  What  Interest  not  sufficient— Instances.  But  a  mere 
interest  in  the  results  or  proceeds  of  the  execution  of  the  au- 
thority, as  by  way  of  compensation,  is  not  enough. 

Thus  where  one  is  given  authority  to  sell  the  lands  or  other 

» Chambers  e.  Seay,  73  Ala.  373.  'Hunt  v.   Rousmanier,   8  Wheat. 

sHunt    v.   Rousmanier,   8  Wheat.  (U.    S.)  175;  Walsh  v.    Whitcomb,  2 

(U.    S.)  175;    Blackstone  v.   Butter-  Esp.  565;    Drinkwater  v.   Goodwin, 

more,  53   Penn.    St.    266;  Bonney  v.  Cowp.  251;   Beecher  v.  Bennett,  11 

Smith,  17111.  531;  Mansfield  v.  Mans-  Barb,  (N.  Y.)  380;  Hutchins  v.  Heb- 

field,  6  Conn.  559;  Raleigh  v.  Atkin-  bard,  34  N.  Y.  27;  Knapp  v.  Alvord, 

son,  6  M.   &   W.    670;  Chambers  v.  10  Paige  (N.   Y.)  Ch.    205,   40  Am. 

Seay     supra;    Attrill  «.    Patterson,  Dec.  241;    Evans  «.    Fearne,   16  Ala. 

,^^^«.  689,  50  Am.  Dec.  197. 

•  Marizou  v.   Pioche,   8  Cal.    523;  'Smart  v.    Sanders,   6  C.    B.  895; 

Postin  V,  Rassette,  5  Cal.  467.  Raleigh  v.  Atkinson,  6  M.  &  W.  570; 

«Gaussen  v.  Morton,  10  B.   &  C.  De  Comas  ».  Prost,  3  Moore,  P.  C.  N. 

731;  Watson  «.    King,  4  Cowp.  272;  S.  158. 

Barr  v.  Schroeder,  33  Cal.  609.  'Hynson  «.  Noland,  U  Ark.  710. 

134 


Chap.  YII.]  TERMINATION    OF   THE   RELATION.  §  208. 

property  of  another,  and  is  to  have  a  certain  commission  or  share 
out  of  the  proceeds  for  making  the  sale,  the  authority  may  be 
revoked  at  the  will  of  the  principal,  even  though  in  terms  it  was 
declared  to  be  exclusive  or  irrevocable ;'  and  so  where  one  was 
authorized  to  collect  a  debt  and  was  to  have  one-half  of  what  he 
collected  for  his  services,  the  power  was  held  not  to  be  coupled 
with  a  sufficient  interest  and  was  therefore  revocable  by  the  prin- 
cipal at  will.*  The  interest  in  the  commissions  to  be  earned  and 
in  the  moneys  expended  in  endeavoring  to  carry  out  the  agency, 
is  not  sufficient  to  prevent  revocation.  And  so  a  mere  power  of 
attorney  to  confess  judgment  in  favor  of  a  third  person  not 
shown  to  have  been  executed  on  any  consideration  or  to  have 
been  given  as  a  security  for  any  demands  or  to  render  a  security 
effectual,  is  revocable  at  the  will  of  the  principal.* 

§  208.  Same  Subject— Bare  Powers.  A  bare  power,  not  con- 
nected with  any  interest  in  the  agent,  may,  therefore,  be  revoked 
without  liability  at  any  time  before  its  execution.  Thus  where  a 
debtor,  or  one  on  his  behalf,  without  consideration,  deposits 
money  with  another  to  be  paid  to  a  creditor  of  the  debtor,  or  to 
compromise  an  action  against  him,  the  relation  of  principal  and 
agent  arises  between  the  debtor  and  the  person  with  whom  the 
money  is  so  deposited.  In  such  a  case  the  money  remains  the 
property  of  the  principal  and  he  may  revoke  the  authority  at  any 
time  until  the  agent  has  actually  paid  the  money  to  the  creditor, 
or  until  the  agent  has  given  and  the  creditor  has  taken  credit  for 
it.*  And  any  disposition  of  the  money  by  the  debtor,  before 
such  payment  or  credit,  inconsistent  with  the  appropriation  first 
intended,  as  by  an  assignment  for  the  benefit  of  creditors,  will 
operate  as  a  revocation.'     So  a  deposit  of  stock  with  the  officers 

'Chambers  e.  Seay,  73  Ala.  372;  sHartley'sAppeal,  supra;  Flanagan 

Barr  v.  Schroeder,  33  Cal.  609;  Hart-  v.  Brown,  70  Cal.  354. 

ley's  Appeal,  53  Penn.  St.  313;   Gil-  » Evans  ».  Fearne,  16  Ala.    689,  50 

bertD.  Holmes,  64 '111.  550;  Hunt  «.  Am.    Dec.    197;    Woodruff    v.    Du- 

Rousmanier,   8   Wheat.  (U.   8.)  175;  buque,  &c.,  R.  R.  Co.,  30  Fed.  Rep. 

Darrow  v.    St.    George,   8   Col.    609;  91. 

Simpson©,  Carson,  11  Oregon,  361;  « Howard  College  v.  Pace,  15  Ga. 

Blackstone  v.  Buttermore,  53  Penn.  486;  Phillips  c.  Howell,  60  Ga,   411; 

St.  366;  Bonney  t>.  Smith,  17  111.  531;  Simonton  v.  First  National  Bank,  24 

Brown  v.  Pforr,  38  Cal.  550;  Frink  v.  Minn.  216. 

Roe,  70  Cal.  296.  •  Simonton  v.  First  National  Bank, 

supra. 

135 


R  209.  THE   LAW    OF    AGENCY.  [Book  I. 

of  a  corporation  to  enable  it  to  be  voted  upon  and  sold,  is  but  a 
bare  power  and  may  be  revoked  at  any  time  before  sale.' 

§209.  Power  to  revoke— How  distinguished  from  RigM  to 
revoke.  Wliere,  then,  the  authority  is  not  coupled  with  an  in- 
terest, the  principal  has  the  power  to  revoke  it  at  his  will  at  any 
time.  But  this  power  to  revoke  is  not  to  be  confounded  with  the 
right  to  revoke.  Much  uncertainty  has  crept  into  text  books 
and  decisions  from  a  failure  to  discriminate  clearly  between  them. 

Except  in  those  cases  where  the  authority  is  coupled  with  an 
interest,  the  law  compels  no  man  to  employ  another  against  his 
will.  As  it  has  been  seen,  the  relation  of  the  agent  to  his  prin- 
cipal is  founded  in  a  greater  or  less  degree  upon  trust  and  confi- 
dence. It  is  essentially  a  personal  relation.  If  then  for  any 
reason  the  principal  determines  that  he  no  longer  desires  or  is 
able  to  trust  and  confide  in  the  agent,  it  is  contrary  to  the  policy 
of  the  law  to  undertake  to  compel  him  to  do  so.  Trust  and  con- 
fidence come  at  no  man's  command,  nor  can  the  decree  of  a  court 
arouse  and  keep  in  life  those  sentiments  and  feelings  which  are 
based  upon  our  natural  human  instincts.  It  is  the  rule  of  law, 
therefore,  that  contracts  of  agency,  like  those  creating  other  per- 
sonal relations,  will  not  be  specifically  enforced.'  Nor  does  it 
make  any  difference  in  this  view,  that  the  principal  has  expressly 
agreed  that  he  will  continue  to  confide  in  the  agent  for  a  definite 
period.  It  is  no  less  difiicult,  on  that  account,  to  coerce  compli- 
ance. Confidence,  like  "  honest  instinct,"  only  "  comes  a  volun- 
teer." The  law,  therefore,  leaves  the  principal  in  such  cases  to 
determine  for  himself  how  long  the  relation  shall  continue. 

This,  then,  is  what  is  meant  when  it  is  said  that  the  principal 
may  revoke  the  authority  at  any  time. 

But  it  by  no  means  follows  that,  though  possessing  the  power, 
the  principal  has  the  right  to  exercise  it  without  liability  regard- 
less of  his  contracts  in  the  matter.  It  is  entirely  consistent  with 
the  existence  of  the  power  that  the  principal  may  agree  that  for 
a  definite  period  he  will  not  exercise  it,  and  for  the  violation  of 
such  an  agreement  the  principal  is  as  much  liable  as  for  the 
breach  of  any  other  contract.  •  It  is  in  this  view,  therefore,  that 
the  question  of  the  right  to  revoke  the  authority  arises. 

»  Woodruff  V.  Dubuque,  «&c. ,  R.  R.  This  subject  will  be  more  fully  treated 
Co.  30  Fed.  Rep.  91.  in  §  615,  post. 

'See  Waterman  on  Spec.  Per.  §  33.  » See  post,  §§  620-635. 

136 


Chap.  YIL]  TERMINATION    OF   THB   RELATION.  §  210. 

§  210.  When  Right  to  revoke  exists.  Where  no  express  or 
implied  agreement  exists  that  the  agent  shall  be  retained  for  a 
definite  time  the  power  and  tlie  right  of  revocation  coincide.  Such 
employments  are  deemed  to  be  at  will  merely  and  may  therefore 
be  terminated  at  any  time  by  either  party  without  violating  con- 
tract obligations  or  incurring  liability.^  The  law  presumes  that 
all  general  employments  are  thus  at  will  merely,  and  the  burden 
of  proving  an  employment  for  a  definite  period  rests  npon  him 
who  alleges  it. 

It  is  not  uncommon  to  provide  that  the  agency,  although  other- 
wise for  a  definite  period,  shall  cease  or  may  be  terminated  by 
either  party  upon  the  happening  of  a  certain  event  or  the  arising 
of  a  certain  contingency,  and  when  the  agency  does  so  cease,  or 
is  so  terminated,  no  liability  attaches  to  either  party.  Thus  it  is 
competent  to  provide  that  the  relation  shall  continue  only  so  long 
as  one  or  either  of  the  parties  is  satisfied,  and  where  such  is  the 
agreement,  the  dissatisfaction  of  the  party  to  be  satisfied,  if  it  be 
honajide,  is  a  sufficient  ground  for  terminating  the  relation  with- 
out liability.* 

So  there  are  certain  implied  conditions  which  enter  into  every 
contract  of  agency,  for  a  violation  of  which  the  principal  may 
rightfully  revoke  the  authority.  The  most  important  of  these 
are  those  which  relate  to  the  questions  of  the  agent's  ability  to 
perform  the  appointed  service,  and  the  fidelity  with  which  he 
employs  the  powers  entrusted  to  him. 

But  where  the  agent  has  been  employed  for  a  fixed  period  the 
agency  cannot  be  rightfully  terminated  before  the  expiration  of 
that  period  at  the  mere  will  of  the  principal,  but  only  in  accord- 
ance with  some  express  or  implied  condition  of  its  continuance. 
Any  other  termination  of  such  an  agency  by  the  act  of  the  prin- 
cipal will  subject  him  to  liability  to  the  agent  for  the  damages 
he  has  sustained  thereby.*  The  principal  will  also  be  liable  to 
the  agent  for  his  compensation  up  to  the  time  of  the  wrongful 
revocation  and  for  any  liabilities  and  expenses  which  the  agent 

*Kirk».  Hartman,  63  Penn.  St.  97;  « Tyler  «.  Ames,   6  Lans.  (N.  Y.) 

Coffin  c.    Landis,   10  "Wright  (Penn.)  280;    Adriance    v.     Rutherford,    57 

426;  Jacobs  v.  Warfield,  23  La.  Ann.  Mich.  170;  Hotchkiss  v.  Gretna  Gin. 

895.     See  generally  upon  this  subject  &  Compress  Co.  36  La.  Ann.  517. 

post,  §  616.  »  See  post,  §§  620-623. 

137 


§211. 


THE   LAW    OF    AGENCY.  [Book  I. 


has  fairly  and  in  good  faith  incurred  on  the  principal's  account 
in  the  execution  of  the  authority  before  its  revocation.' 

§  211.  "What  amounts  to  Contract  for  definite  Time— Unilat- 
eral Agreements.  It  is,  in  many  cases,  difficult  to  determine 
whether  the  parties  have  made  a  definite  agreement  for  a  fixed 
time  or  not.  It  is  not  indispensable  that  they  should,  in  the  first 
instance,  be  both  bound  for  the  same  period.  It  may  lawfully  be 
made  to  rest  with  either  party  to  determine,  at  his  option,  that 
the  agreement  shall  be  one  for  a  certain  time.  So  it  has  been 
held  that  the  appointment  of  an  agent  to  do  certain  acts  during 
a  given  period  does  not,  of  itself,  amount  to  an  agreement  that 
he  should  be  permitted  to  continue  to  act  during  that  period. 

Thus  where  an  agent  agreed  to  transport  all  the  goods  that 
might  be  "  presented  to  him  "  for  that  purpose  during  one  year, 
but  the  principal  did  not  expressly  agree  to  furnish  any  goods  for 
transportation,  it  was  held  that  the  agreement  was  binding  upon 
the  agent  only,  and  that  the  principal  might,  at  any  time,  refuse 
to  furnish  any  goods,  and  thus,  practically,  terminate  the  agency 
during  the  year  without  liability  ; '  and  so  where  the  owner  of 
coal  mines  appointed  agents  for  the  sale  of  the  coal  at  Liverpool 
for  seven  years,  but  did  not  agree  to  furnish  them  any  coal  to 
sell  during  that  period,  it  was  held  that  the  owner  might  sell  his 
mines  and  terminate  the  agency  even  though  the  seven  years  had 
not  expired,  without  liability  to  the  agents.'     So  where  a  travel- 

*  See  poHt,  g§  620-622.  facturing  cement.     Held,  on    action 

«  Burton  v.  Great  Northern  Ry  Co.  brought  by  A  assigning  as  a  breach  of 

9  Excbeq.  507.  this  agreement    that  B    wrongfully 

» Rhodes  v.  Forwood,  L.  R.  1  App.  discharged  him,   the  plaintiff,  from 

Cas.  256,  15  Eng.   Rep.    (Moak)   124.  his  service,  and  from  manufacturing 

See  also  Churchward  «.The  Queen.  L.  cement  for  the  use  of  the  defendant, 

R.  1  Q.  B.  173;  Ex  parte  Maclure,  L.  and  from  any  longer  instructing  the 

R.  5  Ch.  737.  plaintiff  in  the  art  of  manufacturing 

So  where  it  was  agreed  between  A  cement,  before  the  expiration  of  frwo 
and  B  that  A  should  manufacture  years  from  the  agreement,  that  this 
cement  for  the  use  of  B  of  a  speci-  agreement  did  not  raise  an  implied 
fied  quality;  that  B  should  pay  A  a  contract  of  hiring  and  service  for 
certain  weekly  sum  for  two  years  three  years  between  the  parties,  and 
from  the  agreement,  and  another  therefore  the  action  was  not  main- 
weekly  sum  for  one  year  after,  and  tainable.  Aspdin  «.  Austin,  1  Dav. 
should  receive  A  into  partnership  in  &  M.  515;  8.  c.  5  Q.  B.  671.  48  Eng. 


the  business  of  manufacturing  cement      Com.  Law  Rep.  671,  s.  o.  5  A.  &  E. 

^      6 

i- 

138 


at  the  end  of  three  years;  and  that  A      671. 

should  instruct  B  in  the  art  of  manu-  So  where  it  appeared  that  by   in- 


Chap.  Yil.l  TERMINATION    OF    THE    RELATION.  §  211. 

ing  salesman,  "in  consideration  of  the  sum  of  $2,100  for  the 
year  1873,  and  $2,400  for  the  year  1874,  to  be  paid  in  semi- 
monthly or  monthly  installments,  agreed  to  devote  his  whole  time 
and  attention  solely  to  the  interests  of"  a  certain  firm,  and 
entered  into  their  service  and  continued  until  Jane  11,  1873,  at 
which  date  the  firm  became  bankrupt  and  suspended  business, 
and  the  salesman  was  discharged,  it  was  held,  in  an  action 
brought  by  the  salesman  to  recover  damages  for  his  discharge, 
that  the  contract  contained  no  undertaking  on  the  part  of  the 
firm  to  retain  or  continue  him  in  their  employ  for  any  definite 
term  and  that  hence  he  could  not  recover.  Said  Scott  J.:  "  Their 
undertaking  is  to  pa}'  him  at  a  certain  rate  of  compensation,  if 
he  shall  discharge  the  duties  assumed  by  him  to  be  performed. 
No  doubt  it  is  true  each  party  contracted  on  the  supposition 
the  business  would  continue  through  the  space  of  two  years,  but 
appellants'  firm  did  not  obligate  themselves  to  continue  it  for 
that  length  of  time.  As  a  matter  of  fact,  it  terminated  much 
sooner.  We  have  no  authority  to  add  to  the  contract  as  the  par- 
ties have  made  it,  enlarging  the  liability  of  either  one  of  them, 
and  have  no  disposition  to  do  so." ' 

But  where  one  had  been  appointed  general  agent  of  a  life 
insurance  company  for  five  years,  but  without  any  express  agree- 
ment on  the  part  of  the  company  to  employ  him  for  any  definite 
period,  and  the  company,  after  the  time  had  partly  expired,  be- 
came insolvent,  abandoned  the  business  and  discharged  the  agent, 

denture  between  defendant  of  the  that  he  and  the  plaintiff  performed 
first  part,  J.  D.  son  of  plaintiff,  of  the  their  part  of  the  agreement,  and  were 
eecond  part,  and  plaintiff  of  third  ready  and  willing  to  continue  such 
part,  plaintiff,  covenanted  that  hia  performance  during  the  term.  And 
son  should  be  assistant  to  the  de-  the  breach  alleged  was  that  defend- 
fendant,  a  dentist,  for  five  years,  and  ant  refused  to  permit  the  son  to  con- 
do  all  such  service  as  defendant  tiuue  in  the  service  and  dismissed 
should  order  to  be  performed  in  the  him. 

way  of  his  art;  and  that  defendant.  It  was  held  there  was   no  implied 

for  the  services  to  be  done  by  the  son,  covenant  by  the  defendant  to  retain 

covenanted  during  the  term,  and  in  the  son  in  the  service  during?  the  five 

case  the  son  should  perform  his  part  years.     Dunn  v.  Sayles,  1  Dav.  &  M. 

of  the  agreement,  that  he,  defendant  579;  s.  c.  5  Q.  B.  G85,  s.  c.  5  A.  &  E. 

would    pay    the    son  a  certain  sum  685. 

■weekly  during  the  terra  as  compensa-  '  Orr  v.  Ward,   73   111    318,  citing 

tion  for  the  services  aforesaid.     That  Williamson  v.  Taylor,  5  A.  &  E.  175, 

the  son  entered  upon  the  service,  and  and  Aspdin  v.  Austin,  supra. 

139 


§  211.  '/HE    LAW    OF    AGENCY.  [Book  I. 

a  different  conclusion  was  reached.  In  an  action  brought  by  the 
agent  to  recover  damages  for  the  discharge,  it  was  argued  on 
behalf  of  the  defendant  that  by  the  terms  of  the  contract  sued 
on,  the  plaintiff  was  merely  appointed  agent  for  the  company  for 
five  years,  and  as  the  company  did  not  expressly  bind  itself  to 
continue  in  business  for  that  length  of  time,  its  inability  to  act 
and  execute  the  whole  stipulation  on  its  part  constituted  no 
breach.  But  it  was  said  in  reply  by  the  learned  judge  who  ren- 
dered the  opinion  of  the  court:  "It  is  true  there  was  no  positive 
and  direct  covenant,  on  the  part  of  the  company,  to  carry  on  the 
business  for  any  definite  time.  But  the  plaintiff  agreed  to  act 
exclusively  for  the  company  for  the  period  of  five  years,  and 
had  he  neglected  or  failed,  he  would  have  been  liable  in  damages. 
If  be  was  bound  for  that  length  of  time,  it  necessarily  follows 
that  the  company  must  also  have  been  bound,  for  mutuality 
was  essential  to  the  validity  of  the  agreement.  It  very  frequently 
happens  that  contracts  on  their  face  and  by  their  express  terms 
appear  to  be  obligatory  on  one  party  only ;  but  in  such  cases 
if  it  be  manifest  tliat  it  was  the  intention  of  the  parties,  and 
the  consideration  upon  which  one  party  assumed  an  express  obli- 
gation, that  there  should  be  a  corresponding  and  correlative 
obligation  on  the  other  party,  such  corresponding  and  correlative 
obligation  will  be  implied.  As,  if  the  act  to  be  done  by  the  party 
binding  himself  can  only  be  done  upon  a  corresponding  act  being 
done  or  allowed  by  the  other  party,  an  obligation  by  the  latter 
to  do,  or  allow  to  be  done,  the  act  or  things  necessary  for  the 
completion  of  the  contract  will  necessarily  be  implied.'  When 
the  plaintiff  bound  himself  to  give  his  exclusive  services  to  the 
defendant  for  the  period  of  five  years,  there  was  a  correlative 
and  corresponding  obligation  upon  the  part  of  the  defendant  to 
give  him  employment  and  allow  him  to  pursue  and  execute  the 
terms  of  the  contract.  This  was  manifestly  the  intention  of  the 
parties. 

"  The  defendant's  insolvency  or  inability  furnished  no  excuse 
for  its  breach  of  the  contract.  Had  it  desired  to  be  exempted 
from  liability  in  such  an  event,  it  should  have  stipulated  for  the 
exemption  upon  the  happening  of  the  contingency.  The  criterion 

•Citing,  Pordage  v.  Cole,  1  Wm.  Queen,  6  B.  &  S.  807;  Black c.  Wood- 
Saund.    319;    Churchward    e.     The      row,  39  Md.  194. 

140 


Chap.   VII,]  TERMINATION    OF    THE    RELATION.  §  211. 

of  dam  a  ores  would  be  to  ascertain  how  much  the  plaintiff  has  lost 
by  tlie  defendant's  breach  of  the  contract."' 

Mutuality  under  Statute  of  Frauds. — Cases  under  this  head 
frequently  arise  in  which  the  Statute  of  Frauds  becomes  an  im- 
portant element.  Thus  in  a  recent  case'  it  appeared  that  the 
defendants  had  entered  into  a  written  contract  with  the  plaintiff 
as  follows : 

"We  promise  and  agree  to  pay  Thomas  Wilkinson  wages  or 
salary  at  the  rate  of  $3,500  a  year  for  three  3'ears  from  the  sec- 
ond day  of  October,  1882,  in  consideration  of  his  working  for  us 
that  length  of  time  as  cutter  in  our  merchant  tailoring  depart- 
ment in  the  city  of  East  Saginaw,  Michigan.  Payments  to  be 
made  as  earned,  in  such  sums  and  at  such  times  as  he  may  desire. 

"  Dated  October  14,  1882. 

"Heavenrich  Bros.  &  Co." 

Plaintiff  alleged  that  he  entered  upon  and  continued  in 
the  employment  under  the  contract  until  on  or  about  July  5, 
1884,  when  he  was  discharged  without  cause  and  against  his  pro- 
test. On  July  8,  he  wrote  to  defendants,  saying  :  "  1  hereby 
protest  against  your  attempt  to  cancel  our  contract.  I  hold  your 
written  agreement  for  a  three  years'  term  of  service,  from  Octo- 
ber 2d,  1882,  That  contract  I  am  ready  and  willing  to  perform 
on  my  part,  and  I  hereby  offer  to  continue,  and  request  you  to 
furnish  me  employment  under  the  terms  of  that  agreement." 

In  an  action  brought  to  recover  damages  for  the  discharge,  the 
trial  judge  held  that  as  the  plaintiff  had  not  also  signed  the  con- 
tract, it  was  not  binding  as  to  liira  under  the  Statute  of  Frauds; 
and  that  as  he  was  not  bound  to  stay  three  years,  there  was  no 
mutuality  in  the  agreement  and  that  hence  the  defendants  were 
not  bound.  A  verdict  was  therefore  directed  for  the  defend- 
ants, and  plaintiff  appealed. 

In  delivering  the  opinion  of  the  court,  Champlin,  J.,  said: 
"  The  conflict  of  authority  upon  questions  of  the  kind  raised 
upon  this  record  is  truly  bewildering,  and  the  cases  are  incapable 
of  being  reconciled  with  each  other ;  a  large  and  respectable  class 
holding  that  a  contract  which   the  Statute  of   Frauds  declares 

*  Wagner,   J.    in  Lewis  «.  Atlas  contract.     See  Vanuxem ».  Bostwick, 

Mut.  L.    Ins.  Co.,  61   Mo.  534,   538.  —  Penn.  St.  — ,  7  Atl.  Rep.  598. 

That  the  principal's   insolvency  fur-  "Wilkinson      v.     Heavenrich,     58 

nishes  no  excuse  for  a  breach  of  the  Mich.  574,  55  Am.  Rep.  708. 

141 


§211. 


THE    LAW    OF    AGENCY. 


[Book  I. 


shall  not  be  valid  unless  in  writing  and  signed  by  the  party  to  be 
charged  therewith,  need  only  to  be  signed  by  the  party  defend- 
ant in  the  suit,  and  that  it  is  no  objection  to  maintaining  such 
suit  and  recovering  upon  sucli  contract,  that  the  other  party  did 
not  also  sign  and  was  not  bound  by  its  terms.*  Another  and 
equally  respectable  class  of  jurists  hold  that  unless  the  party 
bringing  the  action  is  bound  by  the  contract,  neither  is  bound 
because  of  the  want  of  mutuality.* 

"I  shall  not  attempt  a  reconciliation  where  reconciliation  is 
impossible  ;  but  as  the  question  is  new  in  this  State,  the  court  is 
left  to  adopt  such  view  as  appears  to  rest  upon  principle.  It  is  a 
general  principle  in  the  law  of  contracts,  but  not  without  excep- 
tion, that  an  agreement  entered  into  between  parties  competent 
to  contract,  in  order  to  be  binding,  must  be  mutual ;  and  this  is 
especially  so  when  the  consideration  consists  of  mutual  promises. 
In  such  cases,  if  it  appears  that  one  party  never  was  bound  on  his 
part  to  do  the  act  which  forms  the  consideration  for  the  promise 
of  the  other,  the  agreement  is  void  for  want  of  mutuality.* 

"  Such  was  the  case  here.  The  consideration  consisted  of 
mutual  promises  of  the  parties,  not  to  be  performed  within  a 
year  from  the  making  thereof.     The  defendants'  promise  was  in 


*  Citmg,2  Kent's  Com.  510;  2  Stark. 
Ev.  614;  Smith's  Appeal,  69  Penn.  St. 
480;  Tripp  v.  Bishop,  56  Penn.  St. 
424;  Perliins  v.  Hadsell.  50  111.  217; 
Old  Colony  R.  R.  Corp.  v.  Evans,  6 
Gray  (Mass.) 31, 66  Am.  Dec.  394;  Wil- 
liams o.  Robinson,  73  Me.  186,  40  Am. 
Rep.  352.  See  also  Mason  v.  Decker, 
72  N.  Y.  595,  28  Am.  Rep.  190;  Jus- 
tice V.  Lang.  42  N.  Y.  403,  1  Am. 
IJep.  576;  Shirley  ».  Shirley,  7  Blackf. 
(lad.)  452;  Douglass  v.  Spears,  2  N. 
&  McC.  (S.  C.)  207;  10  Am.  Dec.  588; 
Morin  v.  Martz,  13  Minu.  191;  An- 
derson V.  Harold.  10  Ohio,  399;  Bars- 
tow  V.  Gray,  3  Greenl.  (Me.)  409; 
Allen  V.  Bennett.  3  Taunt,  175;  Lay- 
thoarp  ».  Bryant,  2  Bing.  N  C.735; 
Saunderson  v.  Jackson,  2  Bos.  &  Pal. 
238. 

« Citing.  Lees  v.  Whitcomb.  3  C.  & 
P.  289;   Sykest).  Dixon,  9  Ad.  &  El. 


693,  36Eng.  Com.  L.  366;  Krohn  r. 
Bantz,  68  Ind.  277;  Stiles  v.  McClel- 
land, 6  Col.  89;  and  as  bearing  upon 
the  question.  Hall  v.  Soule,  11  Mich. 
496;  Scott  v.  Bush,  26  Mich.  418;  Lid- 
die  V.  Needham,  39  Mich.  147,  Mc- 
Donald V.  Bewick,  51  Mich.  79.  See 
also,  Corbitl  v.  Salem  Gaslight  Co.  6 
Orcg.  405,  25  Am.  Rep.  541  and  note. 
'Citing,  Hopkins  v.  Logan,  5  M.  & 
W.  241;  Dorsey  v.  Packwood,  12 
How.  (U.  S.)  126;  Ewins  v.  Gordon, 
49  N.  H.  444;  Hoddesdon  Gas  Co.  v. 
Haselwood,  6  C.  B,  (N.  S.)  239; 
Snuch  V.  Strawbridge,  2  M.  G.  &  S. 
808;  Callis  v.  Bothamly,  7  Wk.  Rep. 
87;  Sykes  v.  Dixon,  9  Ad.  &  El.  693; 
Addison,  Cont.  §  18;  Parsons,  Cont. 
449;  Utica,  &c.  R.  Co.  v.  Brincker- 
hoff,  21  Wend.  (N  Y.)  139;  Lester  r. 
Jewett,  12  Barb.  (N.  Y.)  502. 


142 


Cliap.  VII.]  TERMINATION    OF    THE    RELATION.  §  212. 

writing,  and  signed  by  them  ;  but  the  plaintiffs  promise  does  not 
appear  in  the  writing  signed  by  tlie  defendants,  nor  was  any  note 
or  memorandum  made  and  signed  by  him  promising  to  labor  for 
defendants  three  years  or  any  lengtli  of  time.  Plaintiff  was 
never  bound  by  the  agreement.  There  never  was,  then,  any 
consideration  to  support  defendants'  promises.  The  agreement 
was  void  for  want  of  mutuality.  The  plaintiff  was  under  no 
legal  obligation  to  work  for  defendants  a  moment  longer  than  he 
chose,  and  the  defendants  were  under  none  to  keep  him  in  their 
employment.  The  plaintiff  could  neither  revive  nor  make  a  con- 
tract with  defendants  after  he  was  discharged  by  them,  without 
their  consent  and  concurrence.  The  letter  written  after  he  was 
discharged  was  of  no  avail." 

The  weight  of  authority,  however,  seems  to  be  against  the  view 
taken  by  the  court  in  this  case  as  to  the  necessity  of  the  signing 
by  both  parties.' 

§  212.  Same  Subject— When  definite  Time  will  be  implied. 
But  a  contract  to  retain  the  agent  for  a  definite  time  will  be  im- 
plied, although  not  clearly  expressed,  where  from  the  facts  and 
circumstances  surrounding  the  case,  such  appears  to  have  been 
the  intention  of  the  parties. 

Thus  in  a  leading  case  where  it  appeared  that  the  plaintiff  had 
entered  into  a  contract  with  a  joint  stock  company  whereby  he 
agreed  that  from  a  certain  date  he  would  act  as  the  attorney  and 
solicitor  of  the  company  for  a  salary  of  1001.  a  year,  and  the  com- 
pany on  its  part  agreed  to  retain  and  employ  him  as  such  attor- 
ney and  solicitor  on  the  terms  aforesaid,  it  was  held,  although  no 
time  for  the  continuance  of  the  relation  was  agreed  upon,  that  it 
must  be  construed  to  be  a  retainer  for  at  least  one  year.*  So 
where  an  offer  of  employment  as  superintendent  of  ships  was 
made  by  a  letter  stating  that  the  wages  would  be  one  hundred 
dollars  per  month,  "  and  if  you  give  me  satisfaction  at  the  end  of 
the  first  year,  I  will  increase  your  salary  accordingly,"  it  was  held 
that  this  was  a  contract  for  a  yearly  hiring."  So  a  letter  engaging 
a  person  as  a  hotel  manager  at  a  salary  of  one  hundred  and 
twenty-five  dollars   per  month,  and  showing  upon  its  face  that 

'  See  Wood  on  the  Statute  of  » Morton  v.  Co  well,  65  Md.  359,  57 
Frauds,  §  405,  and  cases  cited.  Am.  Rep.  331. 

»  Emmeus  v.  Elderton,  13  Com.  B. 
495,  76  Eng.  Com,  L.  405. 

US 


§  213.  THE    LAW    OF    AGENCY.  [Book  I. 

the  engagement  contemplated  his  giving  up  another  situation 
and  removing,  with  his  family,  several  hundred  miles  to  a  hotel, 
and  there  undertaking,  besides  the  duties  of  a  manager,  those 
of  secretary  and  treasurer  of  the  hotel  company,  was  held  to  im- 
port an  engagement  for  at  least  a  year.* 

The  mere  fixing  of  the  salary  by  the  year  or  other  interval  is 
not,  however,  enough  to  make  the  employment  one  for  such 
interval,  unless  the  nature  of  the  undertaking  or  the  surrounding 
circumstances  indicate  that  such  was  the  evident  intent  of  the 
parties.' 

A  person  who  has  been  previously  employed  by  the  month,  year 
or  other  fixed  interval,  and  who  is  permitted  to  continue  in  the 
employment  after  the  period  limited  by  the  original  employment 
has  expired,  will,  in  the  absence  of  anything  to  show  a  contrary 
intention,  be  presumed  to  be  employed  until  the  close  of  the  cur- 
rent interval  and  upon  the  same  terms.' 

§  213.  Agency  terminable  for  Agent's  Incompetence.  As  will 
be  seen  hereafter,  there  is  an  implied  covenant  on  the  part  of  every 
agent  that  he  possesses  and  will  exercise  in  the  execution  of  his 
undertaking,  a  reasonable  degree  of  skill,  knowledge  and  ability.* 
If,  therefore,  the  agent,  though  employed  for  a  definite  period, 
proves  not  to  possess  that  reasonable  degree  of  skill,  or,  if  pos- 
sessing it,  he  neglects  or  refuses  to  exercise  it,  the  principal  may 
properly  terminate  his  authority  therefor  without  liability  for  a 
breach  of  the  contract.*  A  fortiori  would  this  be  true  where  the 
covenant  for  competency  was  express  instead  of  implied.  Any 
other  rule  would,  as  can  readily  be  seen,  place  the  principal  at 
the  mercy  of  an  incompetent  agent,  and  compel  him  to  suffer, 
perhaps  for  a  long  period,  a  constant  and  increasing  loss  and 
injury  from  the  inefficiency  of  an  agent  who  had  impliedly,  if  not 
expressly,  warranted  himself  to  be  competent. 

If,  however,  at  the  time  of  the  employment,  the  principal  knew 

«  Smith   «.    Theobald,  —  Ky.  — ,  6  Poor,  58  Mich.  503;  Tallon  «.  Mining 

8.  W.  Rep.  394.  Co.  55  Mich.  147;  Tatterson  v.  Suffolk 

s  Palmer  B.  Marquette  Rolling  Mill  Mnfg.  Co.  106  Mass.  56;  Alba  ».  Mor- 

Co  32  Mich.    274;  Franklin  Mining  iarty.  36  La.  Ann.  680;  McCullough 

Co.  t).  Harris,  24  Mich.  115;  De  Briar  Iron  Co.  v.  Carpenter,  67  Md.  554,  11 

«.  Minturn.  1  Cal,  450;  Tatterson  v.  Atl.    Rep.    176;  Weise  v.  Milwaukee 

Suffolk    Mnfg.    Co.    106    Mass.    56;  County  Supervisors,  51  Wis.  664. 

Haney  x>.  CaldweU,  35  Ark.  156.  *  See  pos^  §§  488-508. 

» Sines  e.    Superintendents  of  the  » See  -post,  §§  618,  488-503. 

144 


Chap.  YII.]  TERMINATION   OF   THE    RELATION.  §  214. 

of  the  agent's  incompetence,  he  could  not  discharge  him  on  that 
ground,  unless  the  incompetence  were  greater  than  the  principal 
knew  or  had  reasonable  grounds  to  suppose.  If  a  man  knowingly 
chooses  incompetent  agents,  he  has  no  reason  to  complain  if  he 
receives  incompetent  service.* 

§  214.  When  Agency  may  bo  terminated  for  Agent's  Miscon- 
duct. It  is  also  an  implied  condition  in  every  contract  of  agency, 
that  the  agent  will  not  wilfully  disobey  or  disregard  the  reason- 
able and  lawful  instructions  of  his  principal;  that  he  will  not 
willingly  permit  to  suffer  his  principal's  interests  committed  to 
his  care  ;  that  he  will  be  honest  and  faithful,  and  will  exercise 
reasonable  care  and  diligence  in  the  performance  of  his  duties  ; 
and  that  he  will  not  intentionally  violate  the  established  princi- 
ples of  morality  or  the  laws  of  the  land.* 

If,  therefore,  the  agent,  though  employed  for  a  definite  time 
violates  this  condition,  the  principal  may  discharge  him  therefor 
without  incurring  liability  on  account  of  such  discharge.' 

This  rule  is  indispensable  for  the  protection  of  the  principal. 
The  agency  is  created  by  him  for  the  furtherance  of  his  interests. 
It  is  his  will  that  is  to  be  executed,  his  object  that  is  to  be 
accomplished.  Within  reasonable  and  lawful  limits,  he  has,  and 
of  necessity  must  have,  the  right  to  determine  the  time,  the 
methods  and  the  means  to  be  employed.  He  has  a  right  to  have 
the  business  performed  in  his  own  way,  if  it  be  a  lawful  way, 
although  the  agent  may  think  or  know  that  there  is  a  very  much 
better  way ;  and  if  the  agent  is  not  willing  to  conform  to  the 
principal's  desires,  he  should  decline  the  agency. 

The  principal  is  also  entitled  to  the  undivided  and  unreserved 
loyalty  of  the  agent.  The  relation,  as  has  been  seen,  is  founded 
upon  trust  and  confidence,  and  cannot  exist  in  its  true  character 
if  the  agent  is  to  be  permitted  to  undermine  or  overreach  his 
principal,  or  to  use  his  position  or  its  opportunities  to  make  gain 
for  himself  at  the  expense  of  his  principal. 

Neither  can  the  principal   be  rightly   required   to  retain  or 

'8eepo«(!,  §§  615-635.  "Chicago,  &c.  Ry.  Co.  «.  Bayfield. 

«C»llo  t>.  Brouncker,  4  C.  &  P.  518;  87  Mich.  205;  Dieringer  v.  Meyer.  42 

Atkin  ©.  Acton.  4  C.  «&P.  208;  Bixby  Wis.  311,  24  Am.  Dec.    415;  Hender- 

V.  Parsons,  49  Conn.  483,  44  Am.  Rep.  son    «.    Hydraulic    Works,  9  Pliila. 

246.  (Penn.)  100. 

10  Uh 


§  215.  THE    LAW    OF   AGENCY.  [Book  I. 

employ  an  agent  who  is  devoid   of  moral  principles  or  who  is 
guilty  of  criminal  acts  or  practices. 

§  215.  Same  Subject— Illiistrations.— In  accordance  with  these 
principles  it  has  been  held  that  where  an  agent  with  power  to 
sell  property,  ran  off  with  it  and,  having  sold  it,  embezzled  the 
proceeds,  such  fraudulent  conduct  of  itself  operated  to  terminate 
the  agent's  authority,'  and  so  where  an  insurance  agent  wrong- 
fully appropriated  and  converted  to  his  own  use,  the  money  of 
his  principal  which  came  into  his  hands  by  reason  of  his  employ- 
ment, it  was  held  that  he  might  lawfully  be  discharged  therefor." 

So  it  is  well  settled  that  if  an  agent  who  has  contracted  his 
entire  time  to  his  principal,  without  the  consent  of  his  principal, 
engage  in  an  employment  or  business  for  himself  or  another, 
which  may  tend  to  injure  his  principal's  trade  or  business,  he 
may  be  lawfully  discharged  before  the  expiration  of  the  agreed 
term  of  service.  This  is  so  because  it  is  the  duty  of  the  agent 
not  only  to  give  his  time  and  attention  to  his  principal's  business, 
but,  by  all  lawful  means  at  his  command,  to  protect  and  advance 
his  principal's  interests.  When  the  agent  engages  in  a  business 
which  brings  him  into  direct  competition  with  his  principal,  the 
tendency  is  to  injure  or  endanger,  not  to  protect  and  promote, 
the  interests  of  the  latter.  And  it  makes  no  difference  in  such  a 
case  that  the  agent  gives  his  whole  time  and  services  to  the  busi- 
ness of  his  principal ;  his  interest  in  the  other  business,  though 
actually  conducted  by  agents  of  his  own,  is  hostile  to  his  princi- 
pal's interests." 

So  where  a  clerk  and  traveling  agent,  employed  by  the  year, 
assaulted  his  principal's  maid  servant  with  intent  to  ravish  her, 


>  Case  V.  Jennings,  17  Tex.  661.  171;  Amor  v.  Fearon,  9  Ad.  &  E.  548; 

« Phcenix  Mut.  L.  Ins.  Co.  v.  Hallo-  Horton  v.   McMurtry,  5  Hurl.  &  N. 

way,  51  Conn.  311,  50  Am.  Rep.  20.  667. 

•Dieringer  v.   Meyer,  42  Wis.  311,  Thus    where    it    appeared    that  a 

24  Am.  Rep.  415,  citing  Singer  v.  Mc-  travelling  salesman    who    had    con- 

Corraick,    4   "W.   &  S.    (Penn.)    265;  tracted    his   entire    time    to  his  em- 

JafEray  c.  King,  34  Md.   217;  Adams  ployer,    had    been    secretly     taking 

Express   Co.    v.   Trego,   35  Md.    47;  orders  for  another  firm,    it  was  held 

Lacy  t>.    Osbaldiston,   8  C.  «&  P.  80;  that  this  would   justify  his  discharge 

Read  v.   Dunsmore,  9   C.  &  P.  588;  though  employed   for  a  fixed  term. 

Nichol  V.  Martyn.  2  Esp    732;  Gard-  Ovvv.  Ward,  73111.  318,  citing  Ridge- 

ner    v.    McCutcheon,    4    Beav.    534;  way  t).  Market  Co.  swpra;  Spotswood 

Ridgway  v.   Market  Co.  8  Ad  &  E.  v.  Barrow.  5  W.  H.  &  G.  110. 

146 


Chap.    VII.]  TERMINATION    OF    THE    RELATION.  §  210. 

it  was  held  that  this  was  a  good  cause  for  his  dismissal  witliout 
notice,  and  that  he  was  not  entitled  to  recover  wages  for  the  time 
he  had  served.*  Tliis  decision  was  based  upon  the  ground  that 
the  agent  by  his  misconduct  had  broken  the  implied  agreement 
which  formed  part  of  the  contract  of  hiring  and  gave  the  princi- 
pal the  right  to  rescind  it.  So  where  an  agent  seduced  the  minor 
daughter  of  his  principal  it  was  held  that  this  was  a  good  cause 
for  his  discharge  and  that  the  principal  might  recoup  against  the 
agent's  claim  for  wages,  the  damages  sustained  by  the  seduction.* 

So  if  the  agent  proves  to  be  wilfully  or  habitually  disobedient 
or  disregardful  of  his  principal's  reasonable  instructions  or  direc- 
tions;' or  if  he  proves  to  be  an  habitual  drunkard,  or  if  he  be- 
comes a  drunkard  to  such  an  extent  as  to  incapacitate  him  for 
the  performance  of  his  undertaking,*  he  may  properly  be  dis- 
charged. And  so  if  he  becomes  a  gambler  upon  the  stock  ex- 
change. 

But  it  is  not  for  every  slight  offense,  or  for  every  default 
causing  no  serious  injury,  that  the  agent  is  to  be  discharged. 
The  question  of  the  sufficiency  of  the  reason  in  such  a  case  is 
ordinarily  one  of  fact  and  law  to  be  determined  from  all  the 
facts  and  circumstances  of  each  particular  transaction.  The  dis- 
obedience of  the  agent  ought  to  be  such  as  to  show  such  a  spirit 
of  insubordination  or  of  reckless  and  careless  disregard  for  proper 
instructions  as  reasonably  to  indicate  that  he  could  not  be  relied 
upon  for  faithful  and  efficient  service.* 

§  216.  How  the  Authority  may  be  revoked.  The  means  by 
which  the  authority  may  be  revoked  are  as  various  as  the  meth- 
ods by  which  it  may  be  conferred.  It  may  be  done  by  a  solemn 
instrument  under  seal,  or  by  a  writing  not  under  seal,  or  by  a 
public  and  formal  announcement  or  proclamation,  or  by  a  simple 

»  Atkin  V.  Acton,  4  C.  &  P.  208.  charging  him.     Newman  v.  TJeagan, 

«  Bixby  V.  Parsons,  49  Conn.  483,  65  Ga.  512. 

44  Am.  Rep.  246.  *McCormick  v.   Demary,   10  Neb. 

3  Ford  V.  Banks,  16  La.  Ann.  119;  515;  Physioc  v.    Shea,    75   Ga.   466; 

Edwards  v.  Levy,  2  Post.  &  Fin.  94;  Nolan  v.  Thompson.  11  Daly  (N.  Y.) 

Callo  V.    Brouncker,  4   C.  &  P.  518.  814;  Bass  Furnace  Co.  v.   Glassco<k, 

Where    an    agent  wilfully  sells    his  82   Ala.    453,    2  South,   Rep.  315,  60 

principal's  goods    for    less    than  the  Am.  Rep.  748. 

fixed  price  or  so  conducts  himself  as  »Pearce  v.  Foster,  7  Q.  B.  Div.  538. 

to  drive  away  his  principal's  custom-  «  Shaver  v.    Ingham,  58  Mich.  649, 

ers,  the  principal   is  justified   in  dis-  55  Am.  Rep.  712. 

147 


§  217.  THE    LAW    OF    AGENCY.  [Book  1. 

and  private  declaration.     It  may  also  be  inferred  from  circum- 
stances. 

The  precise  mode  to  be  adopted  in  any  given  case,  or  tlie  mode 
which,  having  been  adopted,  shall  be  deemed  sufficient  in  such 
case,  is  to  be  determined  largely  by  considering  the  object  with 
which  an  authority  is  revoked.  A  revocation  is  not  effected  by 
the  mere  operation  of  the  principal's  will.  That  will  must  be 
expressed,  and  its  expression  must  be  brought  to  the  attention  of 
those  whom  it  is  desired  to  affect.  This  leads  to  the  necessity  of 
giving  notice  of  the  revocation,  a  question  hereafter  to  be  con- 
sidered. It  will  be  evident,  too,  that  the  mode  adopted  for 
accomplishing  the  revocation  must  not  only  be  co-extensive  with 
the  degree  to  which  by  length  of  time  or  widespread  operations 
or  publicity  of  appointment,  the  knowledge  of  the  authority  hae 
been  disseminated,  but  that  it  must  also  be  adapted  to  the  partic- 
ular means  by  which  such  dissemination  was  effected. 

§  217.  Same  Subject— By  sealed  Inatrumont.  It  is  very  cus 
tomary  to  revoke  a  power  of  attorney  under  seal  by  an  instru- 
ment executed  with  the  same  degree  of  solemnity,  and  the 
statutes  of  many  States  provide  for  giving  constructive  notice  of 
the  revocation  of  a  recorded  power  of  attorney  by  recording  the 
instrument  of  revocation  in  the  same  office  with  the  power.  But 
a  revocation  under  seal  is  not  necessary  even  where  the  authority 
was  conferred  by  deed.  A  parol  revocation  will  suffice,'  and  par- 
ticularly so  when  the  seal  upon  the  power  to  be  revoked  was  super- 
fluous, not  being  required  by  the  nature  of  the  act  to  be  performed.' 

§  218.  Same  Subject  —  Express  Revocation  not  required. 
Neither  is  it  necessary  that  the  revocation,  in  absence  of  a  stat- 
ute requiring  it,  should  be  in  writing,  or  should  be  couched  in 
any  formal  phrase.  It  is  not  necessary  that  the  word  "  revoke," 
or  other  similar  words,  should  be  used.  A  request  to  resign  wil) 
amount  to  a  revocation.  Thus  the  words  "  I  am  very  sorry  to 
have  to  ask  you  to  resign  your  position  "  in  a  letter  from  a  princi- 
pal to  his  agent  were  held  by  the  court  to  be  a  civil  form  but  none 
the  less  a  peremptory  discharge  of  the  agent,  and  that  he  rightly 
treated  it  as  such.* 

>  Brookshire  B.  Brookshire,  8  Ired.  •  Brookshire  c.  Brookshire,  «wpra. 

(N.  C.)  Law,   74,   47  Am.  Dec.  341;         'Jones  c.  Graham,  &c.  Transp.  Co. 
Copeland  v.   Mercantile  Ins.    Co.   6      51  Mich.  539. 
Pick.  (Mass.)  198. 

148 


Chap.   VII.]  TEKMINATION    OF   THE   BELATION.  §  221. 

§  219.  Revocation  may  be  implied.  So  a  revocation  may  be 
implied  from  the  circumstances  of  the  case.  Thus  if  the  powers 
conferred  upon  one  agent  are  subsequently  given  to  another,  it 
will,  in  general,  operate  as  a  revocation  of  the  authority  of  the, 
first,  as  where  a  power  is  given  to  an  agent  to  sell  the  interest  of 
a  principal  in  a  vessel  and  the  principal  afterwards  confers  the 
same  power  upon  the  first  agent  jointly  with  another.'  But  an 
employment  by  written  contract  to  do  a  specified  thing  is  not 
necessarily  revoked  by  a  subsequent  general  employment  to  at- 
tend to  all  the  principal's  business;  *  nor  is  a  power  of  attorney 
executed  by  a  widow  and  heirs  at  law  of  a  decedent  empowering 
the  agent  to  complete  an  engagement  entered  into  by  the  dece- 
dent, necessarily  revoked  by  a  subsequent  grant  of  administration 
to  the  widow ; '  nor  will  a  second  power  given  to  one  of  two  pre- 
viously appointed  agents  necessarily  revoke  the  authority  of  the 
other,  where  the  second  appointment  confers  no  new  or  additional 
authority  in  reference  to  the  subject-matter  of  the  agency ;  *  nor 
will  an  authority  given  by  a  principal  to  an  agent  to  collect  a 
sum  of  money,  be  necessarily  revoked  by  the  mere  appointment  of 
another  agent  to  collect  the  same  sum.* 

§  220.  By  disposing  of  Subject-matter.  Where  the  principal, 
before  the  execution  of  the  authority,  disposes  of  the  subject- 
matter  upon  which  the  agency  was  to  operate,  a  revocation  of  the 
power  will  be  implied.  Thus  if  a  principal  authorizes  an  agent 
to  sell  his  real  estate,'  or  his  interest  in  a  patent,''  but  before  the 
agent  has  found  a  purchaser  the  principal  sells  the  same  himself, 
there  is  nothing  left  to  support  the  agency  and  the  revocation  will 
be  presumed.* 

§  221.  By  Dissolution  of  Partnership  or  Corporation.  So 
where  a  firm  or  corporation  which  has  appointed  an  agent,  is  sub- 
sequently dissolved,  the  dissolution  will  operate  as  a  revocation 
of  the  power ;  •  but  a  mere  change  in  the  name  of  the  firm,  where 

'  Copeland  v.  Mercantile  Ins.  Co.  6  «  Gilbert  v.    Holmes,  64  111.  548; 

Pick.  (Mass.)  198.  Ahern  v.  Baker,  34  Minn.  98. 

2  Smith  V.  Lane.  101  Ind.  449.  ">  Walker  v.  Denison,  86  111.  142. 

•Jones*.    Commercial    Bank,    78  •  BisselU.  Terry,  69  111.  184. 

Ky.  413.  •  Schlater  v.    Winpenny,  75  Penn. 

*  Cushman  v.  Glover,  17  111.  600,  52  St.  321;  Montross  v.  Roger  Williams 

Am.  Dec.  461.  Ins.  Co.  49  Mich.  477;   Whitworth  v. 

s  Davol  V.  Quimby,  11  Allen  (Mass.)  Ballard,  56  Ind.  279;  Meyer  v.  Atkins, 
208. 

149 


§  222  THE  LAW  OF  AGENCY.  [Book  1. 

the  new  firm  is  composed  of  the  same  members  as  the  old,  does 
not  operate  to  revoke  an  agency  conferred  upon  it,  the  identity 
remaining  the  same.* 

§  222.  By  Severance  of  a  joint  Interest.  Upon  the  same 
ground,  it  is  held  that  where  two  or  more  principals  jointly  ap- 
point an  agent  for  the  transaction  of  some  business  in  which  they 
are  jointly  interested,  a  severance  of  this  joint  interest  will  oper- 
ate to  revoke  the  agency.* 

§  223.  Notice  of  Revocation.  In  order  to  render  the  revocation 
effectual,  notice  of  it  must  be  given  to  those  parties  whom  the 
revocation  is  desired  to  affect,  and  these  parties  are  the  agent  him- 
self and  those  persons  who,  from  knowledge  of  his  authority  or 
from  previous  dealings  with  him  as  such,  would  be  likely  to  con- 
tinue to  deal  with  him  in  good  faith  upon  the  strength  of  the 
previous  authority. 

a.     To  Third  Persons. 

8  224.  Where  Authority  was  general.  Where  a  general  author- 
ity is  once  shown  to  have  existed,  it  may  be  presumed  to  continue 
until  it  is  shown  to  have  been  revoked,'  and  persons  who  have 
dealt  with  the  agent  as  such,  or  who  have  had  notice  of  his  author- 
ity, may  very  properly  expect  that  if  the  authority  be  withdrawn, 
they  will  be  given  reasonable  and  timely  notice  of  that  fact,  and 
they  may  therefore  lawfully  presume,  in  the  absence  of  such  no- 
tice, that  the  authority  still  continues. 

General  Rule.  And  it  is  therefore  the  general  rule  of  the  law 
that  the  acts  of  a  former  general  agent  within  the  scope  of  hia 
original  authority  will,  notwithstanding  its  revocation,  continue 
to  bind  the  former  principal  to  those  parties  who  have  been  and 
still  are  dealing  with  him  in  good  faith  in  reliance  upon  his  former 
authority  until  they  have  had  notice  of  its  revocation.*    But  this 

29  La.  Ann.  586;  Vaccarc  v.  Toof.  9  17  Mo.   204;    Hancock  «.    Byrne,    5 

Heisk.  (Tenn.)  194.  Dana  (Ky.)  513;  Beard  v    Kirk,   11 

'  Billingsley  v.   Dawson,  27  Iowa,  N.   H.  397;  Diversy  v.    Kellogg,   44 

210.  111.    114;    Longworth   v.  Conwell,    3 

2Rowe  V.  Rand,  111  Ind.  206, 12  N.  Blackf.  (Ind.)  409;  Baltimore  v.  Esch- 

E.  Rep.  377.  bach,  18  Md.  276;  Planters'  Bank  v. 

•  Insurance  Co.  v.  McCain,  96  U.  S.  Cameron,  3  Sm.  &  M.  (Miss.)  609; 
84;  McNeilly  f.  Insurance  Co.,  66  N.  Munn  v.  Commission  Co.,  15  Johns. 
Y,  23.  (N.  Y.)  44;  Murphy  v.  Ottenheimer, 

♦  Lamothe  u  St.  Louis,  &c.,  Co.,  84  111.  39 ;  Marsh  «,  Gilbert,  4  Thomp. 

150 


Ohap.  YII.]  TERMINATION    OF    THE    RELATION.  §  226. 

rule  has  no  application  where  the  act  done  18  beyond  the  scope  of 
the  agent's  former  authority,  and  particularly  so  where  the  act  is 
in  excess  of  the  power  which  the  agent  himself  claimed  to 
possess.^ 

§  225.  Where  Authority  was  special.  Where,  however,  the 
authority  was  special  or  limited,  a  different  rule  applies.  As  lias 
been  seen,  an  authority  created  for  the  performance  of  a  specific 
act  exhausts  itself  in  the  accomplishment  of  the  purpose  for 
which  it  was  created.  No  such  presumption  can  arise  from  the 
performance  of  a  single  act,  as  from  a  continuous  course  of 
dealing. 

General  Bute. — It  is  therefore  the  general  rule  that  no  notice 
is  required  to  be  given  to  third  persons  of  the  revocation  of  the 
authority  of  a  special  agent.* 

This  rule,  however,  would  be  subject  to  the  exception  that  if 
the  revocation  is  effected  after  the  agent  has  entered  upon  the 
performance  of  his  agency,  notice  thereof  should  be  given  to 
those  persons  with  whom  the  agent  had  occasion  to  deal  while  so 
engaged  in  the  performance. 

b.     To  Agents. 

§  226.  Notice  must  be  given  to  Agent.  Notice  of  the  revo- 
cation of  his  authority,  whether  general  or  special,  must  be  given 
by  the  principal  to  the  agent.  As  between  the  agent  and  his 
principal,  the  revocation  becomes  operative  as  to  the  agent  from 

&  Cook(N.  Y.),  259;  McNeillyc.  Ins.  Cuddy,  21  La.  Ann.  388;  Baudouine 

Co.,  66  N.  Y.  23;  Claflia  v.  Lenheim,  v.  Grimes,  64  Iowa,    370;  Capen   v. 

Id.  301;  Barkley  v.  Rensselaer,  &c..  Pacific  Mut.  Ins.  Co.,  1  Dutch.  (N. 

Co.,  71  N.  Y.  205;  Packer  v.  Hinck-  J.)  67,  64   Am.    Dec.  412.     See   also 

ley  Locomotive   "Works,    122    Mass.  Cupples  v.  Whelan,  61  Mo.  583;  Sum- 

484;  Hatch  v.  Coddington,  95  U.  S.  merville  f.  Hannibal,   &c.  R.  R.  Co., 

48;  Rice  v.  Barnard,  127  Mass.  241;  63  Id.  391;    Howe   Machine   Co.    t>. 

Insurance  Co.   v.    McCain,  96  U.   S.  Simler,  59  Ind.    307;  Van   Dusen  ». 

84;  Braswell  v.  American  L.  Ins.  Co.,  Star  Quartz  Mining  Co.,  36  Cal.  571, 

75  N.  C.  8;  Ulrich  v.  McCormick,  66  95  Am.  Dec.  209. 

Ind.   243;  Meyer  v.  Hehner,  96  111.  'Baudouine  v.    Grimes,    64  Iowa, 

400;    Fellows  v.  Hartford,  «S;c.,  Co.,  370. 

38  Conn   197:  Rice  e.  Isham,  4  Abb.  »  Watts  v.    Kavanagh,    35   Vt.   34; 

App.  (N.  Y.)  37;  Wright  v.  Herrick,  Strachan   v.   Muxlow,    24   Wis.    21; 

128  Mass.  240;  Tier  v.  Lampson,  35  Fellows  v.  Hartford  &  N.  Y.  Steam- 

Vt.  179,  82  Am.  Dec.  634;  Girard  v.  boat  Co.,  38  Conn.  197. 
Hirsch,    6  La.    Ann.    651;  Harris  v. 

151 


8  227.  THE    LAW    OF    AGENCY.  [Book  I. 

the  time  it  is  actually  made  known  to  him.*  If  it  be  given  by 
letter,  it  takes  effect  from  the  time  the  agent  receives  the  letter, 
and  not  from  the  time  of  its  mailing.*  But  after  revocation  of 
the  agent's  authority,  the  principal  is  not  bound,  as  between  him- 
self and  the  agent,  to  notify  the  latter  of  his  dissent  from  acts 
which  the  agent  thereafter  assumes  to  do  by  virtue  of  the  orig- 
inal authority.^ 

c.     To  Subagents. 

§  227.  Notice  must  be  given  to  Subagent— When.  Where 
the  subagent  derives  his  authority  solely  from  the  agent,  no 
notice  is  required  to  be  given  by  the  principal  to  the  subagent  of 
the  revocation  of  the  agent's  authority ;  but  where  the  subagent 
was  appointed  by  and  with  the  authority  of  the  principal,  he  is, 
as  has  been  seen,  the  agent  of  the  principal,  and  notice  should  be 
given  to  him  of  the  revocation  of  his  authority.* 

§  228.  Notice— How  given— "What  sufficient.  What  shall  be 
deemed  sufficient  notice  in  any  case,  and  how  it  shall  be  given, 
are  questions  concerning  which  it  is  impossible  to  lay  down  any 
general  rule,  which  shall  be  both  comprehensive  and  precise.  It 
is  evident  that  these  questions  must  be  largely  determined  by  the 
facts  and  circumstances  of  each  particular  case.  What  would  be 
sufficient  notice  of  the  revocation  of  the  authority  of  a  clerk  to 
buy  butter  and  eggs  of  the  farmers  of  a  single  township  in  a 
country  store,  would  not  be  adequate  to  the  revocation  of  the 
authority  of  the  general  agent  of  a  great  railroad  or  insurance 
company  whose  transactions  extended  over  states  or  continents. 
Yet  the  principle  involved  in  each  case  would  be  the  same.  All 
must  be  done  that  may  reasonably  be  required  to  make  the 
knowledge  of  the  revocation  co-extensive  with  the  knowledge  of 
the  authority. 

The  case  is  analogous  to  that  of  the  dissolution  of  a  partner 
ship,  and  is  governed  by  the  same  rules.*  To  all  persons  who 
have  had  actual  dealings  with  the  agent,  actual  notice  must  be 
given,  or  such  knowledge  of  the  fact  must  be  brought  home  to 

» Weile  «.  United  States,  7  Ct.  of  'Kelly  e.  Phelps,  57  Wis.  425, 

CI.   635;  Harper  v.  Little.  2  Greenl.  « Story  on  Agency,  §  469. 

(Me  )  14,  11  Am.  Dec.  25;   Jones  v.  •Claflin  v.  Lenheim,  66  N.  Y.  801, 

Hodgkins,  61  Me.  480.  305. 

«  Robertson  v.  Cloud,  47  Miss.  208. 

152 


Chap.  YII.]  TERMINATION    OF   THE    RELATION.  §  230. 

them  as  would  be  sufficient  to  put  an  ordinarily  prudent  man 
upon  inquiry.  To  persons  who  liave  had  no  actual  dealings, 
notice  may  be  given  by  publication  in  some  newspaper  of  general 
circulation.  Notice  by  publication  is  sufficient  even  to  those 
who  have  had  dealings  with  the  agent  if  it  can  be  shown  that 
they  saw  it ;  otherwise  not.' 

§  229.  When  Evidence  of  Agency  recorded,  Revocation 
Bhould  be  recorded.  It  is  a  common  provision  of  the  statutes  of 
the  various  States,  that  powers  of  attorney  or  other  instruments 
conferring  authority  upon  the  agent  to  deal  with  the  principal's 
real  estate,  shall  or  may  be  recorded  in  the  proper  recording 
office  of  the  county  or  district  in  which  the  land  is  situated. 
These  statutes  commonly  provide  also  that  any  instrument  revok- 
ing such  a  power  shall  or  may  be  recorded  in  the  same  office,  and 
make  such  recording  in  either  case  constructive  notice  of  the 
facts  which  the  record  discloses.  Where  such  statutes  prevail, 
the  recording  of  a  revocation  of  the  agent's  authority  is  notice 
to  all  who  may  subsequently  have  occasion  to  deal  with  him  ;* 
and  where  the  statute  is  imperative,  the  revocation  cannot  be 
given  effect  in  any  other  way,  unless  by  express  notice.' 

§  230.  Notice  of  Revocation  should  be  unequivocal.  But 
whatever  may  be  the  form  adopted,  the  notice  should  be  un- 
equivocal and  not  leave  the  parties  in  doubt  as  to  the  principal's 
intentions.  Any  ambiguity  or  uncertainty  in  such  a  case  should 
be  construed  most  strongly  against  the  principal,  in  whose  power 
it  lay  to  prevent  such  a  result. 

As  was  said  by  a  distinguished  judge  in  a  case  involving  the 
revocation  of  an  express  power  to  draw  bills,  "Nothing  could  be 
more  inconsistent  with  that  candor  and  good  faith  which  ought 
to  mark  the  transactions  of  mercantile  men,  than  to  favor  the 
revocation  of  an  explicit  contract  on  the  construction  of  a  corre- 

'EweU's  Lindley  on   Partnership,  attorney  or  other  instrument  so  re- 

414-416;  Claflin  v.  Lenheim,  supra;  corded,  shall  be  deemed  to  be  revoked 

Braswell  v.  American  L.  Ins.  Co.,  75  by  any  act  of  the  party  by  whom  it 

N.  C.  8;   Fellows  «.  Hartford,  &c.,  was  executed,  unless  the  instrument 

Co.,  38  Conn.  197;   Williams  v.  Bir-  containing  such   revocation   be  also 

beck,  Hoffman  (N.  Y.)  Ch,  359.  recorded  in  the  same  office  in  which 

s  Arnold  v.  Stevenson,  2  Nev.  234.  the  instrument  containing  the  power 

'The  statute  of  Michigan,  for  ex-  was  recorded."  How.  Stats.,  §  5093. 
ample,  provides  that   "  No  letter  of 

153 


§  231.  THE   LAW   OF   AOENOT.  [Book  L 

spondence  nowhere  avowing  that  object.  It  was  in  the  defend- 
ant's power  to  have  revoked  his  assumption,  at  any  time  prior  to 
its  execution ;  but  it  was  incumbent  on  him  to  have  done  so 
avowedly,  and  in  language  that  could  not  be  charged  with  equiv- 
ocation." ^ 

§  231.  How  Sufaciency  of  Notice  determined.  Where  the 
circumstances  are  controverted,  or  where  notice  is  sought  to  be 
inferred  as  a  fact  from  circumstances,  the  question  is  for  the  jury  ; 
they  must  determine  as  a  question  of  fact  whether  the  party 
claiming  against  the  principal  did  or  did  not  have  notice  of  revo- 
cation ;  and  if  there  be  some  evidence  of  this  fact,  it  must  be 
submitted  to  the  jury.  Where,  .however,  the  facts  are  undis- 
puted, and  the  only  question  is  whether  they  amount  to  con- 
structive notice,  or  are  sufficient  to  put  the  party  upon  inquiry, 
the  question  is  not  for  the  jury,  but  for  the  court.* 

B.     Public  Agency. 
8  232.     Statutory  Agency  not  revocable  at  Will  of  Principal 

Where  the  State  requires  the  creation  and  maintenance  of  an 
agency  to  subserve  some  purpose  in  which  its  citizens  may  have 
an  interest,  the  authority  of  an  agent  appointed  in  pursuance  of 
such  a  requirement  cannot  be  revoked  at  the  mere  will  of  the 
principal,  unless  for  the  appointment  of  another  in  his  place, 
while  the  exigency  continues  against  which  the  statute  was 
intended  to  provide. 

Thus  where  a  statute  required  any  foreign  insurance  company 
doing  business  within  the  State,  to  appoint  an  agent  within  the 
State  upon  whom  process  against  the  company  might  be  served, 
it  was  held  that  the  company  having  appointed  such  an  agent, 
could  only  revoke  his  authority  upon  the  appointment  of  another. 
Said  the  court :  "  Taking  into  consideration  its  evident  purpose, 
and  its  utter  futility  if  a  company  appointing  an  agent  to 
receive  service  could  by  any  act,  known  only  to  the  agent 
and  itself,  withdraw  his  powers,  it  must  be  held  that  this  appoint- 
ment was  irrevocable,  unless  the  revocation  might  be  made  by 
the  appointment,  duly  notified  upon  the  records,  of  a  new  agent, 

•Johnson,  J.,  in  Lanusse  v.  Bar-      56;    Claflin  v.   Lenheim,   66    N.   Y. 
ker,  3  Wheat.  (U.  S.)  101.  143;  See      301. 
Hatch  V.  Coddington,   95  U.  S.   48,  »  Claflin  v.  Lenheim,  66  N.  Y.  801. 

154 


Chap.   VII.]  TERMINATION    OF    THE    RELATION. 


§  233. 


who  should  be  competent  to  receive  service  of  process  in  regard 
to  any  controversies  arising  upon  contracts  previously  entered 
into."  * 

^.  Renunciation  hy  Agent. 
§  233.  General  Rule— Agent  may  renounce  at  any  Time.  The 
agent  may,  in  general,  renounce  his  agency  at  any  time.  His 
power  to  do  this,  in  the  sense  that  his  further  performance  will 
not  be  specifically  enforced,  is  co-extensive  with  the  principaTs 
power  to  revoke ;  but  his  right  to  do  so,  is,  like  the  principal's 
right  to  revoke,  limited  by  his  contracts  in  the  premises.  Where 
the  agency  is  indefinite  in  duration  the  agent  may,  upon  giving 
reasonable  notice,  sever  the  relation  at  any  stage  without  liability 
to  the  principal,*  and  will  be  entitled  to  compensation  and  reim- 
bursement for  his  services  and  expenses  up  to  that  time.'  Where, 
however,  the  agency  was  created  for  a  definite  period,  or  was 
undertaken  for  a  valuable  consideration,  tlie  agent  who  renounces 
before  the  expiration  of  that  period,  or  before  the  performance 
of  his  undertaking,  will  be  liable  to  his  principal  for  the  damages 
he  may  sustain  thereby.* 


'  Gibson  v.  Manufacturers'  Ins.  Co. 
144  Mass.  81,  10  N.  East.  Rep.  729; 
and  to  the  same  effect  see  Michael  v. 
Mutual  Ins.  Co.,  10  La,  Ann.  737. 

s  Barrows  t>.  Gush  way,  37  Mich. 
481;  United  States  v.  Jarvis,  Davies 
(U.  S.  D.  C.)  274;  Coffin  v.  Landis, 
46  Penn.  St.  426. 

»  See  post,  §  633. 

<  United  States  v.  Jarvis,  supra; 
Coffin  »  Landis,  supra.  The  language 
of  Ware,  J.,  in  United  States  v.  .Jar- 
vis, supra,  is  worthy  of  full  quota- 
tion upon  the  subject  of  revoca- 
tion and  renunciation:  "There  is 
no  doubt,  as  a  general  rule, 
that  the  appointment  of  an  agent 
may  at  any  time  be  revoked  by 
the  principal  without  giving  a  reason 
for  it,  because  it  is  the  right  of  every 
man  to  employ  such  agents  as  he 
sees  fit.  The  agent,  also,  has  the 
same  general  right  to  renounce  the 
agency  at  his  own  will,  for  it  is  an 


engagement  at  the  will  of  both  par- 
ties. But  the  contract  of  agency  in- 
volves mutual  obligations  between 
the  parties,  and  these  commence,  if 
not  as  soon  as  the  appointment  is 
made,  at  least  as  soon  as  the  agent 
commences  the  execution  of  the 
agency.  If  he  has  entered  on  the 
business,  even  if  he  does  not  accom- 
plish prosperously  what  he  Lasun;ier- 
taken,  he  will  be  entitled  from  the 
principal  to  an  indemnity  for  his  ex- 
penses and  services,  if  the  failure 
does  not  arise  from  his  own  fault. 

After  he  has  engaged  in  the  busi- 
ness of  the  agency,  the  principal  may 
at  any  time  revoke  his  powers  and 
dismiss  him  from  his  service.  But 
if  his  power  is  thus  revoked,  the 
principiil  will  be  responsi!)le  to  him 
for  any  engagements  he  may  have 
entered  into  and  any  liabilities  he 
may  have  incurred,  in  good  faith  in 
the  proper  business   of  the   agency. 


155 


I  23i.  THE    LAW    OF   AGENCY.  [Book  I. 

§  234.  By  mutual  Consent.  The  relation  of  principal  and 
agent  may,  of  course,  be  terminated  at  any  time  by  the  mutual 
consent  of  the  parties  without  liability  on  either  side.' 

§  235.  Abandonment  may  be  treated  as  Renunciation.  If 
the  agent  abandon  the  agency  he  may  not  complain  if  the  prin 
cipal  treats  this  as  a  renunciation,  and  appoints  another  in  his 
stead.  Thus  where  an  agent  in  Philadelphia  wrote  to  his  prin- 
cipal in  New  York  that  he  had  decided  to  give  up  the  business 
and  requested  him  to  come  or  to  send  some  one  to  take  charge 
of  it,  it  was  held  that  the  principal  might  treat  this  as  an  aban- 
donment and  appoint  a  new  agent.*  So  where  an  agent  was 
arrested  upon  a  criminal  charge  and  kept  in  jail  for  two  weeks  dur- 
ing the  busiest  part  of  the  season,  it  was  held  that  the  principal 
might  lawfully  treat  the  employment  as  abandoned,  although 
it  subsequently  proved  that  the  imprisonment  was  unauthorized.* 

8  236.  Agent  may  abandon  if  required  to  do  unlawful  Act. 
If  the  principal  requires  of  the  agent  the  performance  of  an 
illegal  or  immoral  act,  the  agent  may  lawfully  renounce  his 
ao-ency.  As  is  said  by  a  learned  judge:  ^^ Honeste  vivere  is  a 
part  of  the  law  of  principal  and  agent."  * 

§  237.  Notice  of  Renunciation.— Notice  of  the  renunciation 
must  be  given  by  the  agent  to  the  principal,  and  as  between  the 
parties  the  renunciation  will  be  operative  from  the  time  the  prin- 
cipal receives  the  notice  of  it.  The  principal  must  also  for  his 
own  protection  give  notice  to  third  persons  of  the  termination  of 
the  authority  by  renunciation  in  the  same  manner  as  where  the 
authority  is  revoked.* 

before  he  had  notice  of  the  revoca-  rendering  himself  responsible  for  the 

tion.     And  so  the  agent,  after  enter-  consequences." 

ing  upon  the  business,  may  renounce  See  also  pout,  §  633. 

the  agency.     But  this  must  be  done  •Conreyt).Brandegee,2La.Ann.l32. 

in  good  faith,   and  be  preceded  by  « Stoddart   v.    Key,  62    How.    Pr. 

reasonable   notice,  or  the  agent  will  (N.  Y.)  137. 

be  liable  to  the  principal  for  any  loss  •  Leopold  v.  Salkey,  89  111.  412. 

that  may  result  to  him  from  this  cause.  «  Conrey  ©.   Brandegee,  8  La  Ann. 

The  agent  cannot  withdraw  himself  132;  See  also  post,  §  G32. 

from  his  engagement  wantonly  and  »  Capen  v.  Pacific  Mut.  Ins.  Co.   1 

without   reasonable     cause   without  Dutch.  (N.  J.  Law)  67,  64  Am.  Dec 

412. 

156 


Chap.  VII.]  TERMINATION    OF   THE    KELATION.  §  240. 

III. 
BY    OPERATION    OF    LAW. 

§  238.  But  the  intentional  act  of  tlie  parties  does  not  furnish 
the  only  means  by  which  the  relation  of  principal  and  agent  may 
be  dissolved.  Such  changes  in  condition,  capacity  and  surround- 
ings of  the  parties,  or  the  subject-matter  may  occur  as  to  render 
the  further  continuance  of  the  relation  inconsistent  or  impossi- 
))Ie,  and  the  agenc}'  will  thereupon  be  terminated  or  dissolved  by 
the  operation  of  law. 

Thus  one  or  both  parties  to  the  relation  may  die,  or  become 
insane,  or  bankrupt.  War  may  interrupt  the  commercial  tran- 
sactions between  citizens  of  different  states  or  countries,  or  the 
subject-matter  of  the  agency  may  cease  to  exist  or  it  become  im- 
possible or  unlawful  to  be  performed.  Each  of  these  contin- 
gencies it  is  important  to  consider. 

1.    By  Death  of  One  of  the  Parties. 
a.     By  the  Death  of  the  Principal. 

§  239.  In  general.  The  relation  of  principal  and  agent  nec- 
essarily presupposes  at  least  two  existing  and  competent  parties, 
— one  competent  to  act  for  himself  and  in  his  own  behalf,  but 
preferring  for  reasons  of  convenience  or  otherwise  to  delegate 
this  power  to  another  ;  the  other  likewise  competent,  ordinarily, 
to  act  for  himself,  but  undertaking  for  the  time  being  to  assume 
a  representative  character  and  to  act  in  the  name  and  for  the 
benefit  of  the  person  represented  ; — one  supplying  authorit}',  the 
other  exercising  it. 

By  the  death  of  either  of  these  parties,  therefore,  it  is  obvious 
that  the  relation  must  ordinarily  be  terminated.  If  the  principal 
dies,  there  is  thenceforward  no  one  to  be  represented  ;  no  one  in 
whose  name  the  agent  can  act ;  no  one  from  whom  the  supplj'  of 
])ower  can  continue  to  flow,  and  unless  there  is  something  in  the 
nature  of  the  authority  by  which  it  can  survive  a  severance  from 
its  source,  it  must  perish  with  it. 

§  240.  General  Rule— Death  of  Principal  terminates  Agency. 
It  is  therefore  the  general  rule  that  the  authority  of  an  agent,  not 
coupled  with  an  interest,  is  instantly  terminated  by  the  death  of 
the  principal,  even  though  it  may  have  been  irrevocable  in  his 

157 


§241. 


THE    LAW    OF    AGENCY. 


[Book  1. 


life-time ;  and  tliat  any  attempted  execution  of  the  authority 
after  tliat  event  is  not  binding  upon  the  heirs  or  representatives 
of  the  deceased  principal.' 

The  relation  being  thus  terminated  by  the  act  of  God,  the 
agent  can  maintain  no  claim  for  damages  thereby,  although  he 
had  been  employed  for  a  fixed  term  which  had  not  yet  expired.* 

Of  course  where  the  authority  has  been  fully  executed  before 
the  principal's  death,  that  event  cannot  affect  the  rights  of  the 
other  party.  So  if  before  the  principal's  death,  the  authority 
has  been  executed  in  part,  his  death  cannot  operate  as  a  revoca- 
tion of  the  executed  portion,  nor,  if  the  authority  be  entire,  of 
that  which  yet  remains  unexecuted.' 

§  241.  Same  Subject— Not  when  coupled  with  an  Interest. 
Where,  however,  the  authority  of  the  agent  is  coupled  with  an 
interest  in  the  subject-matter  of  the  agency,  it  is  not  terminated 
by  the  death  of  the  principal,  and  a  subsequent  execution  of  it 
by  the  agent  will  be  good.* 


>  Saltmarsh  v.  Smith,  33  Ala.  404; 
Boone  e.  Clarke,  3  Cranch  (U.  S.  C. 
C.)  389;  Hunt  v.  Rousmanier,  8 
Wheat.  (U.  S.)  174;  Ferris  v.  Irving, 
28  Cal.,  645;  McDonald  v.  Black,  20 
Ohio,  185;  Primm  v.  Stewart,  7  Tex. 
178;  Michigan  Ins.  Co.  v.  Leaven- 
worth, 30  Vt.  11;  McGrifi  v.  Porter, 
5  Fla.  373;  Lewis  v.  Kerr,  17  Iowa 
73;  Gale  v.  Tappan,  13  N.  H.  145,  37 
Am.  Dec.  194;  Merry  v.  Lynch,  68 
Me.  94;  Darr  v.  Darr,  69  Iowa  81; 
Lincoln  c.  Emerson,  108  Mass.  87; 
Huston  V.  Cantiil,  11  Leigh  (Va.) 
136;  Harper  v.  Little,  3  Greenl.  (Me.) 
14,  11  Am.  Dec.  25;  Staples  v.  Brad- 
bury, 8  Greenl.  (Me)  181.  33  Am. 
Dec.  494;  Jenkins  r.  Atkins,  1 
Humph.  (Tenn.)  294,  34  Am.  Dec. 
648;  Wellborn  v.  Weaver,  17  Ga. 
267,  63  Am.  Dec.  235;  Clayton  v. 
Merrett,  53  Miss,  353;  Davis  v.  Wind- 
sor Savings  Bank,  46  Vt.  728;  Trav- 
ers  V.  Crane,  15  Cal.  13;  Marlett  v. 
Jackman,  3  Allen  (Mass.)  387;  John- 
son V.  Wilcox,  25  Ind.  182;  Turnan 
V.  Temke,  84  111.    286;  Cleveland  v. 

1 


Williams.  29  Tex.  204,  94  Am.  Dee. 
274;  Doe  v.  Smith,  1  Jones  (N.  C.) 
L.  135,  59  Am.  Dec.  581 ;  Cassiday  v. 
McKenzie,  4  W.  &  S.  (Penn.)  382,  39 
Am.  Dec.  76;  Wilson  t>.  Edmonds, 
24  N.  H.  517;  Easton  v,  Ellis,  1 
Handy  (Ohio.)  70;  Scruggs  v.  Driver, 
31  Ala.  374. 

«  Yerrington  ».  Greene,  7  R.  I.  589, 
84  Am.  Dec.  578;  but  in  Fereira  v. 
Sayres,  5  W.&  S.(Penn.)  310,  40  Am. 
Dec.  496,  it  was  held  that  the  death 
of  one  of  two  partners  did  not  ab- 
solve the  firm  from  liability  to  an 
ag(  nt  who  had  been  employed  for  a 
term  which  had  not  yet  expired.  But 
a  contrary  result  to  that  of  the  last 
case  was  reached  in  Tasker  v.  Shep 
herd,  6  H  &  N.  575;  D«rnet  v.  Hope 
9  Ont.  Rep.  10. 

» Garrett  ij.  Trabue,  83  Ala.  227 
Story  on  Agency,  §  46(J. 

<Hunt  V.  Rousmanier,  8  Wheat 
(TJ.  S.)  174;  Merry  v.  Lynch,  68  Me 
94;  Bergen  v.  Bennett,  1  Caine'i 
Cases  (N.  Y.)  1,  2  Am.  Dec.  281 
Knapp  V.  Alvord,  10  Paige  (N.  Y.) 

58 


Chap.  YII.]  TERMINATION    OF    THE    RELATION.  §  242. 

§  242,  Same  Subject— What  Interest  sufficient.— The  same 
difficulty  is  experienced  here  that  was  met  with  in  defining  the 
interest  which  would  protect  an  authority  from  revocation  during 
the  principal's  life-time.'  But  it  must,  in  general  terms,  be  an 
interest  in  the  thing  itself  which  is  the  subject  of  the  agency  and 
be  capable  of  execution  in  the  name  of  the  agent.  A  mere 
power,  though  irrevocable  by  the  principal  in  his  life-time,  is, 
nevertheless,  terminated  by  his  death.  But  as  is  said  by  Chief 
Justice  Marshall:  "This  general  rule,  that  a  power  ceases 
with  the  life  of  the  person  giving  it,  admits  of  one  exception. 
If  a  power  be  coupled  with  an  'interest'  it  survives  the  person 
giving  it  and  may  be  executed  after  his  death.  As  this  proposi- 
tion is  laid  down  too  positively  in  the  books  to  be  controverted, 
it  becomes  necessary  to  inquire  what  is  meant  by  the  expression 
'  a  power  coupled  with  an  interest '  ?  Is  it  an  interest  in  the  sub- 
ject on  which  the  power  is  to  be  exercised,  or  is  it  an  interest  in 
that  which  is  produced  by  the  exercise  of  the  power  ?  We  hold 
it  to  be  clear  that  the  interest  which  can  protect  a  power  after 
the  death  of  a  person  who  creates  it,  must  be  an  interest  in 
the  thing  itself.  In  other  words,  the  power  must  be  engrafted 
on  an  estate  in  the  thing. 

"  The  words  themselves  would  seem  to  import  this  meaning. 
'A  power  coupled  with  an  interest'  is  a  power  which  accompa- 
nies or  is  connected  with  an  interest.  The  power  and  the  interest 
are  united  in  the  same  person.  But  if  we  are  to  understand  by  the 
word  '  interest'  an  interest  in  that  which  is  to  be  produced  by  the 
exercise  of  the  power,  then  they  are  never  united.  The  power  to 
produce  the  interest  must  be  exercised,  and  by  its  exercise  is 
extinguished.  The  power  ceases  when  the  interest  commences, 
and  therefore  cannot,  in  accurate  law  language,  be  said  to  be 
'  coupled '  with  it. 

"But  the  substantial  basis  of  the  opinion  of  the  court  on  tin's 
point  is  found  in  the  legal  reason  of  the  principle.  The  interest  or 
title  in  the  thing  being  vested  in  the  person  who  gives  the  power, 
remains  in  him,  unless  it  be  conveyed  with  the  power,  and  can 
pass  out  of  him  only  by  a  regular  act  in  his  own  name.  The  act 
of  the  substitute,  therefore,  which  in  such  a  case  is  the  act  of  the 

205,    40   Am.    Dec.    241;    Leavitt  v.       taling  v.   Marvin,    7  Barb.   (N.   T.) 
Fisher,   4  Duer  (N.  Y.)   1;    Iloagh-      412, 

'  Ante,  §  205. 
159 


§  243.  THE    LAW    OF    AGENCY.  [Book  1. 

principal,  to  be  legally  effectual,  mnst  be  in  his  name,  and  must 
be  such  an  act  as  the  principal  himself  would  be  capable  of  per- 
forming, and  which  would  be  valid  if  performed  bj  him.  Such 
a  power  necessarily  ceases  with  the  life  of  the  person  making  it. 
But  if  the  interest  or  estate  passes  with  the  power,  and  vesta  in 
the  person  by  whom  the  power  is  to  be  exercised,  such  person 
acts  in  his  own  name.  The  estate  being  in  him,  passes  from  him 
by  a  conveyance  in  his  own  name.  He  is  no  longer  a  substitute 
acting  in  the  place  and  name  of  another,  but  he  is  a  principal 
acting  in  his  own  name  in  pursuance  of  powers  which  limit  his 
estate.  The  legal  reason  which  limits  the  power  to  the  life  of 
the  person  giving  it,  exists  no  longer ;  and  the  rule  ceases  with 
the  reason  on  which  it  is  founded."  ' 

Again  it  is  said  by  a  learned  judge,  "  A  power  is  simply 
collateral  and  without  interest,  or  a  naked  power,  when  to  a 
mere  stranger,  authority  is  given  to  dispose  of  an  interest  in 
which  he  had  not  before,  nor  has  by  the  instrument  creating  the 
power,  any  estate  whatsoever ;  but  when  the  power  is  given  to  a 
person  who  derives  under  the  instrument  creating  the  power  or 
otherwise,  a  present  or  future  interest  in  the  property,  the  subject 
on  which  the  power  is  to  act,  it  is  then  a  power  coupled  with  an 
interest."  * 

§243.  Same  Subject  — What  Interest  sufficient  —  Instances. 
Thus  the  indorsement  and  delivery  for  the  purpose  of  collection 
of  a  promissory  note  passes  the  legal  title  in  trust,  and  the  agent 
may  sue  upon  it  in  his  own  name  afjer  the  death  of  the  princi- 
pal.' So  the  power  of  sale  conferred  by  a  mortgagor  upon  the 
mortgagee  is  one  coupled  with  an  interest  and  is  not  revoked  by 
the  mortgagor's  death.* 

§  244.  Same  Subject— What  Interest  not  sufficient— Instances. 
But  a  power  of  attorney  not  containing  any  words  of  conveyance 
or  assignment  but  a  simple  authority  to  sell  and  convey,  although 

'  Hunt  V.    Rousmanier,   8  Wheat.  158;  Berry  «.  Skinner.  30   Md.    567; 

(U.  S.)  174.  Beatie  v.  Butler,  21  Mo.  313;  Bradley 

•  Thompson,  J.,  in  McQrifE  v.  Por-  ».  Chester  Valley  R.  R.  Co.,  3G  Penn. 

ter,  5  Fla.  373.  379.  St.  141;  Bergen  v.  Bennett,  1    Caines' 

8  Moore  v.  Hall,  48  Mich.  143;  Boyd  Cas.  (N.  Y.)  1,  2  Am.  Dec.  281;  Wil- 

c.  Corbitt,  37  Mich  52.  son  v.  Troup,  2  Cow.  (N.  Y.)  195,  14 

♦Conners  v.  Holland,  113  Mass.  50;  Am.  Dec.  458. 
Varnum  v.  Meserve,  8  Allen  (Mass.) 

160 


Chap.  YII.]  TERMINATION   OF   THE    RELATION.  §  244. 

given  as  collateral  security  for  the  payment  of  certain  notes 
executed  by  the  principal  to  the  attorney  and  authorizing  him  to 
Bell  the  property  named  in  case  of  default  and  reimburse  himself, 
is  not  a  mortgage  but  a  bare  power  and  is  terminated  by  the 
death  of  the  principal  before  execution  ;  *  so  where  to  secure  the 
loan  of  money  the  borrower  executed  an  instrument  in  writing, 
authorizing  the  lender,  upon  default  in  payment,  to  enter  upon 
the  premises  of  the  borrower  and  take  away  certain  slaves  therein 
specified,  and  to  sell  and  dispose  of  them  and  out  of  the  proceeds 
of  the  sale  to  reimburse  himself  for  the  loan  and  all  expenses,  and 
to  return  the  surplus,  if  any,  to  the  borrower,  tlie  same  ruling 
was  made  ; '  and  again  where  a  principal  debtor  gave  his  surety 
a  written  power  of  attorney  authorizing  him  to  sell  certain  lands 
to  pay  the  debt,  but  the  surety  did  not  exercise  the  power  during 
the  grantor's  life-time,  it  was  held  that  the  authority  was  utterly 
dissolved  by  the  latter's  death  ; '  so  a  power  given  by  a  debtor  to 
his  creditor  authorizing  him  to  collect  a  debt,  due  to  the  debtor, 
and  to  apply  it  on  his  claim,  but  containing  no  conveyance  or 
assignment  of  the  debt,  is  terminated  by  the  debtor's  death.* 

A  fortiori^  is  this  so  where  the  authority  conveyed  is  a  mere 
power,  or  where  the  only  interest  is  that  in  compensation  to  be 
gained  from  the  proceeds  of  the  sale  of  property  or  the  collection 
of  a  debt.' 

Of  the  former  class,  an  authority  to  occupy  land  as  an  agent ;  • 
a  power  to  sell  a  chattel ; '  an  authority  by  a  landlord  to  his 
tenant  to  make  repairs ; '  a  power  of  attorney  to  demand  pay- 
ment of  a  note,*  or  to  receive  notice  of  its  dishonor  ;  "  a  power 
of  attorney  to  procure  a  patent, "  are  examples,  and  expire  with 
the  life  of  him  who  granted  them. 

>  Hunt  «,   Rousmanier,  8   Wheat.  e.  Kerr,  17  Iowa,  78;  Primm  «.  Stew- 

(U.  S.)  174  art,  7  Tex.  178. 

sMcGrifE  ».  Porter,  5  Fla.  873.  'Lincoln  v.  Emerson,  108  Mass.  87. 

s  Huston  «.  Cantril,  11  Leigh  (Va.)  t  McDonald  e.  Black.  20  Ohio,  185. 

136.  •  Wilson  «.  Edmonds,  24  N.  H.  517. 

« Houghtaling  e.   Marvin,  7  Barb.  •  Gale  «.  Tappan,  13  N.  H.  145,  37 

(N.  Y.)  412.  Am.  Dec.  194. 

•Harper  ».  Little,  2  Greenl  (Me.)  14,  '"Bank  of  Washington  «.  Peirson, 

11  Am.  Dec.  25;  Saltmarsh  e.  Smith,  2  Cranch.  (U.  8.  C.  C.)  685. 

32  Ala.  404:  Traverse.  Crane,  15  Cal.  >' Eagleston    Mnfg.    Co.    t>.   West 

12;    Ferris   v.    Irving,   28  Cal.    645;  Mnfg.  Co.,  18  Blalch.  (U.  8.  C.  C.) 

Coney  t).  Sunders.  28  Ga.  511;  Lewis  223. 
11                                    161 


§  245.  THE    LAW   OF   AGENCY.  [Book  L 

§  245.  How  when  Death  unknown.  When  the  authority  has 
thus  been  dissolved  by  the  death  of  the  principal,  all  subsequent 
attempts  to  execute  it,  or  to  act  by  virtue  of  it,  even  though 
made  in  good  faith  and  in  ignorance  of  the  fact  of  the  death,  are 
ineffectual  to  bind  the  estate  of  the  principal.  Where  the  au- 
thority is  one  which  must  be  executed  in  the  name  of  the  princi- 
pal, as  by  executing  deeds,  this  rule  is  unquestioned  *  but  where 
the  act  is  one  which,  while  it  is  done  for  the  principal,  is  not 
expressly  required  to  be  done  in  his  name,  it  has  been  criticised 
and  even  denied  by  some  text  writers  and  judges.*  Even  in  the 
latter  case,  however,  the  rule  is  supported  by  an  undoubted  pre- 
ponderance of  authority.' 

By  the  civil  law,  the  act  of  an  agent  done  in  good  faith  in 
ignorance  of  the  death  of  the  principal,  is  binding  upon  his  rep- 
resentatives. There  the  death  does  not  necessarily  and  ipso  facto 
operate  as  a  dissolution  of  the  agency,  but  the  agency,  as  in  the 
case  of  an  express  revocation,  determines  only  from  the  time  of 
notice.*  But  by  the  common  law,  the  rule  is  different,  as  has 
been  seen,  and  the  death,  except  in  cases  coupled  with  an  inter- 
est, works  an  instantaneous  dissolution  of  the  relation.  Some 
tendency  has  been  manifested  to  apply  the  rule  of  the  civil  law 
in  certain  cases  as  being  more  consonant  with  reason  and  justice. 
Thus  in  Cassiday  v.  McKenzie,'  it  was  held  that  the  payment 
made  by  an  agent  after  the  death  of  the  principal,  but  in  ignor- 
ance of  it,  was  good.  So  in  Dick  v.  Page,*  the  deposit  of  col- 
laterals made  by  an  agent  as  security  for  advances  made  after  the 
principal's  death,  but  all  the  parties  being  in  ignorance  of  it,  was 
held  to  be  valid  as  against  the  executor  of  the  principal,  and  the 
same  principle  was  enforced  in  Ish  v.  Crane.' 

» Harper  «.  Little,  2  Greenl.  (Me.)  Cleveland  v.  Williams,  29  Tex.  204, 

14,  11  Am.  Dec.  25;  Travers  v.  Crane,  94  Am.  Dec.  274;  Michigan  Ins.  Co,  v. 

15  Cal.  12;  Ferris  v.  Irving,  28  Cal.  Leavenworth,   30  Vt.    11;    Davis  v. 

645;    Coney  v.  Sanders,  28  Ga.  511;  Windsor  Savings  Bank,  46  Vt.  728; 

Lewis  V.  Kerr,  17  Iowa,  73.  Jenkins  v.  Atkins,  1  Humph.  (Tenn.) 

8  Story  on  Agency,  §  495;  Wharton  294,  34  Am.  Dec.  648;  Rigs  v.  Cage, 

on  Agency,  §102;  Cassiday  u  McKen-  2  Humph.  (Tenn.)  350,  37  Am.  Dec. 

zie,  4  W.  &  S.  (Penn.)  282,  39  Am.  559. 

Dec.  76;  Dick  «.  Page,  17  Mo.  234;  <Inst.  3,  27,  10;  Digest,  17,  1,  6;  I 

Ish  t).  Crane,  8  Ohio  St.  520,  S.  0.  18  Domat  b.  1.  Tit.  15,  §  4. 

Id.  574.  »  Supra. 

8  Clayton  v.  Merrett,  52  Miss,  353;  'Supra. 

Gait  V.  Galloway,  4  Pet.  (U.  S.)  331;  ^  Supra, 

162 


Chap.   YIL]  TERMINATIOif    OF   THE   EELATION.  §  245. 

But  these  cases  have  not  been  followed  by  other  courts,  and  it 
is  said  of  them  by  a  learned  judge,  that  "  in  as  far  at  least  as 
they  announce  the  doctrine  under  discussion  they  are  exceptional. 
The  Pennsylvania  case  is  believed  to  stand  almost  if  not  quite 
alone,  in  announcing  the  principle  in  its  broadest  scope.     The 
overwhelming  weight  of  authority  is  to  the  effect  that  the  death 
of  the  principal  operates  as  an  instantaneous  revocation  of  the 
agency  where  it  is  a  naked  power  unaccompanied  with  an  inter- 
est, and  every  act  of  the  agent  thereafter  performed  is  null  so 
far  as  the  estate  of  the  principal  is  concerned.     This  rule  fre- 
quently operates  very  unjustly  and  produces  very  great  hard- 
ships.    A  party  dealing  with  an  insolvent  agent,  upon  the  faith 
of  his  well  known   authority  from  a  wealthy  and  distant  princi- 
pal, is  suddenly  confronted  with  the  fact  that  the  authority  had 
ceased  by  the  death  of  the  principal,  one  day  or  perhaps  one  houi 
before  his  transactions  occurred.     Impressed  with  the  hardship 
of  such  a  case,  the  civil  law  adopts  the  rule  contended  for  in  the 
case  at  bar  and  renders  valid  a  contract  executed  or  a  payment 
made  under  such  circumstances,"  but  he  goes  on  to  say  that 
"however  great  the  injustice  produced  in  particular  cases,  un- 
doubtedly the  common  law  rule  is  that  death  revokes  the  agency 
and  nullifies  all  acts  thereafter  performed.     This  doctrine  rests 
upon  the  obvious  principle  that  as  a  dead  man  can  do  no  act  for 
himself,  so  no  man  can  do  an  act  for  him.    When,  therefore,  the 
agent  undertakes  to  act  in  his  name,  he  is  acting  for  a  being  not 
in  existence.     To  hold  his  act  valid  is  not  to  bind  the  dead  man 
but  his  heirs  and  representatives,  who  are  thus  held  liable  for  the 
acts  of  one  whom  they  never  appointed  and  whom  perhaps  they 
■would  be  unwilling  to  trust.    Whether  a  system  of  jurisprudence 
which  would  accomplish  this  result  would  be  found  in  the  long 
run  less  productive  of  injustice  than  our  present  rule  may  well 
be  doubted.     At  all  events  we  are  satisfied  that  such  is  not  the 
law." ' 

Of  the  reason  of  the  common  law  rule,  it  has  been  said,  "  Though 
it  may  be  true  that  when  a  power  is  revoked  by  the  act  of  the 
party,  notice  may  be  necessary,  yet  when  revoked  by  his  death, 
the  revocation  at  once  takes  effect,  and  if  any  act  is  subsequently 
done  under  the  power,  though  without  notice  of  the  death  of  the 

■Chalmers,  J.,  in  Clayton  «.  Merrett,  tupra. 
163 


§  246.  THE   LAW    OF   AGENCY.  [Book  I. 

party,  the  act  is  void,  and  there  is  the  best  reason  in  the  world 
for  this  fundamental  distinction.  It  is  an  event  of  which  each 
party  has  equal  means  of  knowledge,  and  must  take  notice  of  it 
at  his  peril."  * 

8  246.     Same  Subject— Instances.    In  accordance  with  the  rule 
of  the  common  law,  therefore,  it  has  been  held  that  a  payment 
made  to  an  agent  after  the  death  of  his  principal,  though  the 
party   paying   did   so   in   good    faith    and   without   notice    of 
the  death  of    the  principal,  was   not  sufficient,    and    that   the 
administrator  of  the  principal  was  entitled  to  recover  it ;'  that 
the  discount   in  good    faith    and   without   notice   of  the   prin- 
cipal's death,  of  a  note  put  into  circulation  by  an  agent  after 
that  event,  conferred  no  right  against  the  estate  of  the  prin- 
cipal ;•  that  the  sale  of  real  estate  by  an  agent  after  the  death  of 
his  principal,  but  in  ignorance  of  it,  was  not  binding  upon  the 
estate,*  and  hence  not  upon  the  purchaser  ;•  that  the  act  of  an 
agent  in  separating,  measuring  and  delivering,  after  the  death  of 
his  principal,  a  quantity  of  corn  that  had  been  bargained  by  the 
principal  in  his  lifetime,  but  the  title  to  which,  by  want  of  such 
separating,  measuring  and  delivering,  had  not  passed  to  the  other 
party,  was  not  good  against   the   principal's  estate  ;•    that   an 
agent's  power  to  buy  goods  for  his  principal  ceases  with  his 
death,  and  that  the  seller  conld  not  recover  against  the  adminis- 
trators of  the  principal's  estate,  though  the  fact  of  the  death  was 
unknown  both  to  the  seller  and  the  agent.' 

But  where  an  agent,  authorized  to  buy  goods,  sent  an  order  for 
them  by  mail  on  the  day  before  the  principal  died,  to  a  non-resi- 
dent merchant  with  whom  he  had  a  general  arrangement  to  sup- 
ply goods  on  such  orders,  and  the  merchant  filled  the  order  within 
a  reasonable  time  in  ignorance  of  the  principal's  death,  it  was 
held  that  the  contract  was  binding  as  of  the  day  on  which  the 
order  was  deposited  in  the  mail,  and  that  the  principal's  estate 

» Bennett,  J.,  in  Michigan  Ins.  Co.  « Jenkins    «.    Atkins,     1    Humph. 

fl.  Leavenworth,  supra.  (Tenn.)  294,  84  Am.  Dec.  648. 

•  Davis  tj.  Windsor  Savings  Bank,  »Levfi8«.  Kerr,  17  Iowa,  73. 

46  Vt    728;  Clayton  t>.   Merrett,  52  'Cleveland    v.   Williams,   29  Tex. 

Miss  353.  204,  94  Am.  Dec.  274. 

>  Michigan  Ins.  Co.  t>.  Leavenworth,  »  Rigs  v.  Cage,  2  Humph.  (Tenn.) 

80  Vt.  11.  850,  87  Am.  Dec.  559. 

164 


Chap.   YIL]  TERMINATION    OF   THE   RELATION.  §  250. 

was  bound,  notwithstanding  the  order  was  not  received  by  the 
merchant  until  after  the  deatli  of  the  principal.' 

§  247.  Death  of  Partner  or  joint  Owner  dissolves  Agenoy. 
The  death  of  one  partner  ordinarily  operates  to  dissolve  the 
partnership,  and  the  partnership  being  dissolved,  the  authority 
«f  an  agent  appointed  by  the  firm  thereupon  ceases,  where  the 
authority  is  not  coupled  with  an  interest.*  The  same  effect 
would  also  ordinarily  follow  from  the  death  of  one  of  two  joint 
owners,  their  joint  interest  being  thereby  severed.' 

It  has  been  held  that  the  death  of  one  of  two  partners  does 
not  relieve  the  firm  of  liability  to  an  agent  who  has  been  engaged 
for  a  definite  period,*  but  a  contrary  result  has  also  been 
reached.* 

§  24:8.  Death  of  Principal  dissolves  Authority  of  Substitute. 
The  death  of  the  principal  not  only  dissolves  the  authority  of 
the  agent  within  the  limits  referred  to,  but  also  that  of  a  substi- 
tute or  subagent  appointed  by  the  agent,  whether  appointed 
with  the  consent  and  authority  of  the  principal  or  not.* 

b.    By  Death  of  the  Agent. 

§  249.  General  Rule  —  Death  of  Agent  terminates  Agenoy. 
Upon  the  death  of  the  agent  invested  with  a  mere  power,  the 
agency  is  terminated.  There  is  then  no  one  to  exercise  the  de- 
rivative authority  which  must  of  course  cease  to  flow.  If  the 
agent  were  one  selected  for  his  skill,  judgment  or  discretion,  this 
furnishes  an  additional  reason  why  the  authority  should  be  held 
not  to  descend  to  the  personal  representatives  of  the  agent,  with 
whom  the  principal  may  be  unacquainted  and  to  whom  he  might 
be  unwilling  to  confide  the  power.' 

§  250.     Not  when  coupled  with  an  Interest    Where,  however, 

'Garrett  «.   Trabue,  83  Ala.   227;  'Tasker  v.  Shepherd,  6  H.  &  N. 

Hatchett  v.  Molton,  76  Ala.  410.  575;  Burnet  v.  Hope,  9  Ont.  Rep.  10. 

9  See  ante,  %  221 ;  McNaughton   «.  •  Peries  v.  Aycinena,  3  W.  &  Serg. 

Moore,   1   Hayw.  (N.    C.)   189.     See  (Penn.)  79. 

Bank  of  New  York  «.  Vanderhorst,  TQage  v.   Allison,   1  Brer.  (S.  C.) 

32  N.  T.  553.  495,  2  Am.  Dec.  682;  Merrick's  Estate 

8  See  ante,  §  222;  Rowe  v.  Rand,  111  8  Watts  &  Serg.  (Penn.)  402;  Adriance 

Ind.  206.  «.  Rutherford,  67  Mich.  170. 

♦  Fereira  v.  Sayres,  5  Watts  &  Serg. 
(Penn.)  210,  40  Am.  Dec.  496. 

165 


§  251.  THE   LAW   OF    AGENCY.  [Book  I. 

tlie  agent  has  acquired  with  the  power  an  estate  or  interest  in  the 
thing  which  is  the  subject  of  the  agency,  his  death  will  not 
operate  to  defeat  it.  Thus  the  power  of  sale  conferred  upon  a 
mortgagee  is  not  revoked  by  his  death,  but  may  be  exercised  by 
his  representatives  or  assigns.' 

§  251.  When  Death,  of  one  of  two  Agents  terminates  Agenoy. 
As  has  been  seen,  a  power  confided  to  two  or  more  private  agents 
must  ordinarily  be  exercised  by  all  of  them  jointly ;  the  death  of 
one  of  them  therefore,  where  the  authority  is  joint,  renders  the 
further  execution  of  the  agency  impossible,  and  it  is  therefore 
terminated.'  "Where  however  the  agency  is  joint  and  several, 
the  death  of  one  agent  does  not  terminate  it.' 

§  252.  Effect  on  Substitute.  Where  the  agent  has  appointed 
a  substitute  or  subagent  without  direct  authority,  and  for  his 
own  convenience  merely,  the  death  of  the  agent  annuls  the  au- 
thority of  the  subagent  or  substitute,*  and  this  rule  also  applies 
even  though  the  agent  was  expressly  given  the  right  of  substitu- 
tion.* Where,  however,  the  subagent,  though  appointed  by  the 
agent,  derives  his  authority  directly  from  the  principal,  it  will 
not  be  effected  by  the  death  of  the  agent.* 

II. 

BY   INSANFFY   OF   ONE   OP  THE   PARTIES. 

1.     By  Insanity  of  the  Principal. 

%  253.  In  general.  The  act  of  every  agent  exercising  a  bare 
power  of  authority  necessarily  presupposes,  as  has  been  seen,  the 
existence  of  a  principal  competent  to  perform  the  same  act  him- 
self in  his  own  behalf.  It  is  his  will  that  is  being  carried  out 
through  the  medium  of  the  agent.     If  for  any  reason,  therefore* 

» Collins  ».  Hopkins,  7  Iowa,  463;  Rep.   450;  Bank  t>.  Vanderhorst,  89 

Harnickell  «.  Orndorff,  35  Md.  341;  N.  Y.  553. 

Menia  c.  Lewis,  90  III.  505;  Lewis  t).  *  Jackson    Ins.    Co.    e.    Partee,    9 

Wells,  50  Ala.  198.  Heisk.  (Tenn  )  296. 

2 Hartford  Fire  Ins.  Co.  v.  "Wilcox,  'Lehigh Coal  &  Nav.  Co.  c.  Mohr, 

57  111.  180;  Marline  v.  International  83  Penn.  St.  228,  24  Am.  Rep.  161; 

L.  Ins.  Society,  53  N.  Y.  339,  13  Am.  Watt   p.iWatt,   2  Barb.  (N.  Y.)  Ch. 

Rep.    539;  Rowe  v.  Rand,    111   Ind.  371;  Peries  e.  Aycinena,  3  Watts  & 

206,  12  K  East.  Rep.  377.  Ser.  (Penn.)  79. 

3  Wilson  V.  Stewart,  5  Penn.  L.  J.  'Smith  «.  White,  5  Dana  (Ky.)87a, 

166 


Chap.  YII.]  TERMINATION    OF   THE   RELATION.  §  257. 

the  principal  becomes  incapable  of  acting  and  exercising  an  in- 
tolligont  will  in  regard  to  the  transaction,  it  is  evident  that  an 
essential  elenaent  in  the  relation  is  lacking,  and  while  that  ele- 
ment remains  absent,  the  further  exercise  of  the  relation  must 
be  suspended. 

§  25i.  General  Rule.  It  is  the  general  rule,  therefore,  that 
the  after-occurring  insanity  of  the  principal,  or  his  incapacity  to 
exercise  any  volition  upon  the  subject  by  reason  of  an  entire  loss 
of  mental  power,  operates  as  a  revocation  or  suspension  for  the 
time  being,  of  the  authority  of  an  agent  acting  under  a  bare 
power.  If,  on  the  recovery  of  the  principal,  he  manifests  no  will 
to  terminate  the  authority,  it  may  be  considered  as  a  mere  sus- 
pension, and  his  assent  to  acts  done  during  the  suspension  may 
be  inferred  from  his  forbearing  to  express  dissent  when  they 
come  to  his  knowledge.* 

§  255.  But— Ignorance  of  Insanity.  But  this  general  rule  is 
subject  to  the  exception  ordinarily  made  in  dealing  with  an  in- 
sane person,  that  when  third  persons  in  good  faith,  relying  upon 
an  apparent  authority  and  in  ignorance  of  the  principal's  insan- 
ity have  given  a  consideration  of  value,  they  will  be  protected.* 

§  256.  When  coupled  with  an  Interest.  And  where  the  au- 
thority of  the  agent  is  coupled  with  such  an  estate  or  interest 
that  he  may  exercise  it  in  his  own  name,  the  after-occurring  in- 
sanity of  the  principal  will  not  afifect  it.'  Thus  a  mortgagee's 
power  of  sale  is  not  revoked  by  the  after-occurring  insanity  of  the 
mortgagor.* 

5  257.  What  Evidence  of  Insanity  sufficient.  It  has  been 
held  that  the  insanity  of  the  principal  must  be  established  as  a 
fact  by  an  inquisition  before  it  would  revoke  the  agency,*  and 

'  Davis  r.  Lane,  10  N.  H.  156,   160;  156;  Drew  «  Nunn,  4  Q.  B.  Div.  661, 

Matlhiesson,  &c.  Co.  v.  McMahon,38  29  Eng.  Rep.  93. 

N.  J.  L.  536;  Hill  v.  Day,   34  N.  J.  » Davis   ».   Lane,   10  K   H.    158; 

Eq.    150;    Bunce   v.      Gallagher,    5  Matthiesson  «.  McMahon,  88  N.   J. 

Blatch.  (U.    S.  C.    C.)  481;  Drew  v.  L.  536;  Hill  v.  Day,  84  N.  J.  Eq.  150; 

Nunn,  4  Q.   B.   Div.   661,  29  Eng.  Wallis  c.  Manhattan  Co.  2  Hall  (N. 

Rep.  (Moak.)  93.  Y.)  495. 

2  xMatthiesson  v.  McMahon,   88  N.  *  Berry  v.  Skinner,  80  Md.  567. 

J  L  536;  Davis  v.   Lane,  10  N.   H.  •  Wallis  «.  Manhattan  Co.   2  HaU 

(N.  Y.)  495. 

167 


§  258.  THE   LAW   OF   AGENCY.  [Book  I. 

this  view  is  approved  by  Chancellor  Kent  '  in  his  Commentaries, 
but  it  is  believed  that  the  weight  of  authority,  as  well  as  sound 
reasoning,  leads  to  the  conclusion  that  the  after-occurring  insanity 
of  the  principal  operates,  per  se,  as  a  revocation  or  suspension  of 
the  agency,  except  in  cases  where  a  consideration  has  previously 
been  advanced  in  the  transaction  which  was  the  subject-matter  of 
the  agency  so  that  the  power  became  coupled  with  an  interest,  or 
where  a  consideration  of  value  is  given  by  a  third  person,  trust- 
ing to  an  apparent  authority  in  ignorance  of  the  principal's  in- 
capacity.' The  mere  fact  that  a  guardian  has  been  appointed 
over  the  principal  as  an  insane  person  is  not  sufficient  without 
proof  that  the  insanity  was  of  such  a  character  as  disqualified 
him  from  making  a  valid  contract.* 

2.     By  Insanity  of  the  Agent. 

§  258.  In  general.  The  proper  exercise  of  the  authority  con- 
ferred implies  in  every  case  the  exercise  of  more  or  less  intelli- 
gence upon  the  part  of  the  agent,  and  the  subsequent  loss  of  that 
intelligence  by  the  agent  renders  the  proper  performance  of  his 
duty  thereafter  impossible.  This  is  especially  true  where  the 
a^ent  was  selected  for  his  mental  capacity  or  endowments,  as  in 
the  case  of  an  attorney,  architect  or  author. 

8  259.  General  Rule— Terminates  Agency  unless  coupled  with 
an  Interest.  The  after-occurring  insanity  of  the  agent  to  such  a 
degree  as  to  incapacitate  him  from  further  execution  of  the  agency 
operates  as  a  dissolution  or  suspension  for  the  time  being,  of  hia 
authority  in  all  cases  except  he  has  with  it  an  estate  or  interest  in 
the  thing  which  is  the  subject-matter  of  the  agency.  Mere  par 
tial  derangement  or  monomania  would  not  necessarily  have  that 
effect,  unless  the  mania  related  to  the  subject-matter  of  the 
agency  or  destroyed  the  agent's  capacity  for  its  proper  execution. 

§  2G0.  How  when  Insanity  unknown.  Executed  dealings  had 
by  third  persons  with  the  agent  in  good  faith  and  in  ignorance 
of  his  insanity,  could  not  be  affected  by  it,  where  no  advantage 
had  been  taken  of  it  and  the  parties  could  not  be  restored  to  their 
original  situation.* 

»II  Kent's  Com.  645.  156;  Bunce  «.   Gallagher,   5  Blatch. 

»  Matthiesson   v.    McMahon,  88  N.      (U.  8.  C.  C.)  481. 
J.  L.  536;  Davis  v.  Lane,   10  N.   H.  »  Motley  v.  Head,  43  Vt.  638. 

«  See  ante,  §  255. 
168 


Chap.  YU.]  TERMINATION    OF   THE    RELATION.  §  265. 

§  261.  Insanity  of  one  of  two  or  more  Agents.  For  the  same 
reason  that  the  death  of  one  of  two  or  more  joint  agents  oper- 
ates to  dissolve  the  agency,  the  insanity  of  one  of  two  or  more 
joint  agents  has  the  same  effect.'  If,  however,  the  agency  was 
joint  and  several,  it  may  be  executed  by  the  others. 

§  262.  Effect  on  Subagents.  The  termination  of  the  agent's 
authority  would  also  bring  to  an  end  the  authority  of  the  substi- 
tutes and  subagents  who  derived  their  powers  from  him.  But 
if  the  subagent  was  appointed  with  the  authority  of  the  princi- 
pal, the  insanity  of  the  agent  would  not  necessarily  operate  to 
dissolve  the  subagent's  authority. 

3.     By  Barikrwptcy  of  one  of  the  Parties, 
a.    Bankruptcy  of  Principal. 

^  263.  General  Rule— Bankruptcy  of  Principal  terminates 
Agent's  Authority.  The  legal  bankruptcy  of  the  principal  or 
his  assignment  for  the  benefit  of  creditors  of  the  subject-matter 
of  the  agency,  operates  to  revoke  the  authority  of  the  agent  for 
the  transaction  of  the  principal's  business.  By  this  event  the 
principal's  control  and  management  of  his  affairs  is  divested  and 
confided  to  the  assignee  or  trustee  for  the  benefit  of  his  creditors, 
who  is  thereupon  entitled  to  collect  and  possess  the  bankrupt's 
credits  and  property,  and  the  subject-matter  of  the  agency  passes 
under  his  control.* 

§  264.  Mere  Insolvency  not  enough.  The  mere  insolvency, 
or  inability  of  the  principal  to  pay  his  debts  when  due,  would  not 
have  this  effect.  It  only  results  from  the  operation  of  the  law 
when,  either  voluntarily  or  involuntarily,  the  principal  surrenders 
and  the  law  assumes  the  control  of  his  affairs. 

§  265.  Agent's  Authority  not  dissolved  when  coupled  with 
an  Interest.  Where  however  the  authority  of  the  agent  is 
coupled  with  an  interest,  the  bankruptcy  of  the  principal  will 
not  dissolve  it.  Thus  the  power  of  sale  conferred  upon  a  mort- 
gagee is  not  revoked  by  the  mortgagor's  bankruptcy.* 

»  Salisbury  «.  Brisbane,   61  N.  Y.      per  251;    Parker  v.    Smith,  16  East 
617;  Rowe  u.  Rand,  111   Ind.  206,  12      882. 
N.  East.  Rep.  877.  •  Hall  v.  Bliss,  118  Mass.  554;  Dixon 

s  Minett    v.    Forrester,    4    Taunt,      «.  Ewart,  3  Meriv.  823. 
641;  Drinkwater  v.   Goodwin,  Cow- 

169 


§  266.  THE   LAW   OF   AGENCY.  [Book  L 

§  266.  How  when  Bankruptcy  unknown.  Where  after  the 
act  of  bankruptcy  but  before  adjudication,  the  agent  deals  by  vir- 
tue of  the  power  with  third  persons  who  are  ignorant  of  the 
bankruptcy  and  who  with  good  faith  part  with  value  upon  the 
strength  of  the  agent's  authority,  their  rights  will  be  protected.' 

b.     Bankruptcy  of  the  Agent. 

§  267.  General  Rule.  The  bankruptcy  of  a  business  agent, 
as  for  example,  an  agent  appointed  to  sell  merchandise,'  or  to  re- 
ceive payment  of  money  due  his  principal,*  operates  as  a  revoca- 
tion of  his  authority,  but  not  where  his  authority  is  merely  to  do 
some  formal  act,  as  the  execution  of  a  deed  in  the  name  of  hia 
principal,  or  the  carrying  out  of  some  existing  trust  which  is  in- 
cumbent upon  him.* 

4.    By  Marriage, 

§  268.  In  general.  The  marriage  of  the  principal  will,  in 
certain  cases,  operate  to  revoke  a  power  previously  given,  where 
the  power  will  defeat  or  impair  rights  acquired  by  the  marriage. 

Thus  where  a  man  gave  a  power  of  attorney  to  another  to  sell 
his  homestead,  but  before  a  sale  was  effected  the  principal  mar- 
ried, it  was  held  that  the  marriage  operated  as  a  revocation  of 
the  power.  By  the  marriage  the  wife  acquired  interests  in  the 
property  of  which  she  could  only  be  divested  with  her  consent, 
evidenced  by  her  joining  in  the  deed,  or  in  the  power  of  attorney 
by  virtue  of  which  the  deed  was  executed.* 

So  at  the  common  law,  the  subsequent  marriage  of  z,feme  sole 
operated  to  revoke  a  power  of  attorney  previously  executed  by 
her,  and  the  same  rule  would  still  apply  wherever  the  modern 
married  woman's  acts  have  not  clothed  her  with  full  capacity  to 
deal  as  sole  with  her  own  property.* 

6.     By  War. 
%  269.     In  general.     Every  kind  of   trading,  or  commercial 

'  Ex  parte  Snowball,   L.  R.   7  Ch.  •  Hudson  t.  Granger,  mpra. 

App.  548.  *  Dixon  r.  Ewart,  3  Mer.  333;  Hud- 

*  Audenried  v.  Betteley,   8    Allen  son  v.  Granger,  tupra. 
CMass.)  302;  Scott  v.    Surman,  Willes  'Henderson  v.  Ford,  46  Tex.  637. 

(K.   B.)  400;  Hudson  «.  Granger,   5         •  Wambole  ».  Foote,  3  Dak.  1. 
Barn.  &  Aid.  37. 

170 


Chap.  YII.]  TERMINATION    OF   THE   EELATION.  §  SfiT* 

dealing,  or  intercourse,  whether  bj  transmission  of  money  or 
goods,  or  of  orders  for  the  delivery  of  either,  between  two  conn- 
tries  at  war,  directly  or  indirectly,  or  through  the  intervention  of 
third  persons  or  partnerships,  or  by  contracts  in  any  form  looking 
to  or  involving  such  transmission  are  prohibited,' 

It  results,  therefore,  that  war  between  the  state  or  country  of 
tlie  principal  and  that  of  the  agent,  as  a  general  rule,  renders  fur- 
ther prosecution  of  the  agency  unlawful  and  operates  to  dissolve 
tlie  relation. 

It  is  said  by  a  learned  judge  :*  "  That  war  suspends  all  com- 
mercial intercourse  between  the  citizens  of  two  belligerent  coun- 
tries or  states,  except  so  far  as  may  be  allowed  by  the  sovereign 
authority,  has  been  so  often  asserted  and  explained  in  this 
court  within  the  last  fifteen  years,  that  any  further  discussion  of 
that  proposition  would  be  out  of  place.  As  a  consequence  of 
this  fundamental  proposition  it  must  follow  that  no  active  busi- 
ness can  be  maintained  either  personally  or  by  correspondence  or 
through  an  agent,  by  the  citizens  of  one  belligerent  with  the 
citizens  of  the  other.  The  only  exception  to  the  rule  recognized 
in  the  books,  if  we  lay  out  of  view  contracts  for  ransom  and 
other  matters  of  absolute  necessity,  is  that  of  allowing  the  pay- 
ment of  debts  to  an  agent  of  an  alien  enemy,  where  such  agent 
resides  in  the  same  state  with  the  debtor.  But  this  indulgfence 
is  subject  to  restrictions.  In  the  first  place  it  must  not  be  done 
with  the  view  of  transmitting  the  funds  to  the  principal  during 
the  continuance  of  the  war,  though  if  so  transmitted  without  the 
debtor's  connivance,  he  will  not  be  responsible  for  it, 

"  In  the  next  place,  in  order  to  the  subsistence  of  the  agency 
during  the  war,  it  must  have  the  assent  of  the  parties  thereto, — 
the  principal  and  the  agent.  As  war  suspends  all  intercourse 
between  them,  preventing  any  instructions,  supervision,  or 
knowledge  of  what  takes  place  on  the  one  part,  and  any  report 
or  application  for  advice  on  the  other,  this  relation  necessarily 
ceases  on  the  breaking  out  of  hostilities  even  for  the  limited 
purpose  before  mentioned,  unless  continued  by  the  mutual  as- 
sent of  the  parties.     It  is  not  compulsory ;  nor  can  it  be  made  so 

'  Kershaw  c.  Kelsey,  100  Mass.  561,       United  States,  15  Wall.  (U.  8.)  395, 
1   Am.  Rep.    142;  Woolsey  Interna-      400. 

tional   Law,    §117;    Montgomery   v.  •  Bradley,  J.  in  Insurance  Co.  «l 

Davis,  94  U.  8.  425. 

171 


§  269.  THB   LA-W  OF   AOBNOT.  [Book  L 

on  either  side,  to  subserve  the  ends  of  third  parties.  If  the 
agent  continues  to  act  as  such,  and  his  so  acting  is  subsequently 
ratified  by  the  principal,  or  if  the  principal's  assent  is  evinced  by 
any  other  circumstances,  then  third  parties  may  safely  pay  money 
for  the  use  of  the  principal  into  the  agent's  hands;  but  not  other- 
wise. It  is  not  enough  that  there  was  an  agency  prior  to  the  war. 
It  would  be  contrary  to  reason  that  a  man  without  his  consent 
should  continue  to  be  bound  by  the  acts  of  one  whose  relations 
to  him  have  undergone  such  a  fundamental  alteration  as  that 
produced  by  a  war  between  the  two  countries  to  which  they 
respectively  belong ;  with  whom  he  can  have  no  correspondence, 
to  whom  he  can  communicate  no  instructions,  and  over  whom  he 
can  exercise  no  control.  It  would  be  equally  unreasonable  that 
the  agent  should  be  compelled  to  continue  in  the  service  of 
one  whom  the  law  of  nations  declares  to  be  his  public  enemy. 
If  the  agent  has  property  of  the  principal  in  his  possession  or 
control,  good  faith  and  fidelity  to  his  trust  will  require  him  to 
keep  it  safely  during  the  war  and  to  restore  it  faithfully  at  its 
close.     This  is  all.     *     *     » 

"  What  particuliar  circumstances  will  be  sufficient  to  show  the 
consent  of  one  person  that  another  shall  act  as  his  agent  to  receive 
payment  of  debts  in  an  enemy's  country  during  war  may  some- 
times be  difficult  to  determine.  Emerigon  says  that  if  a  foreigner 
is  forced  to  depart  from  one  country  in  consequence  of  a  decla- 
ration of  war  with  his  own,  he  may  leave  a  power  of  attorney 
to  a  friend  to  collect  his  debts  and  even  to  sue  for  them.*  But 
though  a  power  of  attorney,  to  collect  debts,  given  under  such 
circumstances,  might  be  valid,  it  is  generally  conceded  that  a 
power  of  attorney  cannot  be  given  during  the  existence  of  war 
by  a  citizen  of  one  of  the  belligerent  countries  resident  therein, 
to  a  citizen  or  resident  of  the  other;  for  that  would  be  holding 
intercourse  with  the  enemy  which  is  forbidden.  Perhaps  it  may 
be  assumed  that  an  agent  ante  helium.,  who  continues  to  act  as 
such  during  the  war  in  the  receipt  of  money  or  property  on  be- 
half of  his  principal  where  it  is  the  manifest  interest  of  the  latter 
that  he  should  do  so,  as  in  the  collection  of  rents  and  other  debts, 
the  assent  of  the  principal  will  be  presumed  unless  the  contrary 
be  shown ;  but  that  where  it  is  against  his  interests,  or  would  im- 

•  Trait6  des  Assurances,  Vol.  1,  667. 
172 


Chap.    VII.]  TERMINATION    OF   THE    RELATION.  §  270. 

pose  upon  him  some  new  obligations  or  burdens,  his  assent  will 
not  be  presumed,  but  must  be  proved,  either  by  his  subsequent 
ratification  or  in  some  other  manner.  In  some  way,  however,  it 
must  appear  that  the  alleged  agent  assumed  to  act  as  such  and 
that  the  alleged  principal  consented  to  his  so  acting."  * 

6.  By  Termination  of  PrincipaVs  Authority. 
§  270.  Prmcipal's  Removal  from  Office  removes  Subordi- 
nates. Where  the  principal's  power  of  appointing  agents  is 
derived  from  his  occupying  an  office  or  position  of  a  fiduciary 
character,  his  ceasing  to  longer  occupy  the  position  operates  to 
determine  the  authority  of  those  also  who  were  his  subordinates 
in  the  performance  of  the  trust.* 

'  Upon  this  question  see  al;  o  New  Robinson  v.  Life  Ass.  Co.  43  N.  Y. 

Yoik  L.  Ins.  Co.  v.  Statham,  93  U.  S.  54.  1   Am     Rep.    490;  Sands  e.  Life 

24:  Wardt).  Smith,  7  Wall.  (U.  S.)  Ins.  Co.  50  N.  Y.  626,  10  Am.  Rep. 

447;  Brown  v.  Hiatts,  15  "Wall  (U.  S.)  535:  Manhattan  Life  Ins   Co.  ».  War- 

177-  Fretz  v  Stover,  22  Id.  198.    The  rick,  20  Gratt.  (Va.)  614,  8  Am.  Rep. 

decisions  in  the  state  courts  do  not  218;    Jones    v.    Harris,     10     Heisk. 

seem  to  be  altogether  harmonious.  (Tenn.)98;  Blackwell  «.  Willard,  65 

See,  Shelby  v.  Offutt,  51   Miss.  128;  N.  C.  555,  6  Am.  Rep.  749. 
Darling  t).  Lewis,  11  Heisk.   (Tenn.)         «  2  Livermore  on  Agency,  §  307. 
125;  Howell  v.  Gordon,  40  Ga.  303; 

173 


§271. 


THE    LAW   OF    AGENCY. 


[Book  IL 


BOOK    II. 

OF  THE  AUTHORITY  CONFERRED ;  ITS  NATURE  AND 

EFFECT. 


CHAPTER  I. 


OF  THE  NATURE  OF  THE  AUTHORITY. 


§  271.  Purpose  of  Book  IL 
272.  Nature  and  Extent  of  the  Au- 
thority. 

I.  Op  Express  and    Implied   Au- 

thority. 

278.  Where  Authority  is  express. 

274.  Where  Authority  is  implied. 

II.  Univbrbal,  General  and  Spe- 

cial Agencies. 

275.  In  general. 

276.  Persons    dealing  with    Agent 

must  ascertain  his  Authority. 

277.  Different  Aspects  of  Question. 

278.  Authority     an     Attribute    of 

Character  bestowed  by  Prin- 
cipal. 

279.  The  Province  of  Instructions — 

Apparent  Authority  cannot 
be  limited  by  secret  Instruc- 
tions. 

280.  The  Doctrine  of  implied  Pow- 

ers. 


t^j  281.  Powers  conferred  by  Usage. 
283.  What  constitutes  Authority. 

283.  General  and  special  Authority. 

284.  Same  Subject. 

285.  Same  Subject— The  true  Difl- 

tinction. 

286.  General  Agency  not  unlimi- 

ted. 

287.  General  Agent  binds  Princi- 

pal only  when  acting  within 
the  Scope  of  his  Authority. 

288.  Special     Agent's     Authority 

must  be  strictly  pursued. 

289.  Third    Persons   must   act    in 

good  Faith. 

290.  Person    dealing    with    Agent 

must     exercise     reasonable 
Prudence. 

291.  Same   Subject  — Must    ascer- 

tain whether  necessary  Con- 
ditions exist. 

292.  Same  Subject  —  Authority  of 

Public  Agents  must   be  as- 
certained. 


R  271.  Purpose  of  Book  11.  It  has  heretofore  been  seen  how 
the  relatiou  of  principal  and  agent  may  be  created  and  how 
it  may  be  terminated.  The  purpose  of  creating  the  agency  is 
to  confer  authority  upon  the  agent,— to  clothe  him  to  a  greater 

1T4 


Cliap.   I.]  NATURE    OF   THE    AUTHORITY.  §  273. 

or  less  extent,  and  for  a  shorter  or  longer  period,  with  a  portion 
of  that  power  with  which  nature  and  the  laws  of  society  have 
invested  the  principal.  For  the  time  being,  and  in  some 
capacity,  the  principal  has  another  self,  who,  by  his  will  and  act 
is  invested  with  the  power  to  speak  and  do  with  like  effect  as  if 
he  himself  should  speak  or  do. 

It  will  be  very  evident  that  to  those  persons  who  may  have  occa- 
sion to  deal  with  the  principal  through  this  other  self,  the  ques- 
tion of  how  fully,  how  certainly  and  for  how  long  a  time,  he  has 
invested  the  latter  with  his  own  personality,  becomes  exceedingly 
important.  And  not  only  this,  but  these  matters  being  ascer- 
tained, it  is  no  less  important  to  determine  whether  any  given  act 
assumed  to  be  done  by  virtue  thereof,  is,  in  reality, within  the 
fullness,  the  certainty  and  the  term  of  the  investment. 

It  will  be  equally  evident  that  these  are  questions  not  always 
easy  of  solution,  not  only  because  men  are  notoriously  careless 
and  indefinite  in  their  words  and  acts,  but  because  even  if,  in  a 
given  case,  a  power  has  been  conferred  in  terms  the  most  express 
and  definite,  the  questions  may  still  arise  whether  the  express 
words  embrace  the  act  assumed  to  be  done  by  virtue  of  them ; 
whether  the  mode  of  doing  has  been  that  contemplated  by  the 
language  used  ;  whether  subsequent  changes  in  the  circumstances 
of  the  parties,  or  the  condition  of  the  subject  matter  have  war- 
r;mted  any  departure  from  that  mode ;  whether  in  consideration 
of  the  nature  of  the  act  to  be  done,  or  the  time  and  place  of  doing 
it,  custom  or  necessity  have  added  to,  or  subtracted  from,  the 
powers  originally  conferred. 

It  is  the  purpose  of  Book  II  to  ascertain  the  principles  upon 
which  the  solution  of  these  questions  rests. 

§  272.  Nature  and  Extent  of  the  Authority.  In  determining 
these  principles  much  must  depend  upon  the  general  nature  and 
extent  of  the  authority  conferred.  In  its  nature,  the  authority 
may  be  either  express  or  implied ;  in  its  extent,  it  may  be  uni- 
versal, general  or  speciaL 


OF   EXPRESS    AND   IMPLIED   AUTHORITT. 

§  273.     Where  Authority  is  express.    It  has  been  seen  in  the 
preceding  book  how  the  creation  of  an  authority  may  be  either 

175 


§  274.  THE   LAW   OF    AGKNOT.  [Book  II. 

express  or  implied,  and  nothing  more  need  now  be  said  upon  that 
particular  subject.  But  in  determining  the  scope  of  the  authority 
the  question  whether  it  is  express  or  implied  becomes  important. 

If  the  power  be  an  express  one,  the  extent  of  the  authority 
conferred,  and  the  time,  place  and  manner  of  its  exercise  may  be 
expected  to  be  clearly  defined.  And  to  the  degree  to  which  this 
is  done,  the  limits  fixed  are  necessarily  conclusive  upon  all  parties 
who  have  notice  of  them.*  So,  to  the  extent  to  which  the  power 
is  express  it  is  exclusive  of  every  other  main  power,  for  while  usage 
and  necessity  may  often  determine  the  mode  in  which  the  power 
is  to  be  exercised,  they  cannot  operate  to  change  the  essential  char- 
acter of  the  authority  conferred.'  Parties  dealing  with  an  agent 
known  by  them  to  be  acting  under  an  express  power,  whether 
the  authority  conferred  be  general  or  special,  are  bound  to  take 
notice  of  the  nature  and  extent  of  the  authority  conferred.  They 
must  be  regarded  as  dealing  with  that  power  before  them,  and 
are  boand  at  their  peril  to  notice  the  limitations  thereto  prescribed 
either  by  its  own  terms  or  by  construction  of  law.*  So  where 
the  act  assumed  to  be  done  by  the  agent  is  one  for  which  the 
authority  is  required  by  law  to  be  conferred  by  a  written  instru- 
ment or  by  a  writing  under  seal,  the  parties  dealing  with  him 
must  take  notice  of  that  fact  and  they  will  be  bound  by  any  limi- 
tations or  restrictions  contained  therein,  although  they  have  not 
had  actual  knowledge  of  them.* 

§  274.     Where  Authority  is  implied.      Although,  as  has  been 

»Towle  V.  Leavitt,  23  N.  H.  360,  55  281,  62  Am.   Dec.   648;    The  Floyd 

Am.  Dec.  195;  Brown  v.  Johnson,  12  Acceptances,    7   Wall.    (U.    8.)   666; 

Smedes  &   M.    (Mis8.)  398,   51   Am.  Whiteside  c.  United  States,  93  U.  8. 

Dec.  118;  Hurley  c.  Watson,  —  Mich.  247;    Lewis    v.     Commissioners,     12 

— ,    13    West.   Rep.    543;    Chaff  e    e.  Kans.   186;  Cray  craft  v.  8elvage,  10 

Stubbs,   37  La.    Ann.    656;    Rust   v.  Bush.  (Ky.)  696;  Dozier  v.  Fietmau, 

Eaton,  24  Fed.  Rep.  830;    Stainback  47  Miss.  647;    Baxter  «.  Lamont,  60 

v.  Read,  11  Gratt.  (Va.)  281,  63  Am.  111.  237;  Cruzant).  Smith,  41Ind.  288; 

Dec.  648;  Bryants.  Moore,  26  Me.  84,  Blackwell  ».    Ketcham,  53  Ind.   184; 

45  Am.  Dec.  96;  Wood  Mow.  &  Reap.  Silliman  r.   Fredericksburg,  &c.,  R. 

Machine  Co.  r.  Crow,  70  Iowa,  340;  R.  Co.  27  Gratt.  (Va.)  120;    Snow  v. 

Siebold  v.   Davis,  67  Iowa,  661;  Bo-  Warner,  10  Mete.  (Mass.)  132,  43  Am. 

oart  V.  Oberne,  36  Kans.  284.  Dec.  417. 

sRobinsone.  MoUett,  L.  R.  7  H.  of  *  Peabody  r.    Hoard,   46  111.    242; 

L.  802,  14  Eng.  Rep.  (Moak.)  177,  re-  Weise's  Appeal,   72   Penn.    St.    851; 

versing  the  same  case  in  L.  R.  7  C.  P.  National  Iron  Armor  Co.  c.  Bruner, 

84,  1  Eng.  Rep.  335.  19  N.  J.  Eq.  331 ;  Reese  v.  Medlock, 

8  Stainback  v.  Read,  11  Gratt.  (Va.)  27  Tex.  120,  84  Am.  Dec.  611. 

176 


Chap.  1.] 


NATURE   OF   THE   AUTHOBITY. 


§271. 


seen,  authority  may  be  implied  from  the  words  and  conduct  of 
the  parties,  or  from  the  circumstances  of  the  case,  yet  the  extent 
of  the  authority  so  implied  cannot  exceed  the  necessary  and  legiti- 
mate effect  of  the  facts  from  which  it  is  inferred,  but  must  be 
limited  to  the  performance  of  like  acts  under  like  circumstances.* 
And  so,  as  has  been  elsewhere  noticed,  the  authority,  if  implied 
at  all,  can  only  be  implied  from  facts.  It  is  not  to  be  created  by 
mere  presumption,  nor  by  any  abstract  considerations,  however 
potent,  that  it  would  be  expedient  or  proper  or  convenient  that 
the  authority  should  exist.*  The  authority  if  it  exists  at  all  must 
tiiid  its  source  in  the  intention  of  the  principal,  either  express- 
ed or  implied.  If  that  intention  cannot  be  shown,  the  authori- 
ty cannot  exist.' 


'  See  Graves  «.  Horton,  —  Minn. 
— ,  35  N.  W.  Rep  568,  where  Mitch- 
ell, J.,  says:  "It  is  true  that  agency 
may  be  proved  from  the  habit  and 
course  of  dealing  between  the  parties; 
tliat  is,  if  one  has  usually  or  fre- 
quently employed  another  to  do  cer- 
tain acts  for  him,  or  has  usually  rati- 
fied such  acts  when  done  by  him, 
such  person  becomes  his  implied 
agent  to  do  fuch  acts;  as,  for  example, 
the  case  of  the  manager  of  a  plantation 
in  buying  supplies  for  it,  or  the  super- 
intendent of  a  sawmill  in  making 
contracts  for  putting  in  logs  for  the 
use  of  the  mill,  which  are  the  cases 
cited  by  respondent.  It  is  also 
true,  as  was  said  in  Wilcox  «.  Rail- 
road Co.,  24  Minn.  269  (which  in- 
volved the  question  of  the  authority 
of  the  person  to  whom  goods  were 
delivered  to  receive  them),  a  single 
act  of  an  a-sumed  agent,  and  a  single 
recognition  of  it,  may  be  of  so  un- 
equivocal and  of  so  positive  and 
comprehensive  a  character  as  to  place 
the  authority  of  the  agent  to  do 
rimilar  acta  for  the  principal  beyond 
question.  It  is  also  true  that  the 
performance  of  subsequent  as  well  as 
prior  acts,  authorized  or  ratified  by 
the    principal,   may  be  evidence  of 


agency,  where  the  acts  are  of  a  simi- 
lar kind,  and  related  to  a  continuous 
series  of  acts  embracing  the  time  of 
the  act  in  controversy,  as  indicating  a 
general  habit  and  course  of  dealing  ; 
as  for  example,  the  acts  of  the  presi- 
dent of  a  railroad  company  in  making 
drafts  in  the  name  of  the  company, 
which  were  honored  by  it,  which 
was  the  case  of  Olcott  e.  Railroad 
Co.,  27  N  Y.  546,  cited  by  counsel. 
But  we  think  the  books  will  be 
searched  in  vain  for  a  case  where  it 
was  ever  held  that  authority  to  nego- 
tiate for  the  sale  of  property  to  one 
person  at  one  time  on  certain  terms, 
the  transfer  to  be  made  by  the  prin- 
cipal in  person,  was  evidence  of 
authority  to  sell  and  transfer  the 
same  property  at  some  former  time 
to  another  person  on  different  terms." 
See  also  Rusby  v.  Scarlett,  5  Esp.  76; 
Baines  v.  Ewing,  L.  R.  1  Exch.  320; 
Day©.  Boyd,  6  Heisk.  (Tenn.)  458; 
Cooley  V.  Willard,  34  111.  68.  85  Am. 
Dec.  296;  Johnson  v.  Wingate,  29 
Me.  404;  Surles  ».  Pipkin,  69  N.  C. 
513;  Washington  Bank  v.  Lewis,  22 
Pick.  (Mass.)  24.    See  also  post,  §  312. 

«Bickford  v.  Menier,  107  N.Y.  490. 

•Law  D.  Stokes,  '■)  Vroom  (N.  J.) 
349,  90  Am.  Dec.  055. 


12 


177 


§  275.  THE   LAW   OF   AQENOT.  [Book    II. 

II. 

UNIVERSAL,    GENERAL   AND    SPECIAL    AGENCIES. 

§  275.  In  general.  The  classification  of  agencies,  based  upon 
the  extent  of  the  authority  conferred,  into  universal,  general  and 
special,  has  already  been  referred  to.  Cases  of  true  universal 
agency  are  very  rare.  They  can  only  be  created  by  clear  and 
unequivocal  language  and  will  not  be  inferred  from  any  general 
expressions,  however  broad.*  No  special  attention  therefore  will 
be  given  to  them  in  this  connection,  what  may  be  said  in 
reference  to  general  agencies  applying  a  fortiori  to  the  uni- 
versal. 

§  276.  Persons  dealing  with  Agent  must  ascertain  his  Author- 
ity. In  approaching  the  consideration  of  the- inquiry  whether  an 
assumed  authority  exists  in  a  given  case,  there  are  certain  funda- 
mental principles  which  must  not  be  lost  sight  of.  Among  these 
are,  as  has  been  seen,  that  the  law  indulges  in  no  bare  presump- 
tions that  an  agency  exists  ;  it  must  be  proved  or  presumed  from 
facts;  that  the  agent  cannot  establish  his  own  authority,  either 
by  his  representations  or  by  assuming  to  exercise  it ;  that  an  au- 
thority cannot  be  established  by  mere  rumor  or  general  reputa- 
tion; that  even  a  general  authority  is  not  an  unlimited  one,  and 
that  every  authority  must  find  its  ultimate  source  in  some  act  of 
the  principal.  Persons  dealing  with  an  assumed  agent  there- 
fore, whether  the  assumed  agency  be  a  general  or  special  one, 
are  bound  at  their  peril,  to  ascertain  not  only  the  fact  of  the 
ao-ency  but  the  extent  of  the  authority,  and  in  case  either  is 
controverted,  the  burden  of  proof  is  upon  them  to  establish 
if 

S  277.  DiEFerent  Aspects  of  Question.  The  authority  of  an 
agent  in  a  given  case  has  three  aspects ;  one,  looking  to  the  rela- 
tions between  the  agent  and  his  principal ;  another,  to  the  rela- 

1  Gulick  c.  Grover,  83  N.  J.  L.  463.  Warner,  10  Mete.  (Mass.)  132,  43  Am. 

97  Am.  Dec.  728.  Ti&c.  417;  Dickinson  County  v.  Miss- 

2 Rice  V.  Peninsular  Club,  53  Mich.  issippi  Valley  Ins.  Co.,  41  Iowa,  286 
87;  Chaffe  v.  Stubbs,  37  La.  Ann.  Beringer  c.  Meanor,  85  Penn.  St.  223 
C56;  Rust  D.  Eaton,  24  Fed.  Rep,  830;  Weise's  Appeal,  72  Penn.  St.  351 
Reitz  P.  Martin,  12  Ind.  306,  74  Am.  Dozier  v.  Freeman,  47  Miss.  647 
Dec.  215;  Hurley  i).  Watson,  —  Mich.  Davidson  «.  Porter,  57  Dl.  300. 
,   13  West.    Rep.    543;    Snow  v. 

178 


Chap.  I.]         NATURE  OF  THE  AUTHORITY.  §  278. 

tions  between  the  agent  and  third  persons ;  and  the  third,  to  the 
relations  between  the  principal  and  third  persons ;  and  no  two  of 
these  aspects  will  always  be  identical.  Thus  the  agent  may  bind 
himself  to  third  persons  by  assuming  to  have  an  authority  which 
he  does  not  in  fact  possess,  but  he  cannot  bind  his  principal  by 
any  such  assumption.  He  may,  however,  bind  his  principal  to 
third  persons,  in  certain  cases,  even  though  the  act  done  exceed- 
ed or  violated  his  instructions  from  his  principal ;  but  in  so  doing 
he  may  also  make  himself  liable  to  his  principal  for  damages  sus- 
tained by  the  latter  on  account  of  such  violation. 

§  278.  Authority  an  Attribute  of  Character  bestowed  by  the 
Principal.  By  the  creation  of  the  agency,  the  principal  bestows 
upon  the  agent  a  certain  character.  For  some  purpose,  during 
some  time  and  to  some  extent,  the  agent  is  to  be  the  alter  ego, — 
the  other  self,  of  the  principal.  This  purpose,  time  and  extent 
are  determined  by  the  principal  to  suit  the  needs  or  objects  which 
he  has  in  view,  and  which  the  agent  is  expected  to  accomplish. 
These,  however,  are  matters  in  which  third  persons  have  no  part ; 
they  are  considered  and  determined  by  the  principal  alone. 
What  third  persons  are  interested  in,  is,  not  the  secret  processes 
of  the  principal's  mind,  but  the  visible  result  of  those  processes, 
— the  character  in  which  the  agent  is  held  out  by  the  principal 
to  those  who  may  have  occasion  or  opportunity  to  deal  with  him. 
This  character  is  a  tangible,  discernible  thing,  and,  so  far  as  third 
persons  are  concerned,  must  be  held  to  be  the  authorized,  as  it  is 
the  only,  expression  and  evidence  from  which  the  principal  in- 
tends that  they  shall  determine  his  purposes  and  objects.  They 
must  conclude,  and  have  a  right  to  conclude,  that  the  principal 
intends  the  agent  to  have  and  exercise  those  powers,  and  those 
only,  which  necessarily,  properly  and  legitimately  belong  to  the 
character  in  which  he  holds  him  out. 

The  authority  of  an  agent  in  any  given  case,  therefore,  is  an 
attribute  of  the  character  bestowed  upon  him  in  that  case  by  the 
principal.  Thus  if  the  principal  has  by  his  express  act,  or  as  the 
logical  and  legal  result  of  his  words  or  conduct,  impressed  upon 
the  agent  the  character  of  one  authorized  to  act  or  speak  for  him 
in  a  given  capacity,  authority  so  to  speak  and  act,  follows  as  a 
necessary  attribute  of  the  character,  and  the  principal  having 
conferred  the  character  will  not  be  heard  to  assert,  as  against 
third  persons  who  have  relied  thereon  in  good  faith,  that  he  did 

179 


§  279.  THE   LAW   OF   AGENCY.  [Book  II. 

not  intend  to  impose  so  much  authority,  or  that  he  had  given  the 
agent  express  instructions  not  to  exercise  it.  The  latter  question 
is  one  to  be  settled  between  the  agent  and  himself.  It  rested 
with  the  principal  to  determine  in  the  first  instance  what  charac- 
ter he  would  impart,  but  having  made  the  determination  and 
imparted  the  character,  he  must  be  held  to  have  intended  also 
the  usual  and  legal  attributes  of  that  character. 

§  279.  The  Province  of  Instructions— Apparent  Authority 
cannot  be  limited  by  secret  Instructions.  It  is  not  to  be  in- 
ferred, however,  that  third  persons  have  the  right  to  attribute  to 
the  agent  any  powers  they  please,  and  by  so  doing  bind  the  prin- 
cipal. It  is  lawful  for  the  principal  to  confer  as  much  or  as  little 
authority  as  he  sees  tit.  He  may  impose  all  such  lawful  restric- 
tions and  limitations  upon  it  as  he  thinks  desirable,  and  these 
restrictions  and  limitations  will  be  as  binding  and  conclusive 
upon  third  persons  who  have  notice  of  them  as  upon  the  agent, 
provided  the  principal  has  done  nothing  to  waive  or  nullify  them. 
But  on  the  other  hand,  instructions  or  limitations  which  are  not 
disclosed  cannot  be  permitted  to  affect  apparent  powers. 

The  criterion  in  this  case,  as  in  others,  is  the  character  be- 
stowed by  the  principal.  He  may  not  hold  the  agent  out  in  the 
character  of  one  having  a  general  or  a  special  power,  and  bind 
third  persons  who  have  relied  thereon  in  good  faith,  by  secret 
limitations  and  restrictions  upon  the  agent's  authority  which  are 
inconsistent  with  the  character  bestowed.  Although  the  agent 
violates  his  instructions  or  exceeds  the  limits  set  to  his  authority, 
he  will  yet  bind  his  principal  to  such  third  persons,  if  his  acts  are 
within  the  scope  of  the  authority  which  the  principal  has  caused 
or  permitted  him  to  appear  to  possess.  But  if  the  agent  be  not 
held  out  as  one  possessing  other  than  the  limited  and  restricted 
power,  then  the  instructions  and  the  authority  may  coincide.' 

»Munn     V.     Commission    Co.    15  Dec.  358;  Towle  u  Leavitt,  23  N.  H 

Johns.   (N.  T.)  44,  8  Am.  Dec.  219;  860,    55    Am.    Dec.    195;   Bryant  v. 

Rossiter  e.  Rossiter,  8  Wend.  (N.  Y.)  Moore,  26   Me.    84,    45  Am.  Dec.  96; 

494.  24  Am.  Dec.  62;  Walker  c.  Skip-  Merchants  Bank  «.    Central  Bank,  1 

with,  Meigs  (Tenn  )  502,  33  Am.  Dec.  Ga.  418.  44  Am.  Dec,   665;  Williams 

161;  Commercial   Bank®.  Kortright,  v.    Getty,   31  Penn.  St.   461,72  Am. 

22  Wend.  (N.  Y.)  348,  34  Am.  Dec.  Dec.  757;  Lister  e.  Allen,  31  Md.  543,^ 

317;  Topham  v.  Roche.  2  Hill  (S.  C.)  100    Am     Dec.    78;    Carmichael    ■». 

807,'  27  Am.    Dec.    387;   Lobdell  v.  Buck,  10  Rich.  (S.  C.)  L.  332,  70  Am. 

Baker,  1  Mete.  (Mass.)   193,   35  Am.  Dec.  226;  Butler  v.   Maples,  9  Wall. 

180 


Ohap.  I.] 


NATURE   OF   THE   AUTHORITY. 


§281. 


§  280.  The  Doctrine  of  implied  Powers.  It  is  a  fundamental 
principle  in  the  law  of  agency  that  every  delegation  of  power 
carries  with  it  the  authority  to  do  all  those  things  which  are  rea- 
sonably necessary  and  proper  to  carry  into  effect  the  main  power 
conferred,  and  which  are  not  forbidden.*  The  reasons  and  pur- 
poses of  this  rule  will  be  more  fully  considered  hereafter,  but  it 
requires  to  be  mentioned  in  this  place  as  one  of  the  elements 
which  go  to  make  up  the  authority  of  the  agent  in  a  given  case. 

§  281.  Powers  conferred  by  Usage.  Where  the  principal 
confers  upon  his  agent  an  authority  of  a  kind,  or  empowers  him 
to  transact  business  of  a  nature,  in  reference  to  which  there  is  a 
well  defined  and  publicly  known  usage,  it  is  the  presumption  of 
the  law,  in  the  absence  of  anything  to  indicate  a  contrary  intent, 
that  the  authority  was  conferred  in  contemplation  of  the  usage, 
and  third  persons,  therefore,  who  deal  with  the  agent  in  good  faith 
and  in  the  exercise  of  reasonable  prudence,  will  be  protected 
against  limitations  upon  the  usual  authority,  of  which  they  had 
no  notice.* 


(U  8.)  766;  Union  Mut.  Ins.  Co.*. 
Wilkinson,  IH  Wall.  (U.  S.)  222; 
Paine  v.  Tillinghast,  52  Conn.  532; 
Abbott  V.  Rose,  63  Me.  194;  Home 
Life  Ins.  Co.  «.  Pierce,  75  111.  426; 
Murphy  v.  Southern  Life  Ins.  Co.  3 
Baxter  (Tenn.)  440;  Cruzan  v.  Smith, 
41  Ind.  288;  Bell  v.  Offutt,  10  Bush 
(Ky.)  632;  Cosgrove  v.  Ogden.  49  K 
T.  255;  Morton  v.  Scull.  23  Ark.  289; 
Furnas  v.  Frankman,  6  Neb.  429; 
Willard  v.  Buckingham,  36  Conn. 
895;  Gelding  v.  Merchant,  43  Ala. 
705;  Adams  Express  Co.  v.  Schles- 
Binger,  75  Penn.  St.  246;  Palmer  ». 
Cheney,  35  Iowa,  281;  Williams  v. 
Mitchell,  17  Mass.  98;  Odiorne  v. 
Maxcy,  13  Mass.  178;  Hough  v.  Doyle, 
4  Rawle  (Penn.)  291 ;  Shelhamer  v. 
Thomas.  7  Serg.  &  R.  (Penn.)  106; 
Wilcox  «.  Routh,  9  Smedes  &  M. 
(Miss.)  476;  Howry  v.  Eppinger.  34 
Mich.  29;  Davenport  v.  Peoria.  &c. 
Ins.  Co.  17  Iowa.  276. 

*  See  post,  §311. 

«  Adams  v.  Pittsburgh  Ins    Co. ,  95 


Penn.  St.  348.  40  Am.  Rep.  663; 
Pickering  v.  Busk.  15  East  38;  White- 
head V.  Tuckett,  15  East  400;  Wil- 
liams V.  Getty,  31  Penn.  St.  461,  73 
Am.  Dec.  757;  York  County  Bank 
V.  Stiue,  24  Md.  447;  Wright  v. 
Solomon,  19  Cal.  64.  79  Am.  Dec. 
196;  Chouteaux  v.  Leech,  18  Penn. 
St.  224.  57  Am.  Dec.  602;  McMasters 
e.  Pennsylvania  R.  R.  Co.  69  Penn. 
St.  374,  8  Am.  Rep.  284;  Minor  v. 
Mechanics  Bank.  1  Pet.  (U.  8.)  46; 
Mount  Olivet  Cemetery  v.  Shubert. 
2  Head  (Tenn.)  116;  Schuchardt  v. 
Aliens.  1  Wall  (U.  S.)  359;  Greely  v. 
Bartlett.  1  Greenl.  (Me.)  172.  10  Am. 
Dec.  54;  Day  v.  Holmes.  103  Mass. 
806;  Daylight  Burner  Co.  v.  Odlin, 
51  N.  H.  56,  12  Am.  Rep.  45;  Smith 
V.  Tracy,  36  N.  Y.  79;  Goodenow  «. 
Tyler.  7  Mass.  36.  5  Am.  Dec.  23; 
Frank  r.  Jenkins,  22  Ohio  St.  597; 
Willard  v.  Buckingham,  36  Conn, 
895;  Randall  v.  Kehlor,  60  Me.  37; 
Upton  V.  Suffolk  County  Mills, 
11  CuBh,  (Mass.)  586;  69  Am.   Dec. 


181 


§282. 


THB   LAW   OF    AQBNCT. 


[Book  II. 


In  order  to  give  the  usage  this  effect  it  must  be  reasonable  ;^  it 
must  not  violate  positive  law  ;*  and  it  must  have  existed  for  such 
a  time,  and  become  so  widely  and  generally  known,  as  to  warrant 
the  presumption  that  the  principal  had  it  in  his  view  at  the  time 
of  the  appointment  of  the  agent.'  But  if  the  usage  was  a 
purely  local  and  particular  one,  the  principal  may  repel  this  pre- 
sumption of  knowledge  by  showing  that  in  fact  he  had  no  notice 
of  it.* 

Usage,  however,  cannot  operate  to  change  the  intrinsic  charac- 
ter of  the  relation,*  nor  will  it  be  permitted  as  between  the 
principal  and  the  agent,  or  as  between  the  principal  and  third 
persons  having  notice  of  them,  to  contravene  express  instruc- 
tions,* or  to  contradict  an  express  contract '  to  the  contrary.  So 
a  usage  not  known  to  the  principal,  cannot  operate  to  authorize 
the  making  of  an  invalid  instead  of  a  valid  contract,  or  to  bind 
him  to  take  one  thing  when  he  has  ordered  another." 

§  282.  What  constitutes  Authority.  The  authority  of  the 
agent,  so  far  as  it  concerns  the  rights  of  third  persons,  may  thus 


163;  Brady  «.  Todd,  9  C.  B.  (N.  S.) 
592;  Pickert  «.  Marston,  68  Wis. 
465,  60  Am.  Rep.  876;  American 
Cent.  Ins.  Co.  v.  McLanathan,  11 
Kans.  533;  Bailey  v.  Bensley,  87 
111.  556;  Phillips  v.  Moir,  69  111.  155. 

»  Knowles  v.  Dow,  22  N.  H.  387, 
56  Ain.  Dec.  163;  Minnesota  Cent.  R. 
R.  Co.  V.  Morgan,  52  Barb.  (N.  Y.) 
217;  Wadley  v.  Davis,  63  Barb.  (N. 
Y.)500. 

s  Raisin  v.  Clark,  41  Md.  158,  20 
Am.  Rep.  66;  Farns worth  v.  Hem- 
mer,  1  Allen  (Mass.)  494,  79  Am. 
Dec.  756. 

» Adams  «.  Pittsburgh  Ins.  Co., 
95  Penn.  St.  248,  40  Am.  Rep. 
663;  Citizens  Bank  «.  Grafflin,  31 
Md.  507,  1  Am.  Rep.  66;  Smith  v. 
Wright,  1  Caines  (N.  Y.)  43,  2  Am. 
Dec.  162;  Porter  v.  Hills,  114  Mass. 
106;  Fowler  v.  Pickering,  119  Mass. 
33. 

*  Walls  V.  Bailey,  49  N.  Y.  464,  10 
Am.  Rep.  407;  Bradley  c.  Wheeler, 
44  N.  Y.  500;  Higgins  v.   Moore,  34 


N.  Y.  417;  Barnard  t>.  Kellogg;  10 
Wall.  (U.  S.)  383;  Fisher  t>.  Sargent, 
10  Cush.  (Mass.)  250;  Caldwell  «. 
Dawson,  4  Mete.  (Ky.)  121. 

•  Robinson  e.  Mollett,  L.  R.  7  H. 
of  L.  802,  14  Eng.  Rep.  (Moak.)  177. 

•  Barksdale  v.  Brown,  1  Nott.  &  M. 
(S.  C.)  517,  9  Am.  Dec.  720;  Hall  ©. 
Storrs,  7  Wis.  253;  Bliss  v.  Arnold, 
8  Vt.  253,30  Am.  Dec.  467;  Hutchings 
V.  Ladd,  16  Mich.  493;  Lehnd  e. 
Douglass,  1  Wend.  (N.  Y.)  490;  Clark 
V.  Van  Norlhwick,  1  Pick.  (Mass) 
343;  Catlin  v.  Smith,  24  Vt.  85;  Day 
V.  Holmes,  103  Mass.  306;  Parsons* 
Martin,  11  Gray  (Mass.)  112. 

1  Brown  v.  Foster,  113  Mass.  133, 
18  Am.  Rep.  463,  Randall  v.  Smith, 
63  Me.  105.  18  Am  Rep.  200;  Rogers 
u.  Woodruff,  23  Ohio  St.  6:J2,  13  Am. 
Rep.  276;  Grinnell  v.  Western  Union 
Tel.  Co.  113  Mass.  299,  18  Am.  Rep. 
485. 

8  Perry  v.  Barnett,  15  Q.  B.  Div. 


182 


Chap.  I.]         NATUBB  OF  THE  AUTHOKITY.  §  282. 

be  a  composite  matter  made  up  of  a  number  of  elements.  It 
consists — 

First,  and  primarily,  of  the  powers  directly  and  intentionally 
conferred  by  the  voluntary  act  of  the  principal.' 

Second,  of  those  incidental  powers  which  are  reasonably  neces- 
sary and  proper  to  carry  into  effect  the  main  powers  conferred 
and  which  are  not  known  to  be  prohibited.* 

Third,  of  those  powers  which  usage  and  custom  have  added  to 
the  main  powers,  and  which  the  parties  are  to  be  deemed  to  have 
had  in  contemplation  at  the  time  of  the  creation  of  the  agency, 
and  which  are  not  known  to  have  been  forbidden.* 

Fourth,  of  all  such  other  powers  as  the  principal  has,  by  his 
direct  act  or  by  negligent  omission  or  acquiescence,  caused  or 
permitted  persons  dealing  with  the  agent  reasonably  to  believe 
that  the  principal  had  conferred.* 

Fifth,  of  all  those  other  powers  whose  exercise  by  the  agent, 
the  principal  has  subsequently,  with  full  knowledge  of  the  facts, 
ratified  and  confirmed.* 

For  the  acts  done  in  pursuance  of  those  powers  which  were 
directly  conferred  or  which  were  incidental  to  those  powers  and 
not  prohibited,  the  principal  is  of  course  responsible,  because 
they  are  the  direct  result  of  his  voluntary  and  intentional  act. 
He  is  likewise  responsible,  and  for  the  same  reasons,  for  those 
acts  which  he  has  intentionally  led  third  persons  to  believe  that  he 
had  authorized.  He  is  responsible  for  the  acts  of  the  agent 
which  he  has,  by  negligent  omission  or  acquiescence,  led  the  per- 
sons dealing  with  the  agent'to  believe  he  has  authorized,  because 
to  deny  them  would  be  a  fraud  upon  innocent  persons.*     He  is 

I  This  of  course  follows  directly  as  •  gee  ante,  Chapter  on  Ratification. 

the    result  of  the  maxim,  Qui  faeit  •  The  general  rule  is  so  well  stated 

per  alium,  facii per  M.  by  Depde,  J.,  in  Law  v.    Stokes,  3 

*  See  ante.  §  280.  Vroom  (N.  J.)  249,  90  Am.  Dec.  655, 

•  See  ante,  §  281.  as  to  warrant  its  full  quotation:  "  A 
«  "  The  scope  of  an  agency  Is  to  be  principal  is  bound  by  the  acts  of  his 

determined  not  alone  from  what  the  agent  within  the  authority  he  has 
principal  may  have  told  the  agent  to  actually  given  him,  which  includes 
do,  but  from  what  he  knows,  or  in  not  only  the  precise  act  which  he  ex- 
the  exercise  of  ordinary  care  and  pressly  authorizes  him  to  do,  but  also 
prudence  ought  to  know,  the  agent  is  whatever  usually  belongs  to  the  do- 
doing  in  the  transaction."  Kingsley  ing  of  it  or  is  necessary  to  its  per- 
V.  Fitts,  51  Vt.  414.  See  cases  cited  formance.  Beyond  that  he  is  liable 
in  §  84,  ante.  for  the  acts  of  the  agent  within  the 

183 


§  2S3.  THB   LAW   OF   AGENCY.  [Book  11. 

responsible  for  those  acts  which  he  has  subsequently  ratified  and 
confirmed  upon  the  ground  that  such  a  ratification  is  equivalent 
to  a  precedent  authority. 

As  between  the  agent  and  the  principal  the  authority  would 
consist  of  the  same  elements  as  in  the  case  of  third  persons,  with 
the  exception  that  the  forbidden  powers  and  secret  limitations 
which  would  not  affect  third  persons  who  were  ignorant  of  them, 
bind  the  agent  who  must  necessarily  have  knowledge  of  them. 

283.  General  and  Speoial  Authority.  These  principles  apply 
to  all  cases.  If  by  express  appointment,  or  by  long  acquiescence, 
recognition  or  course  of  dealing,  one  man  has  held  another  out 
to  the  world  in  the  character  of  one  possessing  the  requisite  au- 
tliority  to  represent  him  in  a  general  way  in  the  transaction  of 
all  of  his  business  of  a  certain  kind,  he  must  be  held  to  have 
conferred  upon  him  the  attributes  and  powers  inherent  in  the 
character  so  bestowed.  Such  an  agent,  the  law  denominates,  for 
convenience  sake,  a  general  agent. 

But  if,  on  the  other  hand,  in  a  single  instance,  either  by  ex- 
press terms  or  by  his  conduct,  he  holds  the  other  out  to  the  world 
in  the  character  of  one  having  authority  to  do  a  single  thing, 
perhaps  in  a  specific  way,  he  must  be  held  to  have  conferred  upon 
him  those  attributes  and  powers,  and  those  only,  which  are  in- 
herent in  that  character.  This  agent,  for  the  same  convenience, 
is  termed  a  special  agent. 

In  either  case,  the  question  of  the  authority  of  the  agent  must 
depend,  so  far  as  it  involves  the  rights  of  innocent  third  persons 
who  have  relied  thereon,  upon  the  character  bestowed  and  not 
upon  the  instructions  given.     Or,  in  other  words,  the  principal 

appearance  of   authority  which  the  cause  to  permit  him  to  dispute  the 

principal  himself  knowingly  permits  authority  of  the  agent  in  such  cases 

the    agent   to    assume,  or  which  he  would  be  to  enable  him  to  commit  a 

holds  the  agent  out  to  the  public  as  fraud    upon    innocent  persons.      In 

possessing.      For    the    acts    of    his  whichever  way  the  liability  of  the 

agent,  within  his  express  authority,  principal  is  established,  it  must  flow 

the    principal    is  liable,  because  the  from  the  act  of  the   principal.     And 

act  of  the  agent  is    the  act  of  the  when  established  it  cannot,on  the  one 

principal.    For  the  acts  of  the  agent  hand  be  qualified  by   the  secret  In- 

within  the  scope  of  the  authority  he  structions  of    the  principal,   nor  on 

holds  the  agent   out    as    having,  or  the  other  hand   be  enlarged   by  the 

knowingly  permits  him  to  assume,  unauthorized  representations  of  the 

the  principal  is  made  responsible;  be-  agent." 

184 


Chap.  I.] 


NATURE   OF   THE   AUTHORITT. 


§  2s;i. 


is  bound  to  third  persons  who  have  relied  thereon  in  good  faith 
and  in  ignorance  of  anj  limitations  or  restrictions,  by  the  appar- 
ent authority  he  has  given  to  the  agent,  and  not  by  the  actual  or 
express  authority  where  that  differs  from  the  apparent,  and  this, 
too,  whether  the  agency  be  a  general  or  a  special  one.' 

But  it  is  not  by  any  means  to  be  inferred  that  the  apparent  and 
the  actual  authority  can  never  coincide,  or  that  the  agent  has,  in 
all  cases,  an  indefinite  quantum  of  power  beyond  or  regardless 
of  his  instructions.  Tlie  actual  and  the  apparent  authority  are 
naturally  and  primarily  the  same,  and  if,  inany  given  case,  it  beheld 
that  the  apparent  exceeds  the  actual,  it  is  because  the  principal 


*  It  has  been  said  by  a  learned 
Judge:  "  The  authority  of  a  general 
agent  may  be  more  or  less  extensive; 
and  he  may  be  more  or  less  limited  in 
his  action  within  the  scope  of  it.  The 
limitation  of  his  authority  may  be 
public  or  private.  If  it  be  public, 
those  who  deal  with  him  must 
regard  it,  or  the  principal  will 
not  be  bound.  If  it  be  private 
the  principal  will  be  bound  when 
agent  is  acting  within  the  scope  of 
his  authority,  although  he  should 
violate  his  secret  instructions.  A 
special  agent  is  one  employed  for  a 
particular  purpose  only.  He  also 
may  have  a  general  authority  to  ac- 
complish that  purpose,  or  be  limited 
to  do  it  in  a  particular  manner.  If 
the  limitation  respecting  the  manner 
of  doing  it  be  public  or  known  to 
the  person  with  whom  he  deals,  the 
principal  will  not  be  bound  if  the  in- 
structions are  exceeded  or  violated. 
If  such  limitation  be  private,  the 
agent  may  accomplish  the  object  in 
violation  of  his  instructions,  and  yet 
bind  his  principal  by  his  acts."  Shep- 
LEY,J.,in  Bryant  w.Moore,  26  Me.  y4, 
45  Am.  Dec.  96.  And  by  another  : 
*'  Where  the  authority  is  limited  in  a 
bona  fide  manner,  and  the  limitation 
is  to  be  disclosed  by  the  agent  and 
is  disclosed  either  with  or  without 
inquiry,    any    departure    from  such 


authority  or  instructions  will  not 
bind  the  principal;  but  where  the 
authority  or  instructions  given  are  in 
the  nature  of  private  instructions  and 
so  designed  to  be,  they  will  not  be 
binding  upon  the  parties  dealing  with 
the  agent.  And  if  the  instructions 
are  of  such  a  nature  that  they  would 
not  be  communicated  if  an  inquiry 
was  made,  (even  though  it  be  the 
duty  of  the  person  dealing  with  the 
agent  to  make  the  inquiry)  it  is  not 
necessary  that  it  should  be  made 
for  it  would  not  be  communicated  if 
made."  Eastman,  J.,  in  Towle  v. 
Leavitt,  23  N.  H.  360,  55  Am.  Dec. 
195. 

"  While  the  rule  is  that  an  agent 
must  act  within  the  scope  of  his  au- 
thority, yet  when  the  agent's  act  af- 
fects innocent  third  parties  the  prin- 
cipal will  be  bound  to  the  extent  of 
the  apparent  authority  conferred  by 
him  on  his  agent.  A  principal  is 
bound  equally  by  the  authority  which 
he  actually  gives,  and  by  that  which 
by  his  own  act  he  appears  to  give." 
Webster  v.  Wray,  17  Neb.  579.  See 
also  Van  Duzer  v.  Howe,  21  N.  Y. 
531;  Reillich  v.  Doll.  54  N.  Y.  284; 
Garrard  v.  Haddan,  67  Penn.  St.  82, 
5  Am.  Rep.  412;  Hatch,  v.  Taylor,  10 
N.  H.  538;  Carmicbael  v.  Buck,  10 
Rich.  (S.  C.)  332,  70  Am.  Dec.  236. 


185 


§  284.  THE   LAW   OF   AGENCY.  [Book  II. 

haS)  bj  his  own  act  or  omission,  caused  it  to  be  so.  The  law  never 

indulges  in  the  bare  presumption  that  they  are  not  identical.  In- 
deed, this  distinction  between  the  actual  and  apparent  authority  is 
in  this  connection  misleading.  So  far  as  third  persons  are  con- 
cerned the  apparent  authority  must  be  regarded  as  the  real  author- 
ity, where  they  have  no  knowledge  or  notice  to  the  contrary. 

§  284.  Same  Subject  The  distinction  between  a  general  and 
a  special  agency  has  been  deemed  to  be  one  of  great  importance, 
and  a  large  number  of  decisions  have  been  made  to  turn  upon  it. 
It  is  believed,  however,  that  the  distinction,  as  it  is  ordinarily 
drawn,  is  highly  artificial  and  unsatisfactory,  if  not  positively 
misleading,  and  that  it  miglit  well  be  dispensed  with. 

The  importance  of  this  distinction,  has  been  said  by  Mr.  Par- 
sons,* whose  language  has  been  much  quoted,  to  lie  in  the  rule 
that  "  if  a  particular  agent  exceed  his  authority,  the  principal  is 
not  bound  ;  but  if  a  general  agent  exceed  his  authority,  the  princi- 
pal is  bound,  provided  the  agent  acted  within  the  ordinary  and 
usual  scope  of  the  business  he  was  authorized  to  transact,  and 
the  party  dealing  with  the  agent  did  not  know  that  he  exceeded 
his  authority."  This  rule,  however,  cannot  be  regarded  as 
strictly  accurate.  So  far  as  the  rights  of  third  persons,  who  have 
no  knowledge  of  limitations  on  his  authority  are  concerned, — and 
this  is  what  the  rule  given  contemplates, — the  agent  must  be 
deemed  to  have  authority  to  do  those  acts  which  are  within  the 
ordinary  and  usual  scope  of  the  business  he  was  empowered  to 
transact.  Such  an  act  therefore  cannot  be  deemed  to  be  in  excess 
of  his  authority.  The  very  fact  that  it  is,  under  such  circum- 
stances, declared  to  be  binding  upon  the  principal  necessarily  pre- 
supposes that  it  was  authorized.  On  the  other  hand,  if  tlie  agent 
really  exceeded  his  authority  the  principal  could  not  be  bound 
whether  the  agency  be  a  general  or  a  special  one.  The  difficulty 
with  this  rule  is  that  it  fails  to  discriminate  between  instructions 
and  authority. 

But  many  statements  of  the  rule  go  still  further  and  it  is  fre- 
quently declared  that  if  the  special  agent  exceeds  his  instructions 
the  principal  is  not  bound ;  while  if  the  general  agent  exceeds 
his  instructions,  the  principal  will  be  bound.  This  statement  is 
still  more  misleading  than  the  other,  and  no  little  confusion  has 

'Parsons  on  Contracts,  Vol.  L,  p.  42. 
186 


Ohap.  I.]         NATUEB  OF  THE  AUTHOEITT.  §  285. 

crept  in  to  the  books  because  of  it.  As  has  been  seen  instruo- 
tions,  even  in  case  of  a  special  agent,  are  not  in  every  case  the 
measure  of  power.  They  may  exactly  encompass  the  authority, 
but  they  do  not  necessarily  do  so.  They  may  be  intentionally  or 
negligently  veaived  or  disregarded  by  the  act  of  the  principal. 
Even  in  the  case  of  a  special  agent,  it  is  the  character  bestowed, 
— the  apparent  authority  conferred, — which  is  the  test,  and  not 
the  instructions  given. 

That  Mr.  Parsons  himself  was  not  misled  by  this  distinction  is 
evident  from  what  he  says  further  on  :  "We  think  the  distinction 
between  a  general  agency  and  a  special  agent  useful,  and  suffi- 
ciently definite  for  practical  purposes,  although  it  may  have  been 
pressed  too  far,  and  relied  upon  too  much  in  determining  the  re- 
sponsibility of  a  principal  for  the  acts  of  an  agent.  It  may,  in- 
deed, be  said  that  every  agency  is,  under  one  aspect,  special,  and 
under  another,  general.  No  agent  has  authority  to  be  in  all  re- 
spects and  for  all  purposes  an  alter  ego  of  his  principal,  binding 
him  by  whatever  the  agent  may  do  in  reference  to  any  subject 
whatever ;  and,  therefore  the  agency  must  be  special  so  far  as  it 
is  limited  by  place  or  time,  or  the  extent  or  character  of  the  work 
to  be  done.  On  the  other  hand  every  agency  must  be  so  far 
general  that  it  must  cover  not  merely  the  precise  thing  to  be  done, 
but  whatever  usually  and  rationally  belongs  to  the  doing  of  it 
Of  late  years,  courts  seem  more  disposed  to  regard  this  dis- 
tinction and  the  rules  founded  upon  it,  as  altogether  subordinate  to 
that  principle  which  may  be  called  the  foundation  of  the  law  of 
agency,  namely,  that  a  principal  is  responsible,  either  when  he  has 
given  to  an  agent  sufficient  authority,  or,  when  he  justifies  a  party 
dealing  with  his  agent  in  believing  that  he  has  given  to  this  agent 
this  authority."  * 

§  285.  Same  Subject— The  true  Distinction.  But  it  is  none 
the  less  true  that  the  scope  of  the  authority  of  a  special  agent  is 
ordinarily  much  more  restricted  than  that  of  a  general  agent. 
The  fact  that  the  authority  is  conferred  in  a  special  instance,  to 

1  Contracts,   Vol.    I.,    pp.    43,    44.  quite  insufficient    to  solve    a    great 

"Thiere  are  in  the  books  many  loose  variety  of  cases.     It  is  unprofitable 

expressions  concerning    the   distinc-  to  dwell  on  that  distinction"     Com- 

tion  between  a  general  and  a  special  stock,.!.,  in  Mechanics'  Bank  v.  New 

agency.  Tlie  distinction  itself  is  highly  York,  &c.,  R.  B.  Co.,  13  N.  Y.  633. 
unsatisfactory    and    will     be    found 

187 


§  285.  THE    LAW    OF    AGENCY.  [Book    II. 

do  a  specific  act  naturally  leads  to,  if  it  does  not  positively 
require,  much  more  minuteness  of  direction  and  much  a^reater 
restrictions  and  limitations.  From  the  very  nature  of  the  case, 
particularity  of  instructions  and  singleness  of  method  are  to  be 
expected,  and  of  this  persons  dealing  with  the  agent  may  well  be 
required  to  take  notice. 

On  the  other  hand,  where  the  agent  is  authorized  to  transact 
all  the  principal's  business  of  a  certain  kind,  the  very  brea<lth  of 
the  employment  and  the  variety  of  the  duties  to  be  performed 
necessarily  involve  more  or  less  of  discretion  and  choice  of 
methods,  and  render  impracticable,  if  not  impossible,  much  of 
particularity  or  precision,  either  as  to  the  exact  means  and  method 
to  be  employed,  or  as  to  the  scope  or  extent  of  the  authority 
itself.  Where  so  little  is  expressed,  more  may  well  be  implied. 
The  fact  of  such  an  authority,  of  itself,  presupposes  a  general 
confidence  bestowed  upon  the  agent,  and  a  general  committal  to 
his  discretion  and  judgment  of  all  beyond  the  essential  objects  to 
be  attained  and  the  outlines  of  the  course  to  be  pursued.  It  may 
not  unreasonably  be  presumed,  where  nothing  is  indicated  to  the 
contrary,  that  such  an  agent  possesses  those  powers  which  are 
commensurate  with  his  undertaking,  and  which  are  usually  and 
properly  exercised  by  other  similar  agents  under  like  circum- 
stances. This  presumption  may  well  be  and  is  constantly  relied 
upon  by  persons  dealing  with  such  agents,  and  so  reasonable, 
proper  and  necessary  is  this  reliance,  that  it  may  justly  be 
required  that  if  the  principal  would  impose  unusual  restrictions 
upon  the  authority  of  such  an  agent,  he  should  make  them  known 
to  persons  who  may  have  occasion  to  deal  with  the  agent. 

And  herein,  it  is  believed,  lies  the  true  distinction  between 
these  two  classes  of  agents.  One  is  in  its  nature  limited  and 
implies  limitations  of  power.  Of  these  limitations  third  persons 
must  inform  themselves,  unless  the  principal  has  by  his  words  or 
conduct  held  out  the  agent  as  one  upon  whose  authority  such 
limitations  are  not  imposed.  The  other  is,  in  its  nature,  general 
and  unrestricted  by  other  limitations  that  those  which  confine  the 
authority  within  the  bounds  of  what  is  usual,  proper  and  neces- 
sary under  like  circumstances.  If  there  are  other  limitations,  the 
principal  must  disclose  them. 

Neither  of  these  rules  dispenses  with  that  which  devolves  upon 
every  person  the  duty  of  ascertaining  not  only  the  fact  of  the 

188 


Chap.  I.]  NATURE  OF  THE  AUTHORITY.  §  287. 

agency  but  also  the  nature  and  extent  of  the  authority  which  the 
principal  has  apparently  conferred.  And  neither  of  them  per- 
mits that  authority  to  be  defeated  by  secret  limitations. 

§  286.  General  Agency  not  unlimited.  It  is  not,  however,  to 
be  supposed  that  tlie  general  agent's  authority  is  entirely  unlim- 
ited. He  is  far  from  being  a  universal  agent  or  a  mere  autocrat, 
and  while  his  authority  is  not  to  be  constricted  by  undisclosed 
limitations,  it  must,  on  the  other  hand,  be  confined  to  such  trans- 
actions and  concerns  as  are  incident  and  appurtenant  to  the  busi- 
ness of  his  principal  and  to  that  branch  of  the  business  which  is 
entrusted  to  his  care.'  As  has  been  stated,  a  principal  can  have 
but  one  universal  agent,  but  he  may  have  many  general  agents 
neither  of  whom  can  encroach  upon  the  province  of  the  otliers. 

§  287.  General  Agent  binds  Principal  only  within  the  Scope 
of  his  Authority .  The  general  agent,  tlierefore,  binds  his  prin- 
cipal when,  and  only  when,  his  act  is  justified  by  the  authority 
conferred  upon  him.  This  authority  being  in  its  nature  general 
and  not  specific ;  being  often  gathered  from  a  variety  of  sources 
and  composed  of  different  elements,  the  question  of  its  sufficiency 
becomes  largely  one  of  fact,  and  may  be  stated  thus: — Viewing 
all  the  facts  and  circumstances;  taking  into  consideration  the 
oliject  to  be  attained  and  the  means  to  be  adopted ;  giving  due 
weight  to  such  usages  as  were  had  in  contemplation  ;  considering 
whatever  of  extension  or  of  modification  has  been  wrought  by 
subsequent  conduct ;  is  the  act  in  controversy  included  within 
the  limits,  or,  as  it  is  ordinarily  stated,  within  the  scope,  of  this 
authority?  If  it  is,  the  principal  is  bound  ;  if  it  is  not,  the  act 
of  the  agent  binds  himself  alone  or  no  one." 

•Odiorne  v.  Maxcy,  13  Miss.  178;  michael  v.  Buck,  10  Rich.   (S.  C.)  L 

Stewnrt  v.  Woodward,  50  Vt.  78.  28  382.  70  Am   Dec.  226;  Savings  Fund 

Am.  R<^p.  488.  Society  v.  Savings  Bank.  36  Penn.  St. 

2Muun     B.    Commission     Co.,    15  49s.  78  Am.   Dec.  390;  Coweta  Falls 

Joiins.  (N.  Y.)  44,  8  Am    Dec.   219;  Mnfg.  Co    v.  Rogers.  19  Ga,  416,  65 

Rnssiierw   Rossiter,  8  VVcnd.  (N.  Y.)  Am.    Dec.    602;  A?lier  v.  Sutton,    31 

494,  24  Am    Dec.  62;  Jeffrey  v.  Bige-  Kans.    286;     Robinson   v.    Chemical 

low.  13  Wend.  (N    Y.)  518.  28  Am.  Nat.    Bank,    86   N.  Y.    404;  Reed  v. 

Dec.    47('.;    Goodloe    v.    Godley,    13  Ashburnham   R.    R.    120    Mass.    43; 

SmedesA  M.  (xMiss.)233,51  Am.  Dec.  Abraliam.s    v.    Weiiler,    87   111.    179; 

159;  Keener  v.  Harrod,  Z  Ml.  63,  56  Lewis  v.  Sbreveport,   108  U.   8.  282; 

Am.   Dec.  706;  McCoy  v.  McKowen,  Booth  r   Wiley,   102  111.  84;  Nichol- 

26  Miss.  487,  59  Am.  Dec.  261;  Car-  son  v.  Moog,  05  Ala.  471;  American 

lay 


§288. 


TUE   LAW   OF    AGEXOY. 


[Book  II. 


§  288.  Special  Agent's  Authority  must  be  strictly  pursued. 
The  authority  of  the  special  agent  being  in  its  nature  limited,  its 
scope  is  much  more  easy  of  determination  and  must  not  be  ex- 
ceeded ;  or,  as  the  rule  is  ordinarily  stated,  his  authority  must  be 
strictly  pursued,  and  if  it  is  not,  the  principal  will  not  be  bound.' 

It  is  none  the  less  true,  however,  as  has  been  seen,  that  the 
scope  of  the  general  agent's  authority  must  not  be  exceeded. 
Each  acting  within  the  scope  of  the  authority  conferred,  binds 
his  principal ;  each  acting  beyond  that  scope  binds  only  himself. 
But  while  these  rules  applying  to  the  two  classes  are  alike  in 
kind,  they  differ,  as  has  been  shown,  in  degree.  It  is  believed, 
however,  that  the  difference  is  one  of  degree  only,  and  not  of 
principle. 

§  289.  Third  Persons  must  act  in  good  Faith.  It  is  evident 
that  these  rules  are  established  for  the  protection  of  third  persons 
who  act  in  good  faith.  As  has  been  stated,  every  person  dealing 
with  an  agent  is  bound  to  ascertain  the  nature  and  extent  of  his 
authority.*     He   must    not   trust   to    the  mere   presumption  of 


Express  Co.  «.  Milk,  73  111.  234;  Kel- 
ton  V.  Leonard,  54  Vt.  230;  Lewis  e. 
Bourbon,  12  Kans.  186;  Dodge  v.  Mc- 
Donnell, 14  Wis.  553;  Rboda  v.  An- 
nis,  75  Me.  17,  46  Am.  Rep.  354; 
Ward's,  «fcc.  Co.  ®.  Eikins,  34  M;ch. 
439;  New  York  Life  Ins.  Co.  v.  Mc- 
Gowan,  18  Kans.  300;  Morton  v. 
Scull,  23  Ark.  289;  Massachusetts 
Life  Ins.  Co.  v.  Eshelman,  30  Ohio 
St.  647;  Planters'  Ins.  Co.  v.  Sorrells. 

1  Baxter  (Tenn.)  353;  Noble  v.  Cun- 
ningham, 74  111.  51.  This  list  might 
be  very  greatly  extended  but  other 
illustrations  will  appear  in  subsequent 
portions  of  the  work. 

»  Blane  v.  Proudfit,  3  Call  (Va.)  207. 

2  Am.  Dec.  546;  Thompson  v.  Stew- 
art, 3  Conn.  171,  8  Am. Dec.  168;  Beals 
V.  Allen,  18  Johns,  (N.  Y.)  363,  9 
Am.  Dec.  231;  Towle  v.  Leavitt,  23 
N.  H.  360,  55  Am.  Dec.  195;  Baring 
«.  Peirce,  5  Watts  &  Serg.  (Penn.) 
548,  40  Am.  Dec.  534;  Brown  v.  John- 
son, 12  Smedes  &  M.  (Miss.)  39S,  51 
Am.  Dec.  118;  Pursley  «.  Morrison, 


7  Ind.  356,  63  Am.  Dec.  434;  Carmi- 
chael  V.  Buck.  10  Rich.  (S.  C.)  L.  333, 
70  Am.  Dec.  226;  Savings  Fund  So- 
ciety V,  Savings  Bank,  36  Penn.  St. 
498.  78  Am.  Dec.  390;  Thomas  v.  At- 
kinson, 38  Ind.  256;  Blackwell  «. 
Ketcham,  53  Ind.  186;  Baxter  v.  La- 
mont,  60  111.  237;  Adams  «.  Bourne, 
9  Gray  (Mass.)  100;  Silliman  v.  Fred- 
ericksburg, &c.,  R.  R.  Co.  27  Gratt. 
(Va.)  119;  Wooding  v.  Bradley,  76 
Va.  614;  Strawn  v.  O'llara,  86  111. 
53;  Campbell  v.  Sherman,  49  Mich. 
534;  Saginaw,  &c.,  R.  R.  Co.  v.  Chap- 
pell,  56  Mich.  190. 

*  "  Whoever  deals  with  an  agent  is 
put  on  his  guard  by  that  very  fact, 
and  does  so  at  his  ri.sk.  It  is  his 
right  and  duty  to  inquire  into  and 
ascertain  the  nature  and  extent  of  the 
powers  of  the  agent,  and  to  determine 
whether  the  act  or  contract  about  to  be 
consummated  comes  within  the  prov- 
ince of  the  agency  and  will  or  not 
bind  the  principal."  Bermudez,  C. 
J. ,  in  Chaffe  v.  Stubbs,  37  La.  Ann. 


190 


Chap.  L]         NATURE  OF  THE  AUTHOEITT.  §  291. 

authority,  nor  to  any  mere  assumption  of  authority  by  the  agent. 
He  must  at  all  times  be  able  to  trace  the  authority  home  to  its 
source.  Keeping  within  the  scope  of  that  authority  he  is  safe 
and  cannot  be  affected  by  secret  instructions  of  which  he  was 
ignorant. 

But  if  he  had  knowledge  of  the  instructions,  or  notice  suffi- 
cient to  put  him  upon  an  inquiry  by  which  they  might  have  been 
discovered,  he  will  be  held  bound  by  them.' 

§  290.  Persons  dealing  with  Agent  must  exercise  reasonable 
Prudence.  The  person  dealing  with  the  agent  must  also  act 
with  ordinary  prudence  and  reasonable  diligence.  If  the  charac- 
ter assumed  by  the  agent  is  of  such  a  suspicious  or  unreasonable 
nature,  or  if  the  authority  which  he  seeks  to  exercise  is  of  such 
an  unusual  or  improbable  character,  as  would  suffice  to  put  an 
ordinarily  prudent  man  upon  his  guard,  the  party  dealing  with 
him  may  not  shut  his  eyes  to  the  real  state  of  the  case,  but  should 
either  refuse  to  deal  with  the  agent  at  all,  or  should  ascertain 
from  the  principal  the  true  condition  of  affairs." 

This  is  particularly  true  where  the  agent  is  a  stranger  or  one 
with  whom  the  party  has  not  dealt  as  agent.  Care  should  be 
taken  in  such  a  case  not  to  rely  upon  appearances  which  may  be 
as  consistent  with  other  conditions  as  with  the  relation  of  prin- 
cipal and  agent.  Thus  the  mere  fact  that  a  stranger  has  in  his 
possession  and  offers  for  sale  the  property  of  another  as  his  agent, 
is  as  consistent  with  the  fact  that  the  pretended  agent  is  a  mere 
bailee  or  perhaps  a  thief,  as  that  he  actually  has  the  authority 
which  he  assumes  to  possess. 

§  291.  Same  Subject— Must  ascertain  whether  necessary  Con- 
ditions exist.     So  where  the  nature  of   the  authority   is   such 

656.  See  also  Buzard  v.  Jolly,  —  Tex.  him  liable  to  a  third  party,  who,  in 

g  g  -y^^  Uep.  422.  dealing  with  such  agent  fails  to  exer- 

1  Rust  V.  Eaton,  24  Fed.  Rep.  830.  else  the  diligence  usual  with  good 
• "  The  law  is  well  settled,"  says  business  men  under  the  circum- 
Champlin,  J.,  in  Hurley  v.  Watson,  stances.  If  there  is  anything  likely 
—  Mic!i.  — ,  13  West.  Rep.  543,  "  that  to  put  a  reasonable  business  man 
a  person  who  deals  with  an  agent  is  upon  his  guard  as  to  the  authority  of 
bound  to  inquire  into  his  authority,  the  agent,  it  is  the  duty  of  the  third 
and  ignorance  of  the  agent's  authority  party  to  inquire  how  far  the  agent's 
is  no  excuse.  *  *  *  The  principal  acts  are  in  pursuance  of  the  principal's 
may  be  careless  in  reposing  confidence  limitation."  See  also  Dozier  v.  Free- 
in  his  agent,  yet  this  does  not  make  man,  47  Miss.  647. 

191 


§  292.  THE  LAW  OF  AOENOT.  [Book  II. 

that  it  must  have  been  conferred  by  written  instrument,  or  must 
be  a  matter  of  public  record,  the  party  dealing  with  the  agent 
must,  at  Ills  peril,  take  notice  of  this  fact,  and  ascertain  whether 
the  instrumeut  or  record  is  sufficient  for  the  purpose.' 

For  similar  reasons,  if  the  authority  is  known  to  be  open  for 
exercise  only  in  a  certain  event,  or  upon  the  happening  of  a  cer- 
tain contingency,  or  the  performance  of  a  certain  condition,  the 
occurrence  of  the  event  or  the  happening  of  the  contingency  or 
the  performance  of  the  condition,  must  be  ascertained  by  him 
who  would  avail  himself  of  the  results  ensuing  from  the  exercise 
of  the  authority.* 

§  292.  Same  Subject— Authority  of  Public  Agents  must  be 
ascertained.  And  this  rule  is  particularly  true  in  the  case  of 
public  agents.  Here  the  authority  is  a  matter  of  public  record 
or  of  public  law  of  which  every  person  interested  is  bound  to 
take  notice,  and  there  is  no  hardship  in  confining  the  scope  of 
such  an  agent's  authority  within  the  limits  of  the  express  grant 
and  necessary  implication.*  The  fact  that  the  same  act  might 
have  been  within  the  scope  of  the  authority  if  created  by  a  pri- 
vate individual  is  not  conclusive.* 

Thus  in  a  case  involving  the  validity  of  a  contract  made  by  the 
city  commissioner  of  Baltimore,  the  court  said:     "Although  a 
private  agent  acting  in  violation  of  specific  instructions  yet  within 
the  scope  of  a  general  authority,  may  bind  the  principal,  tlie  rule 

'See  ante,  §  373,  post  §  292.  Iowa.  199,  87  Am.  Dec.    42:5:  State  c. 

« Craycraft    «.    Selvage,    10    Bush  Hays,  52  Mo.  578;    D«'laflt'ld  «.  -^tate, 

(Ky.)  696;  VVeise's  Appeal.   72  Penn.  26    Wend     (N     Y.)  192;    Pe-pl-    ». 

St.  351;  Kiikpatiick  v.  Winans,  1  0.  Bank,  24  Wend   (N.  Y.)  481;  While- 

E.  Green  (N.  J.  Ch.)  407.  side  v.  United  S'ates,  93  U.  8.  247. 

'Mayor  of  Baltimore  v.  Eschbach,  <  Mayor  v.  E>clibacb,  supra;  Mayor 

18  Md.  2S2;   Mayor  of  Baltimore  «.  «.  Reynold'^,  supra. 
Reynolds.  20  Md.  1,  83  Am.  Dec.  535;  "  By  the  law  of  agency  at  the  c -m- 

State    V.    Bank,    45   Mo.  528;   Lees.  mon    law,    there    is    this    difffrence 

Munroe.  7  Cranch  (U.  S.)  366;  Curtis  between  individuals  and  the  gov(>rn 

B.  United  Slates,  2  Nott.  &  Hunt  (U.  ment;  the   former  are   iiablr    lo  the 

S.    Ct.    CI.)    144;    Pierce  ».    United  extent  of  the  power  they  have  appar- 

States,  1  Id.  270;  State  u.  Hastings,  10  ently  given  to  their  agents,  while  the 

"Wis.  518;  Hull  v.    Marshall  County,  government  is   liable   only  to  the  ex- 

12  Iowa.  270;  Silliman  v.  Fredericks-  tent  of  power  it  has  actually  given  to 

burg,    &c.    R.  R.  Co.  37  Gratt.  (Va.)  its  officers."     Lorinq,  J.  in  Pieicea, 

119;  The  Floyd  Acceptances,  7  Wall  United  States,  supra. 
(U.  S.)  680;  Clark  t.   DesMoines,  19 

192 


Chap.  I.]  NATURE    OF   THE   AUTHORITY.  §  292, 

as  to  the  effect  of  a  like  act  of  a  public  agent  is  otherwise.  The 
city  commissioner  was  the  public  agent  of  a  municipal  corpora- 
tion, clothed  with  duties  and  powers  specially  defined  and  limited 
by  ordinance  bearing  the  character  and  force  of  public  laws, 
ignorance  of  which  can  be  presumed  in  favor  of  no  one  dealing 
with  him  on  matters  thus  conditionally  within  his  official  dis- 
cretion. For  this  reason  the  law  makes  a  distinction  between  the 
effect  of  the  acts  of  an  officer  of  a  corporation  and  those  of  an 
agent  of  a  principal  in  common  cases.  In  the  latter  the  extent 
of  the  authority  is  known  only  to  the  principal  and  agent,  while 
in  the  former,  it  is  a  matter  of  record  in  the  books  of  the  cor^ 
poration  or  of  public  law."  * 

» Mayor  of  Baltimore  v.  Eschbach,  tupra, 
13  193 


§293. 


THE   LAW    OF   AGENCY. 


[Book  II. 


CHAPTER    II. 


OP   THE   CONSTRUCTION   OF   THE   AUTHORITY. 


§  293.  Purpose  of  this  Chapter. 

I.  When  Authority  is  conferred 
BT  Writino. 

294.  Construction  of    Writing  for 

Court. 

295.  Intention  to  govern. 

296.  How  Intention    discovered — 

Language  Used. 

297.  Entire    Writing— Other  Writ- 

ings. 

298.  Surroundings  of  the  Parties. 

299.  Parol  Evidence  —  Latent  and 

patent  Ambiguities. 

300.  Same    Subject  —  Identifying 

Subject-matter. 

801.  Same    Subject  —  Parol    Evi- 

dence   cannot   enlarge    Au- 
thority. 

802.  Same    Subject  —  Parol    Evi- 

dence    cannot      contradict 
Writing. 
808.  Eilect  must  be  given  to  every 
Word  and  Clause. 

804.  Transaction     to     be    upheld 

rather  than  defeated. 

805.  Authority  to  be  interpreted  in 

Light  of  Lex  Loci. 


§  306.  General  Powers  limited  by 
specific  Object  or  Recital. 

807.  Construed  to  apply  only  to 
Principal's  private  Business. 

308.  Only  those  Powers  expressly 
given  or  necessarily  implied, 

II.  Where  Authority  is  unwrit- 

ten OR  implied. 

809.  Where  Authority  is  unwritten 

but  express. 

810.  Where  Authority  is  unwritten 

but  implied. 

811.  Authority  carries  with  it  every 

Power  necessary  to  accom- 
plish Object. 

812.  Implied  Authority  not  to  be 

extended  beyond    its  legiti- 
mate Scope. 

313.  Implied      Power    limited    to 

Principal's  Business. 

III,  Where  Authority  is   ambio- 

UOU8. 

314.  Duty  of  Principal  to  make  his 

Instructions  clear. 

315.  Where  ambiguous,  Construc- 

tion adopted  in  good  Faith 
sufficient. 


§  293.  Purpose  of  this  Chapter.  An  anthority  having  been 
conferred  and  an  attempt  made  to  exercise  it,  it  becomes  import- 
ant to  determine  whether  the  act  assumed  to  be  done  by  virtue 
of  the  given  power  is,  in  reality,  embraced  within  it.  This 
leads  to  the  necessity  of  construction  or  interpretation  of  the 
authority. 

In  the  main,  the  principles  governing  the  construction  of  a 
power  do  not  differ  from  those  which  prevail  in  regard  to  the 
interpretation   of   contracts  generally.      It  is  proposed  in   thia 

194 


Chap.  II.]  CONSTRUCTION    OF   THE    AUTHOKITY.  §  298. 

chapter,  to  refer  briefly  to  some  of  these  and  also  to  consider  in 
full  some  of  the  more  important  rules  that  apply  to  it.  And  in 
pursuance  of  this  purpose  the  subject  will  for  convenience  sake, 
be  divided  thus:  1.  When  authority  is  conferred  by  written 
instrument.  2.  "When  authority  is  unwritten  or  arises  from 
implication,  and  3.  When  authority  is  ambiguous. 


WHEN  AirrnoRrrT  is  conferred  by  WRrrmo. 

§  294.  Construction  of  Writing  for  Court.  The  construction 
or  interpretation  of  writings  is  for  the  court.  Hence  where  the 
authority  is  created  by  a  written  instrument,  the  writing  must, 
in  general,  be  produced,  and  the  nature  and  extent  of  the  au- 
thority thereby  conferred  must  be  determined  by  the  court.^ 

§  295.  Intention  to  govern.  As  has  been  seen,  agency  is,  in 
general,  the  creature  of  intention.  Courts  sit,  not  to  make  con- 
tracts between  parties,  but  to  construe  and  enforce  the  contracts 
which  the  parties  have  themselves  made.  Hence  the  first  and 
most  important  rule,  in  the  construction  of  writings  creating  an 
authority,  is  to  ascertain  what  authority  the  parties  intended  to 
create.* 

§  296.  How  Intention  discovered— Language  used.  The  in- 
tention of  the  parties  is  primarily  to  be  determined  from  the 
language  used  by  them.  And  as  a  mistake  of  law  does  not  con- 
stitute a  valid  objection,  parties  cannot  be  heard  to  complain  that 
they  did  not  contemplate  the  legal  effect  of  the  language  which 
they  have  deliberately  chosen.* 

§  297.  Entire  Writing— Other  Writings.  In  this,  as  in  other 
cases,  the  intention  is  to  be  gathered  from  the  whole  instru- 
ment, whether  it  be  made  up  of  one  piece  of  paper  or  of  many.* 

§  298.  Surroundings  of  the  Parties.  And  so,  in  doubtful 
cases,  resort  must  be  had  to  the  situation,  surroundings,  and  rela- 

1  Savings  Fund  Society  v.  Savings      Marsh.  (Ky.)  285,  19  Am.   Dec.   93. 
Bank,  36  Penn.  St.  498,  78  Am.  Dec.      See  Bishop  on  Contracts,  §  880. 
j590  •  Bishop  on  Contracts,  §  881 ;  Hunt 

« Marr  «.  Given,  23  Me.  55.  89  Am.  «.  Rousmaniere,  1  Pet.  (U.  S.)  1; 
Dec.  600;  Vanada®.  Hopkins,  1  J.  J.      Holmes  v.  Hall,  8  Mich.  66. 

*  Bishop  on  Contracts,  §  383, 

195 


§  299.  THE   LAW   OF   AGENCY.  [Book  II. 

tions  of  the  parties  ;  for  though  the  writing  cannot,  in  general, 
be  contradicted  by  oral  evidence,  yet  the  circumstances  may  prop- 
erly be  used  as  aids  and,  by  putting  the  court  more  or  less  fully  in- 
to the  exact  situation  of  the  parties,  to  enable  it  to  see  the  subject- 
matter  as  they  saw  it.^ 

8  299.  Parol  Evidence— Latent  and  patont  Ambigxiities.  In 
the  same  manner  an  ambiguity  or  uncertainty  not  arising  upon 
the  face  of  the  instrument,  may  be  explained  by  parol.*  Where, 
however,  the  ambiguity  is  in  the  writing  itself,  resort  cannot  thus 
be  had  to  the  aid  of  parol  explanation.* 

8  300.  Same  Subject— Identifying  Subject-matter,  If  the  sub- 
ject-matter be  not  described  with. sufficient  certainty,  parol  evi- 
dence may  be  allowed  to  complete  the  description  and  identify 
the  thing  intended.* 

8  301.  Same  Subject— Parol  Evidence  cannot  enlarge  Authori- 
ty. In  general,  parol  evidence  is  not  admissible  for  the  purpose 
of  enlarging  or  extending  the  powers  conferred  by  the  written 
instrument,  and  the  nature  and  extent  of  the  authority  must  be 
ascertained  from  the  instrument  itself.*  But,  except  where  writ- 
ing is  indispensable,  the  principal  may,  notwithstanding  this  gen- 
eral rule,  expressly  extend  or  change  the  agent's  powers  by  parol ; 
or  he  may  hold  the  agent  out  as  possessing  greater  powers  than 
those  conferred  by  the  writing  ;  or  he  may  so  conduct  himself  as 
to  be  estopped  from  asserting  that  they  were  not  greater.* 

8  302.  Same  Subject— Parol  Evidence  cannot  contradict  Writ, 
ing.  It  is  also  a  familiar  rule  that,  in  the  absence  of  fraud  or 
mistake  parol  evidence  cannot  be  admitted  for  the  purpose  of 
varying  or  contradicting  the  written  instrument.'  This  rule 
however,  in  its  application  to  the  law  of  agency,  is  substantially 
the  same  as  the  preceding,  and  is  subject  to  the  same  exceptions 

R  303.    Effect  must  be  given  to  every  Word  and  Clause.    Wher- 

1  Bishop  on  Contracts,  §§  372,  878.  Mechanics'  Bank  v.  Schaumburg,  88 

•Bishop  on  Contracts,  §  374.  Mo.  228. 

» Id&m  §  375.  *  Hartford  Ins.   Co.  «.  Wilcox,  67 

«Pope'i».  Machias.  &c.,  Co.,  62  Me.  111.  182;  Williams  e.  Cochran,  7  Rich. 

636;  Norris  «.  SpofEord,  127  Mass.  85;  (8.  C.)  46;  Coleman  t.  National  Bank. 

Bishop  on  Contracts,  §  376.  63  N.  Y.  388. 

s  Ashley  v.  Bird,  1  Mo.  640,  14  Am.  »  Bishop  on  Contracts,  §  169. 
Dec.  813;  State©.  Bank,  45  Mo.  528; 

196 


Chap.  II.]      CONSTRUCTION  OF  THE  AUTHORITY.  §  306. 

ever  it  is  possible,  effect  is  to  be  given  to  every  word  and  clause 
used  by  the  parties.  It  is  to  be  presumed  that  the  parties  used 
the  word  or  clause  with  some  purpose,  and  that  purpose  is,  if 
possible,  to  be  ascertained  and  enforced.' 

§  304.  Transaction  to  he  upheld  rather  than  defeated.  So  the 
intention  of  the  parties  is  to  be  sustained  rather  than  defeated.' 
If  the  writing  be  open  to  two  constructions,  one  of  which  would 
uphold  while  the  other  would  overthrow  the  contract,  the  former 
is,  where  possible,  to  be  chosen.  So  if  by  one  construction 
the  contract  would  be  illegal,  and  by  another  equally  permissible 
construction  it  would  be  lawful,  the  latter  is  always  to  be  chosen, 
as  it  will  not  be  presumed  that  the  parties  intended  to  violate 
the  law.* 

§  305.  Authority  to  be  interpreted  in  Light  of  Lex  Loci.  Every 
authority  given  to  an  agent  to  transact  business  for  his  prin- 
cipal, must,  in  the  absence  of  anything  to  show  a  contrary 
intent,  be  construed  to  empower  him  to  transact  it  according 
to  the  laws  of  the  place  where  it  is  to  be  done,  of  which  laws  the 
principal  is  presumed  to  have  knowledge.* 

S  306.  General  Powers  limited  by  specific  Object  or  Beoital. 
The  meaning  of  general  words  used  in  the  instrument  must  be 
construed  with  reference  to  the  specific  object  to  be  accomplished 
and  limited  by  the  recitals  made  in  reference  to  such  object.* 
Thus  in  a  case  already  referred  to,  the  recital  by  the  princi- 
pal in  the  preamble  of  the  power  of  attorney,  that  he  de- 
signed appointing  an  agent  to  act  for  him  during  his  absence 
from  England,  was  held  to  limit  the  general  words  used  in  the 
appointing  part  of  the  instrument  to  the  period  of  his  absence.* 
So  where  an  agent  was  appointed  to  accomplish  the  adjustment  of 
his  principal's  affairs  in  the  State  of  New  York,  and  the  instru- 
ment concluded  with  a  general  authority  "  to  do  any  and  every  act 

« Bishop  on  Contracts,  §  384.  Attwood  v.  Munnings,  7  B.  «fe  C.  278; 

«Holladay  t».   Daily,  19  Wall.  (U.  Geiger  «.  Bolles,  1  Thomp.  &  C.  (N. 

S.)  606,  1  Myer's  Fed.  Dec,  §  455.  Y.)  129;  Berry  v.  Harnage,  39  Tex. 

"Bishop  on  Contracts,  §§  391,393.  638;   Coquillard  ».   French,  19  Ind. 

«0wing8  0.  Hull,  9  Peters  (U.  S.)  274;  Hodge  v.  Combs,   1  Black,  (U. 

609.  S.)  192. 

•Rountreet),  Denson,  59  Wis.  522;  'Danby  «,   Coutts,   L.  R.  29  Ch. 

Perry  e.  Holl,  2  DeGex,  F.  &  J.  48;  Div.  500. 
Esdaile  v.  La  Nauze,  1  Y,  «fc  C,  394; 

197 


§  307.  THE   LAW    OF   AGENCY.  [Book  II. 

in  his  name  which  he  could  do  in  person,"  it  was  held  that  this 
broad  o-eneral  power  must  be  limited  to  the  doing  of  those  acts 
only  which  were  contemplated  by  the  specific  object  of  the 
appointment. '  And  a  power  of  attorney  granting  authority  to 
the  agent  to  ask,  demand  and  receive  of  a  debtor  all  money  due 
from  him  to  the  principal,  will  be  limited  to  this  specific 
object,  although  it  also  confers  in  general  terms  power  "  to  trans- 
act all  business ; "  the  words  "  all  business  "  must  be  confined  to 
business  necessary  for  the  receipt  of  the  money.* 

§  307.  Construed  to  apply  only  to  Principal's  private  Business. 
A  power  of  attorney  given  to  an  agent  to  act  in  the  name  and  on 
behalf  of  his  principal,  though '  couched  in  general  language, 
must,  in  the  absence  of  anything  showing  a  contrary  intent,  be 
construed  as  giving  authority  to  act  only  in  the  separate,  indi- 
vidual business  of  the  principal  and  for  his  benefit.  It  cannot  be 
construed  as  permitting  the  agent  to  engage  in  transactions 
foreign  or  repugnant  to  that  business,  or  to  bind  the  principal  by 
acts  done  not  for  his  benefit  and  in  his  behalf,  but  for  the  pri- 
vate benefit  of  the  agent  himself  or  of  third  persons.* 

8  308.  Only  those  Powers  expressly  given  or  necessarily  im- 
plied. So  a  formal  instrument  conferring  authority  will  be  strictly 
construed  and  can  be  held  to  include  only  those  powers  which 
are  expressly  given  and  those  which  are  necessary,  essential  and 
proper  to  carry  out  those  expressly  given.*  It  will  be  presumed 
that  the  principal  in  conferring  a  power,  intended  to  confer  with 
it   the   right    to   do    those   things    without    which    the  object 

>  Rossi tero.  Rossiter,  8  Wend.  (N.  Hazeltine  v.  Miller,  44  Me.  177;  Rob- 

Y.)  494.  24  Am.  Dec.  62.  ertson  v.   Levy,   19    La.    Ann.   827; 

» Hay  ».  Goldsmidt,  cited  in  Hogg  Bank    of    Hamburg  t».    Johnson,    8 

V.  Snaith,  1  Taunt.  349.  Rich.  (S.  C.)  L.  42, 

»  Stainback  v.  Read,  11  Gratt.  (Va.)  *  Vanada  e.  Hopkins,  1  J.  J.  Marsh. 

281,  62  Am.   Dec.   648;    Attwood  v.  (Kj.)  285,  19  Am.  Dec.  92;  Wood  ». 

Mannings,   7  Barn.    &    Cress.    278;  Goodridge,    6  Cush.   (Mass.)  117,  53 

North  River  Bank  v.  Aymar,  3  Hill  Am.  Dec.  771 ;  Reese  c.  Medlock,  27 

(N.  Y.)  262;  Wood  v.  McCain,  7  Ala.  Tex.  120,  84  Am.  Dec.  611;  Craighead 

800,  43  Am.  Dec.  612;  Camden  Safe  v.  Peterson,  72  N.   Y.  279,  38  Am. 

Dep.  Co,  «.  Abbott,  44  N.  J.  L.  257;  Rep.  150;  Franklin  «.  Ezell,  1  Sneed, 

Wallaces,  Branch  Bank,  1  Ala.  565;  (Tenn.)    497;    Strong©.    Stewart,   » 

Adams  Express  Co.  ©.  Trego,  35  Md,  Heisk.  (Tenn.)  137;  Farrar  v.  Dun- 

47;  Gulick  V.  Grover,  33  N.  J.  L.  463,  can,  29  La.    Ann.   126;    McAlpin  «. 

97  Am.  Dec.  728;    Sewanee  Mining  Cassidy,   17    Tex.    449;    Mechanics' 

Co.   V.  McCall,  3  Head  (Tenn.)  619;  Bank  c.  Schaumburg,  88  Mo.  228. 

198 


Chap.  II.]  CONSTRUCTION    OF   THE    AUTHORITY.  §  310. 

contemplated  could  not  be  accomplished,  but  beyond  this  the 
authority  will  not  be  extended  by  construction.  The  principle 
is  analogous  to  the  one  which  applies  to  the  powers  of  corpora 
tions,  i.  e.  those  powers  only  which  are  expressly  given  or  which 
arise  from  necessary  implication.  The  rule  has  been  thus  stated 
by  a  learned  judge  : — "  A  formal  instrument  delegating  powers 
is  ordinarily  subjected  to  strict  interpretation,  and  the  authority 
is  not  extended  beyond  that  which  is  given  in  terms,  or 
which  is  necessary  to  carry  into  effect  that  which  is  expressly 
given.  They  are  not  subject  to  that  liberal  interpretation  which 
is  given  to  less  formal  instruments,  as  letters  of  instruction,  etc. 
in  commercial  transactions  which  are  interpreted  most  strongly 
against  the  writer,  especially  when  they  are  susceptible  of  two 
interpretations,  and  the  agent  has  acted  in  good  faith  upon  one 
of  such  interpretations."  * 

IL 

WHBRI!   ATITHORITT   18   UNWRITTEN    OR   IMPLIED. 

§  309.  Where  Authority  is  unwritten  but  express.  Where 
the  authority,  though  not  conferred  by  written  instrument,  is 
express  and  limited,  it  is  subject  to  the  same  general  rules  of 
construction  that  apply  to  a  written  power.  But  when  not  so 
expressly  limited,  a  more  liberal  rule  of  construction  applies 
than  in  those  cases  where  the  authority  is  conferred  by  a  formal 
Instrument  in  writing. 

§  310.  Where  Authority  is  iinwritten  but  implied.  As  has 
been  seen,  a  large  proportion  of  the  agencies  of  the  modern 
business  world  are  not  expressly  conferred,  but  whether  an 
agency  exists  or  not,  and,  if  so,  of  what  nature  and  extent,  are 
questions  to  be  determined  from  the  conduct  and  relations  of  the 
parties.  Some  of  the  rules  which  govern  in  determining  whether 
an  agency  has  been  created  or  not,  have  heretofore  been  referred 
to.  But  it  having  been  found  that  an  agency  has  been  so  created, 
it  then  becomes  as  necessary  to  rightly  interpret  the  authority  so 
conferred,  as  in  those  cases  where  it  is  evidenced  by  a  wi-itten  in- 
strument. And  in  general  the  same  rules  apply.  But  it  is  obvious 
from  the  very  nature  of  the  case  that  greater  liberality  of  con- 

'  Craighead  «.  Peterson,  supra, 
199 


§  311.  THB   LAW   OF   AGENCY.  [Book   11. 

strnction  must  be  indulged  in.  If  the  principal  desires  to  set 
exact  and  definite  limits  to  the  authority  he  may  do  so  by  con- 
ferring it  only  by  express  and  definite  action;  but  where  he 
leaves  it  to  be  inferred  from  his  conduct,  he  cannot  complain  if 
the  rules  of  interpretation  applied  are  more  flexible  and  expan- 
sive than  would  otherwise  have  governed. 

If  from  his  neglect  to  make  the  limits  certain,  it  is  difiicult  to 
determine  exactly  along  what  lines  they  lie,  it  is  but  just  to 
innocent  persons  who  may  be  misled  thereby  to  give  them  the 
benefit  of  the  doubt  and  construe  the  authority  most  strictly 
against  him. 

§  311.  Authority  carries  with  it  every  Power  necessary  to 
accomplish  Object.  Every  delegation  of  authority,  whether  it 
be  general  or  special,  express  or  implied,  unless  its  extent  be 
otherwise  expressly  limited  by  some  instrument  conferring  it, 
.  carries  with  it,  as  an  incident,  the  power  to  do  all  those  things 
which  are  necessary,  proper,  usual  and  reasonable  to  be  done  in 
order  to  effectuate  the  purpose  for  which  it  was  created.  It  em- 
braces all  the  appropriate  means  to  accomplish  the  desired  end. 
This  principle  is  founded  on  the  manifest  intention  of  the  party 
creating  such  authority  and  is  in  furtherance  of  such  intention.^ 

§  312.  Implied  Authority  not  to  be  extended  beyond  its 
legitimate  Scope.  But  while,  as  has  been  seen,  authority  is  often 
to  be  implied  from  the  conduct  of  the  parties,  yet  it  is  a  neces- 
sary and  logical  limitation  upon  the  construction  of  such  an  au- 
thority, that  the  power  implied  shall  not  be  greater  than  that 
fairly  and  legitimately  warranted  by  the  facts.  The  reason  of 
this  rule  is  so  apparent  and  so  just  that  it  needs  no  argument  to 
support  it. 

If  the  agency  arises  by  implication  from  acts  done  by  the 
agent  with  the  tacit  consent  or  acquiescence  of  the  principal,  it  is 
to  be  limited  in  its  scope  to  acts  of  a  like  nature ;  if  it  arises 

>  Benjamin  v.  Benjamin,  15  Conn.  43  Mich.  864;  Farrar  ».  Duncan,  29 

847,   39  Am.   Dec.   384;   Huntley  «.  La.  Ann.  126;  Craigliead  v.  Peterson, 

Mathias.  90  N.  C.  101,  47  Am.  Rep.  72  N.  T.  279,  28  Am.  Rep.  150;  Har- 

516;  LeRoy  «.  Beard,  8  How.  (U.  8.)  dee  v.  Hall,  12  Bush.  (Ky.)  327;  Boyd 

451;  1  Myers' Fed.  Dec.  §  477;  Joyce  «.   Satterwhite,  10  8.   C.   45;  Shack- 

V.    Duples3i9,   15  La.    Ann.   242,   77  man  v.  Little,  87  Ind.  187;   Benning- 

Am.  Dec.  185;   McAplia  v.  Cassidy,  hoff  t>.  Agricultural  Ins.  Co.,  93  N. 

17  Tex.  449;  Star  Line  t».  Van  Vliet,  Y.  495. 

200 


Chap.  IL]  0ON8TEU0TION    OF    THE    AUTHORITY.  §  315. 

from  the  general  habits  of  dealing  between  the  parties  it  must  be 
confined  in  its  operation  to  dealings  of  the  same  kind  ;  if  it  arises 
from  the  previous  employment  of  the  agent  in  a  particular  busi- 
ness, it  is,  in  like  manner,  to  be  limited  to  that  particular  busi- 
ness. In  other  words,  an  implied  agency  is  not  to  be  extended 
by  construction  beyond  the  obvious  purpose  for  which  it  is  ap- 
parently created.* 

§  313.  Implied  Power  limited  to  Principal's  Business.  So, 
too,  where  authority  is  implied,  as  well  as  where  it  is  express,  it 
is  to  be  construed  as  conferring  authority  to  act  only  in  the  sep- 
arate, individual  business  of  the  principal  and  for  his  benefit,  as 
stated  in  a  previous  section.' 

III. 

WHERE   AUTHORrrr   IS    AMBIGUOUS. 

§  314.     Duty  of  Principal  to  make  his  Instructions  glear.     It 

is  the  duty  of  the  principal,  if  he  desires  an  authority  to  be  exe- 
cuted in  a  particular  manner,  to  make  his  terms  so  clear  and  un- 
ambiguous that  they  cannot  reasonably  be  misconstrued.  If  be 
does  so,  it  is  the  agent's  duty  to  the  principal  to  execute  them 
strictly  and  faithfully ;  and  third  persons  who  know  of  them  or 
who  from  the  circumstances  of  the  case  ought  to  have  known  of 
them,  can  claim  no  rights  against  the  principal  based  upon  their 
violation.* 

§  31 5.  When  ambiguous,  Construction  adopted  in  good  Faith, 
suflacient.  But  if,  on  the  other  hand,  the  authority  be  couched 
in  such  uncertain  terms  as  to  be  reasonably  susceptible  of  two 
different  meanings,  and  the  agent  in  good  faith  and  without  neg- 
ligence adopts  one  of  them,  the  principal  cannot  be  heard  to 
assert,  either  as  against  the  agent  or  against  third  persons  who 
have,  in  like  good  faith  and  without  negligence,  relied  upon  the 
same  construction,  that  he  intended  the  authority  to  be  executed 
in  accordance  with  the  other  interpretation.*  If  in  such  a  case, 
the  agent  exercises  his  best  judgment  and  an  honest  discretion, 

» McAlpin  V.  Cassidy,  17  Tex.  449;  •  See  ante,  §§  289,  290. 

Graves  v.  Horton,  —  Minn.  — ,   35  « Ireland  v.  Livingstone,  L.  R.  6  H. 

N.  W.  Rep.  568;  see  ante,  §§  85,  274.  L.  895. 

•Ante.  §  307. 

201 


§315. 


THE   LAW   OF   AQENOT. 


[Book  II. 


he  fulfills  his  duty,  and  though  a  loss  ensues,  it  cannot  be  cast 
upon  the  agent.* 

An  instrument  conferring  authority  is  generally  to  be  con- 
strued by  those  having  occasion  to  act  in  reference  to  it,  "  as  a 
plain  man,  acquainted  with  the  object  in  view,  and  attending  rea- 
sonably to  the  language  used,  has  in  fact  construed  it.  He  is  not 
bound  to  take  the  opinion  of  a  lawyer  concerning  the  meaning 
of  a  word  not  technical  and  apparently  employed  in  a  popular 
sense." " 


•Bessent*.  Harris,  63  N,  C.  542;      DeTastett  t>.  Crousillat,  8  Wash.  (U. 


National  Bank  -o.  Merchants'  Bank, 
91  U.  S.  92,  104;  Shelton  v.  Merch- 
ants Despatch  Transp.  Co.,  59  N.  T. 
258;  LeRoy  «.  Beard,  8  How.  (U.  S.) 
451,  1  Myer'8  Fed.  Dec,  §  478;  Very 
».  Levy,  13  How.  (U.  S.)345, 1  Myer's 
Fed.  Dec,  §  468;  Loraine  «.  Cart- 
wright,  8  Wash.  (U.  S.  0.  0.)  151; 


8.  C.  C.)  132;  Mechanics'  Bank  •. 
•Merchants'  Bank,  6  Mete.  (Mass.)  13; 
Foster  v.  Rockwell,  104  Mass.  167; 
Long  «,  Pool,  68  N.  C.  479;  Marsh  v. 
Whitmore,  21  Wall.  (U.  S.)  178. 

»  Curtis,  J.,  in  Very  t>.  Levy,  supra, 
citing  Withington«.  Herring,  5  Bing. 
466. 


202 


Chap.  III.]  CONSTEUCTION    OF   AUTHOBITIEa. 


CHAPTER    III. 


OF  THE  CONSTRUCTION  OF  AUTHORITIES  OF  CERTAIN  KINDS 


§  316.  Purpose  of  this  Chapter. 
317.  In  general. 

I.    Of  Agbnt  authorized  to  sbll 
Land. 

818.  What  Authority  is  sufficient. 

819.  When  Authority  to  be  exer- 

cised. 

820.  What  Execution   authorized. 
831.  Authority  to  sell  implies  Right 

to  convey. 

822.  To  insert  usual  Covenants  of 

Warranty. 

823.  But  not  to  mortgage. 

824.  Authority  to  receive  Payment. 

825.  Authority  to  give  Credit. 
326.  Authority    to    sell    does    not 

authorize  Exchange  or  Gift. 

827.  Does  not  authorize  Waste,  or 

Sale    of     Timber    separate 
from  the  Land, 

828.  Does  not  authorize  changing 

Boundaries  of  Land. 

829.  Does  not  authorize  Partition, 

830.  Does  not  authorize  Dedication 

to  Public  Use. 

831.  Nor  Conveyance  in  Payment 
of  Agent's  Debts. 

832.  No  implied  Power  to  revoke 

Contract. 

833.  No  implied  Power  to  discharge 

Mortgage. 

834.  No  implied  Power  to  invest 
Proceeds, 

n.    Of  Agent  authorized  to  sell 
Personal  Property. 

885.  When  Authority  exists. 

886.  Authority  to  receive  Payment 

— In  general. 


837,  Authority  to  receive  Payment 

not  implied  from  Possession 
of  Bill. 

838.  Agent  having  Possession    or 

other  Indicia  ot  Ownership 
may  receive  Payment. 
339,  Agent  to  sell  merely  or  to  so- 
licit Orders  without  Posses- 
sion of  Goods  not  author- 
ized to  receive  Payment. 

840.  When     travelling     Salesman 

may  receive  Payment. 

841.  Same    Subject  —  When    Pay- 

ment to  Agent  Part  of  Terms 
of  Sale. 

842.  Same     Subject  —  Notice     of 

Want  of  Authority. 

343.  Same    Subject  —  No    implied 

authority  to  sell  his  Samples. 

344.  Same  Subject — Purchaser  can- 

not set  off  Debt  due    from 
Agent. 

345.  Same    Subject — Implied  Au- 

thority to  hire  Horses. 

346.  Same   Subject  —  Authority  to 

procure   other  Supplies. 

847.  Implied  Authority  to  warrant 

Quality. 

848.  Same  Subject  —  The   general 

Rule. 

849.  Illustrations  of  the  Rule. 

850.  Limits  of  this  Rule. 

851.  Authority  to  warrant  Title. 
352.  No  implied  Power  to  exchange 

or  barter. 

853.  No    implied    Power    to   give 

Credit, 

854,  No  Authority  to   Appropriate 

to  bis  own  Use. 


203 


THE    LAW    OF    AGENCY. 


[Book  II. 


§  855.  No  implied  Authority  to  re- 
lease Principal's  Rights  or  to 
pay  Principal's  Debts. 

856.  No  Authority  to  pledge  Goods. 

857.  No  Authority  to  promise  Com- 

missions for  Subsales. 

858.  No  Authority  to  sell  at  Auc- 

tion. 

859.  Authority — When  to  be  exer- 

cised. 

860.  No  Authority  to  rescind  the 

Sale. 

861.  No  Authority  to  mortgage. 

862.  Authority   to   fix    Price  and 

Terms  of  Sale. 

III.  Op    Agent    authorized    to 

Purchase. 

868.  May  not  buy  on  Credit  when 
furnished  with  Funds. 

864.  May  buy  on  Credit  when  not 

supplied  with  Funds. 

865.  Has  Power  to  agree  upon  Price 

and  Terms  of  Purchase. 
386.  May  not  exceed  Limits  as  to 

Quantity. 
867.  Must    observe    Limits    as    to 

Quality  or  Species. 

368.  May  be  restricted  as  to  Per- 

sons with  whom  to  deal. 

369.  May  make  Representations  as 

to  Principal's  Credit 

370.  May  not    execute    negotiable 

Paper. 

IV.  Of  Agent  authorized  to  re- 

ceive Payment. 

371.  What    constitutes    such    Au- 

thority. 

372.  When  implied  from  negotiat- 

ing the  Contract. 

873.  When  implied  from  Possession 

of  the  Securities. 

874.  When    implied    from  having 

sold  the  Goods. 

875.  Can  receive  nothing  but  Mon- 

ey. 

876.  No  Authority  to    release    or 

compromise  the  Debt. 
377.  May  receive  Part  Payment. 


§  378.  But  may  not  extend  Time. 

879.  Authority  to  collect   Interest 

does  not  authorize  Collec- 
tion of  Principal. 

880.  Not  authorized  to  receive  be- 

fore due. 

881.  No  Authority  to  take  Checks. 

882.  If  authorized  to  take   Check 

or  Note,  has  no  Authority  to 
indorse  or  collect  it. 

383.  Authority  to  collect  does  not 
authorize  Sale. 

884.  No  Authority  to  deal  with 
Funds  collected. 

•385.  May  give  Receipt  or  Dis- 
cbarge. 

386.  Implies  Authority  to  sue — 
when. 

887.  May  sue  in  his  own  Name — 

when. 

888.  May  employ  Counsel. 

V.      Of    Agent    authorized    to 
Make  and  Indorse  Negotia- 
ble Paper. 

889.  What  constitutes  such  Author- 

ity. 

890.  Same     Subject  —  Authority 

strictly  construed. 
391.  When  Authority  implied. 

393.  Must  be  confined  to  Princi- 

pal's Business. 
893.  Execution  to  be  confined  to 
Limits  specified. 

394.  Negotiable  Paper  or  Deeds  de- 

livered to  Agent  in  Blank. 

VL     Of   Agent   authorized     to 
Manage  Business. 

895.  Extent  of  Authority  depends 

on  Nature  of  Business. 

896.  When  Power  implied  to  pledge 

Principal's  Credit. 
397.  Implied  Power  to  sell  Product 

of  Business. 
898.  None   to  bind  by  Negotiable 

Instrument. 

399.  When  may  borrow  Money. 

400.  May  not  make  Accommoda- 

tion Paper. 


204: 


Chap.  III.]  ooNSTBuonoN  of  authorities. 


§318. 


§  401.  May  not  pledge  or  mortgage 
the  Property  of  the  Principal. 

402.  May  not  sell  Principal's  Land. 

403.  May  not  embark  in  new  and 

different  Business. 

404.  May  not  sell  the  Business. 


VIL     Op   Agext   axtthorized   to 

Sbttlk. 
§  405.  May  not  submit  to  Arbitra- 
tion. 
406.  May  not  assign  Demand. 


§  316.  Purpose  of  this  Chapter.  Having  in  the  preceding 
chapters  considered  the  question  of  what  constitutes  authority,  aa 
well  as  some  of  the  rules  which  govern  its  construction  and  in- 
terpretation, it  is  now  proposed  to  see  how  these  principles  are 
applied. 

§  317.  In  general.  In  considering  the  questions  discussed  in 
this  chapter,  the  rules  already  referred  to  must  be  kept  in  mind. 
Prominent  among  these,  as  has  been  seen,  are,  that  express  and 
formal  grants  of  power  are  strictly  construed  ;'  that  every  grant 
of  power  is  to  be  interpreted,  in  the  absence  of  anything  to  show 
a  contrary  intent,  as  conferring  authority  to  act  only  in  the  pri- 
vate, individual  business  of  the  principal,  and  for  his  benefit  ;* 
that  grants  of  power,  though  couched  in  general  language,  are  to 
be  limited  to  the  particular  object  contemplated  by  the  power  ;■ 
that  every  power  carries  with  it,  as  an  incident,  where  no  limita- 
tions appear,  the  implied  authority  to  do  those  things  which  are 
necessary  and  proper  to  be  done  in  order  to  accomplish  the  ob- 
ject sought  and  which  are  usually  done  in  the  execution  of  a 
like  authority;*  and  that  a  well-defined  and  publicly  known 
usage  may  confer  incidental  powers  unless  the  parties  have 
excluded  it.* 


OF   AGENT   ATJTHOKIZED   TO   SELL   LAND. 

§  318.  What  Authority  is  sufacient.  A  power  of  attorney 
"  to  act  in  all  my  business,  in  all  concerns,  as  if  I  were  present, 
and  to  stand  good  in  law,  in  all  my  land  and  other  business," 
gives  no  power  to  sell  land  ;  •  nor  does  a  power  "  to  ask,  demand, 
recover  or  receive  the  maker's  lawful  share  of  a  decedent's  estate, 


^  See  ante,  %  80a 
•  See  ante,  %  807. 
»  See  ante,  §  306. 
*BeQante,  §311. 


•  See  ante,  §  281. 

•  Ashley  v.  Bird,  1  Mo.  640,  14  Am. 
Dec.  313. 


205 


§  318. 


THE   LA.W   OF   AGENCY. 


[Book  11. 


giving  and  granting  to  his  Baid  attorney  his  sole  and  full  power 
and  authority  to  take,  pursue  and  follow  such  legal  course  for  the 
recovery,  receiving  and  obtaining  the  same  as  he  himself  might  or 
could  do  were  he  personally  present;  and  upon  the  receipt  thereof, 
acquittances  and  other  sufficient  discharges  for  him  and  in  his  name 
to  sign,  seal  and  deliver  ; "  '  nor  does  a  power  "  to  make  contracts, 
to  settle  outstanding  debts  and  generally  to  do  all  things  that  con- 
cern my  interest  in  any  way  real  or  personal,  whatsoever,  giving 
my  said  attorney  full  power  to  use  my  name  to  release  others  or 
bind  myself,  as  he  may  deem  proper  and  expedient ; "  *  nor 
does  a  power  "  to  attend  to  the  business  of  the  principal  gene- 
rally," or  "  to  act  for  him  with  reference  to  all  his  business  ;  "  ' 
nor  does  authority  to  locate  and  survey  land  ;  *  nor  does  a  power 
to  sell  "  claims  "  and  "  effects."  • 


>  Hay  «.  Mayer,  8  Watts  (Penn.) 
203,  84  Am.  Dec.  453. 

«  Billings  V.  Morrow,  7  Cal.  171,  68 
Am.  Dec.  235.  Same  power  also 
construed  to  the  same  effect  in  Hun- 
ter «.  Sacramento  Valley  Beet  Su/i;ar 
Co.  14  Cent.  L.  Jour.  352,11  Fed.  Rep. 
17. 

»  Coquillard  e.  French,  19  Ind.  274. 
Nor  does  a  power  of  attorney  ap- 
pointing one  "general  and  special 
agent  to  do  and  transact  all  manner 
of  business  "  necessarily  confer  power 
upon  the  agent  to  sell  bonds  belong- 
ing to  his  principal.  Hodge  v. 
Combs,  1  Black  (U.  S.)  193;  1  Myers 
Fed.  Dec.  §  484.  Such  a  power, 
said  the  court,  "  may  be  construed  to 
confer  almost  any  or  no  power." 

*  Moore  v.  Lockett,  3  Bibb  (Ky.) 
67,  4  Am.  Dec.  683. 

»  DeCordova  v.  Knowles,  37  Tex. 
19.  See  also  Berry  v.  Harnage,  89 
Tex.  638,  where  a  power  of  attorney 
in  the  following  terms  was  held  suffi- 
cient to  authorize  a  sale  of  real  estate: 
"  to  ask,  demand,  sue  for,  recover 
and  receive  all  such  sum  and  sums  of 
money,  debts,  goods,  wares,  dues, 
accounts  and  other  demands  what- 
€ver,    which   are    or    may    be   due. 


owing,  payable  and  belonging  to  me 
or  detained  from  me  by  any  manner 
of  ways  and  means  whatever,  in 
whose  hands  soever  the  same  may  be 
found ;  giving  and  granting  unto  my 
Baid  attorney,  by  these  presents,  my 
whole  and  full  power,  strength  and 
authority,  in  and  about  the  premises, 
to  have,  use,  and  take  all  lawful 
ways  and  means,  in  my  name  and  for 
the  purposes  aforesaid,  upon  the 
receipt  of  any  such  debts,  dues  or 
issues  of  money,  acquittances  or 
other  sufficient  discharge,  for  me, 
and  in  my  name,  to  make,  seal, 
execute,  deeds  of  convej'^ance,  and  de- 
livered and  generally  all  and  every 
act  or  acts,  thing  or  things,  device 
or  devices,  in  the  law  whatso- 
ever needful  and  necessary  to  be 
done  in  and  about  the  premises,  for 
me  and  in  my  name  to  do,  execute 
and  perform."  See  also  Stewart  v. 
Pickering,  —  Iowa,  — ,  35  N.  W. 
Eep.  690.  In  this  case  the  defend- 
ants, real  estate  brokers,  wrote  to  the 
plaintiff's  attorney  in  fact:  "  Do  you 
have  charge  of  the  lands  *  •  ♦ 
belonging  to  the  estate  of  ST  If  so, 
are  they  for  sale?  *  *  *  If  the 
title  is  all  right,  we  can  possibly  find 


206 


Chap.  III.]  0ON8TBU0TI0N   OF    AUTHOEITIES.  §  318. 

So  authoritjr  to  sell  real  estate  in  "  lots  as  surveyed  by  "  a  per- 
son named,  does  not  empower  the  agent  to  sell  the  whole  tract 
for  a  gross  sum  or  at  so  much  per  acre.* 

But  where  A  wrote  to  0  "  I  wish  you  to  manage  (my  prop- 
erty) as  you  would  with  your  own.  If  a  good  opportunity  offers 
to  sell  everything  I  have,  I  would  be  glad  to  sell.  It  may  be 
parties  will  come  into  San  Antonio,  who  will  be  glad  to  purchase 
my  gas  stock  and  real  estate,"  it  was  held  that  C  was  thereby  au- 
thorized to  contract  for  the  sale  of  the  real  estate,  but  not  to  con- 
vey it. ' 

A  power  of  attorney  authorizing  the  agent  "  to  bargain,  sell, 
grant,  release  and  convey,  and  upon  such  sales,  convenient  and 
proper  deeds  with  such  covenants  as  to  my  said  attorney  shall 
seem  expedient,  in  due  form  of  law,  as  deed  or  deeds,  to  make, 
seal,  deliver  and  acknowledge,"  although  it  is  silent  as  to  what 
the  agent  is  to  sell  and  convey,  is  sufficiently  broad  to  authorize 
the  agent  to  sell  and  convey  whatever  estate  the  principal  then 
had.' 

So  a  power  of  attorney  in  due  form,  authorizing  the  agent 
"  to  sell,  bargain  and  convey  three  certain  lots  of  land  in  the  vil- 
lage of  Pentwater  belonging  to  me,"  but  containing  no  other  or 
further  description,  is  sufficient  where  the  principal  had  three 

a  customer  for  the  list  this  year.  Let  the  defendant  saying;  "We  have  a 
U8  hear  from  you  as  to  prices  customer  (meaning  the  plaintiff)  who 
&c."  The  answer  was:  "I  here-  would  buy  your  lot  if  offered  at  a 
with  inclose  you  a  price-list  of  our  fair  price,"  and  aslied  him  to  state 
lands.  ♦  •  *  My  mother  is  tho  best  price  and  the  terms,  for  which 
widow  of  S,  and  is  the  sole  devisee.  he  would  sell,  and  pay  their  commis- 
*  *  •  I  am  executor  of  my  sion,  which  was  stated.  The  de- 
father,  and  attorney  in  fact  of  my  fendant  answered  by  letter  stating 
mother,  The  titles  are  all  strictly  price,  and,  in  part  only,  the  terms, 
clear  and  good."  Attached  to  this  for  which  he  would  sell,  and  that  he 
letter  was:  "  Western  land  for  sale,  would  pay  their  commission.  It  was 
Winnebago  county,  Iowa,"  and  a  list  held  that  the  brokers  were  not  tliere- 
of  land,  terms,  and  prices,  and,  "Ap-  by  constituted  the  defendant's  agents, 
ply  to  D.  S.  *  *  *"  It  was  held  with  a  power  to  bind  him  by  a  con- 
that  this  correspondence,  on  its  face,  tract  of  sale. 

did  not  contain  authority  to  sell  the  *  Rice  v.  Tavernier,  8  Minn.  248,  83 

lands,  binding  on  plaintiff,  if  the  sale  Am.  Dec.  778. 

was  made  on  the  terms  given.  *  Lyon  v.  Pollock,  99  U.  S.  668. 

See  also  Stillman  v.  Fitzgerald,   —  » Marr  v.  Given,  23  Me.   55,  39  Am. 

Minn.  —  33  N.  W.  Rep.  564,  where  a  Dec.  600. 
flrra  of  real  estate  brokers  wrote  to 

207 


g  319.  THE    LAW   OF   AGENCY.  [Book    II. 

such  lots  and  only  three  in  that  village  ; '  but  an  authority  "  to 
convey  a  piece  of  land  in  Colebrook  belonging  to  the  Bank," 
there  being  more  than  one  such  piece  is  too  indefinite.* 

8  319.  When  Authority  to  be  exercised.  An  authority  to 
sell  lands  at  a  given  sum,  if  they  can  be  sold  "immediately,"  will 
not  authorize  a  sale  at  that  price  a  month  afterwards,  without  any 
further  authority ; '  nor  can  an  agent  empowered  to  sell  real  es- 
tate at  a  given  price,  without  further  instructions,  sell  it  three 
years  later  at  the  same  price  when  the  land  has  greatly  increased 
in  value.*  An  authority  to  an  agent  to  sell  real  estate  within  "  a 
short  time"  will  authorize  a  sale  made  within  two  weeks,  even 
though  in  the  meantime  the  property  has  enhanced  in  value.* 

8  320.  What  Execution  authorized.  An  agent  authorized  to 
make  the  purchase  price  payable  "in  three  years,"  has  no  implied 
authority  to  make  it  payable  "  on  or  before  three  years,"  •  but 
where  he  is  authorized  to  make  "  one-half  payable  on  or  before 
one  year  "  a  contract  to  sell  for  "  one-half  payable  in  one  year  " 
is  within  the  terms  of  the  authorization.' 

A  power  of  attorney  authorizing  an  agent  to  sell  "  the  one- 
half "  of  a  lot  of  land,  without  specifying  which  half,  or  whether 
in  common  or  in  severalty,  empowers  him  to  sell  one-half  in  sever- 
alty and  tc  exercise  his  own  discretion  as  to  which  half." 

Where  an  agent  is  authorized  to  sell  all  the  land  of  his  princi- 
pal which  the  latter  had  not  previously  conveyed,  he  may  con- 
vey what  the  principal  had  previously  sold  but  not  conveyed  ;  • 
and  under  an  authority  to  sell  any  of  his  principal's  real  estate 
he  may  sell  that  which  the  principal  subsequently  acquires.'* 
8  321.      Authority  to  sell  implies  Right  to  convey.      Unless 

1  Vaughn  V.  Sheridan,  50  Mich.  155.  •  Alemany  v.  Daly,  36  Cal.  90 

•  Lumbard  v.  Aldrich,  8  N.  H.  81,  •  Mitchell  v.  Maupin,  3  T.  B.  Mba. 
28  Am.  Dec.  381.                                       (Ky.)  185. 

» Matthews  «.  Sowle,  13  Neb.  898.  «« Fay   «.    Winchester,    4     Mete. 

«Proudfoot  t.   Wightman,   78  HI.  (Mass.)  513.     See  also  Benschoter  ®. 

13  Lalk,  —  Neb.  — ,  88  N.  W.  Rep.  746. 

•  Smith  t>.  Falrchild.  7  Colo.  610.  In  Greve  v.  Coffin,  14  Minn.  345,  100 

•  Jackson  t>.  Badger,  35  Minn.  53,  Am.  Dec.  329,  a  power  of  attorney  to 
26  N.  W.  Rep.  908;  to  the  same  effect  sell  land  was  construed  as  authoriz- 
sce,  Dana  «.  Turlay,  —  Minn,  — ,  35  ing  a  sale  of  that  only  which  was  ac- 
N  W.  Rep.  860.  quired  subsequently  to  the  date  of 

T  Deakin  v.  Underwood,  87  Minn.       the  power. 
98.  5  Am.  St.  Rep.  837. 

208 


553 


Chap.  III.]  CONSTRUCTION   OF    AUTHORITIES.  §  323. 

there  be  something  in  the  instrument  by  which  its  scope  is  lim- 
ited, as  to  the  mere  finding  of  a  purchaser  or  the  negotiation  of 
the  sale,  a  general  power  to  sell  real  estate  carries  with  it  the 
power  to  execute  all  the  instruments  necessary  to  complete  the 
sale  and  carry  it  into  effect.*  Said  Chief  Justice  Shaw,  "  where 
the  term  '  sale'  is  used  in  its  ordinary  sense,  and  the  general  tenor 
and  effect  of  the  instrument  is  to  confer  on  the  attorney  a  power 
to  dispose  of  real  estate,  the  authority  to  execute  the  proper  in- 
struments required  by  law  to  carry  such  sale  into  effect  is  neces- 
sarily incident."  " 

§  322.  To  insert  usual  Covenants  of  Warranty.  Althouo-h 
the  decisions  are  not  entirely  harmonious,  the  better  rule  seems  to 
be  that  a  general  power  to  sell  land  carries  with  it  authority  to 
insert  in  the  conveyance  the  usual  covenants  of  general  war- 
ranty,' but  not  to  make  any  unusual  or  special  warranty,  as  of 
the  quantity  or  quality  of  the  land  sold.*  A  fortiori  may  the 
agent  warrant  where  he  is  expressly  authorized  to  sell  on  such 
terms  as  he  shall  deem  most  eligible.' 

§  323.  But  not  to  mortgage.  A  power  to  sell,  however,  con- 
veys no  implied  authority  to  mortgage.'  Said  Judge  Cooley, 
"  The  principal  determines  for  himself  what  authority  he  will 
confer  upon  his  agent,  and  there  can  be  no  implication  from  his 
authorizing  a  sale  of  his  lands  that  he  intends  that  his  agent  may 
at  discretion  charge  him  with  the  responsibilities  and  duties  of  a 
mortgagor."  ' 

» Valentine    «.     Piper,     22    Pick,  town,   43  N.    H.    125;    Farnham  «. 

(Mass.)  85,  33  Am.  Dec.  715;  People®.  Thomrmon,   34  Minn.  830.     See  also 

Boring,  8  Cal.   406 ;  Fogarty «.  Saw-  Bronson  «,    Coffin,    118  Mass.   166| 

yer.  17  Cal.  589;  Hemstreet  «.  Bur-  Tazel  f>.  Palmer,  88  111.  697. 

dick,  90  111.  444;   Yale  v.  Eames,  1  *  National  Iron  Armor  Co.  «.  Bru- 

Mete.  (Mass.)  486;  Marr  c.  Given,  23  ner,  19  N.  J.  Eq.  331. 

Me.  55,  89  Am.  Dec.  600;  Macgruder  •  LeRoy  «.  Beard,  supra. 

t.  Peter,  4  Gill  «S!  J.  (Md.)323;  Alex-  'Jeffrey  «.   Hursh,   49  Mich.    81; 

anderc.  Walter,  8  Gill  (Md.)  239,  50  Wood  ».  Goodridge,  6  Cash.  (Mass.) 

Am.  Dec.  688;  Farnham  v.   Thomp-  117;  52  Am.  Dec.    771;   Albany  Fire 

gon,  34  Minn.  330,  26  N.  W.  Rep.  9.  Ins.  Co.  «.  Bay,  4  N.  Y.  9;  Ferry  v. 

«  In  Valentine  t).  V\\i&x,  mpra.  Laible,  31  N.    J.  Eq.  566;  Kinney  ». 

•Vanada    v.     Hopkins,    1     J.     J.  Mathews,  69  Mo.  520;  Patapsco,  &c. 

Marsh,  (Ky  )  285,  19  Am.    Dec.  92;  Co.  v.  Morrison,  2  Woods  (U.  S.  C.  C.) 

Peters  v.  Farnsworth,  15  Vt.  155,  40  895;  Devaynes  v.  Robinson,  24  Beav, 

Am.  Dec.  671;  Le  Roy    v.   Beard,  8  86;  Morris  c.  Watson,  15  Minn.  212. 

How.  (U.S.)  451 ;  Backman  v.  Charles-  '  In  Jeffrey  v.  Hursh,  mpra. 

14  209 


§  324.  THE    LAW   OF   AGENOT.  [Book  II. 

§324.  Authority  to  receive  Payment.  The  receipt  of  so  much 
of  the  purchase  money  as  is  to  be  paid  down,  is  within  the  gen- 
eral scope  of  an  authority  to  sell  and  convey, '  but  is  not  within 
the  power  of  an  agent  authorized  merely  to  contract  for  the  sale.* 
Such  an  authority  will  not,  however,  warrant  the  receipt  of  sub- 
sequent payments.* 

§  325.  Authority  to  give  Credit.  The  power  to  sell  land  does 
not  of  itself  imply  an  authority  to  sell  on  credit.  The  presump- 
tion is  that  the  sale  is  to  be  for  cash.*  But  where  the  agent  is 
authorized  to  sell  "  on  such  terms  as  to  him  shall  seem  meet "  he 
may  grant  a  reasonable  credit.*  An  authority  to  sell  on  credit, 
but  not  fixing  the  time  to  be  given,  implies  a  power  to  grant  a 
reasonable  time.* 

§  326.  Authority  to  sell  does  not  authorize  Exchange  or 
Gift.  Neither  will  a  power  to  sell  and  convey  land,  imply  an 
authority  to  barter  or  exchange  it  for  other  property  or  to  give  it 
away,  or  to  take  the  pay  in  merchandise.  It  is  presumed,  in  the 
absence  of  anything  showing  a  contrary  intent,  that  the  land  is  to 
be  sold  only,  and  sold  for  cash.'  So  where  the  agent  is  authorized 
to  sell  only  for  a  certain  sum,  he  cannot  sell  for  a  less  sum.* 

§  327.  Does  not  authorize  Waste  or  Sale  of  Timber  separate 
from  Land.  An  agent  or  attorney  who  has  power  only  to  bar- 
gain and  sell  land  subject  to  confirmation,  has  no  authority  to 
license  anyone  to  enter  thereon  and  commit  waste  or  cut  timber, 
nor  has  he  power  to  sell  the  timber  distinct  from  the  land.* 

>  Peck  V.   Harriott,   6  Serg  &  R.  t  Reese  v.  Medlock,  27  Tex.  120,  84 

(Penn.)  146,  9  Am.  Dec.  415;   Carson  Am.  Dec.  611;  Trudo«.  Anderson,  10 

V.  Smith,  5  Minn.   78.   77  Am.  Dec.  Mich.  357,  81  Am.  Dec.  795;  Mann  v. 

539;  Mann  v.    Robinson,  19  W.  Va.  Robinson,  19  W.  Va.  49,  42  Am.  Rep. 

49,42  Am.    Rep.    771;   Alexander «.  771;  Lumpkin  «.   Wilson,  5  Heisk. 

Jones,     64    Iowa,    207;    Yerbey    «.  (Tenn.)  555;  Rhine ».  Blake,  59   Tex. 

Grigsby,  9  Leigh  (Va.)  387;  Johnson  v.  240;  Morrill  v.  Cone,  22  How.  (U.  S.) 

McGruder,   15  Mo.   365;  Goodale  «.  75,  1  Myers' Fed.  Dec.  §  467;  Hamp- 

"VVheeler,  11  N.  H.  424.  ton  e.    Moorhead,   62  Iowa,  91;  Du- 

2  Mann  v.  Robinson,  supra.  pont  v.  Wertheman,  10  Cal.  854;  Mott 

»  Johnson  v.  Craig,  21  Ark.  533.  f».  Smith,  16  Cal.  533. 

4  Lumpkin    e.   Wilson,   5    Heisk.  »  Holbrook  v.   McCarthy,   61   CaL 

(Tenn.)555.  216;  Bush  ».  Cole,  28  N.   T.   261,84 

»  Carson  v.   Smith,  6  Minn.  78,  77  Am.  Dec.  843. 

Am.  Dec.  539.  *  Hubbard  v.  Elmer,   7   Wend.  (N. 

•  Brown  t>.   Central  Land  Co.   43  Y.)  446,  22  Am.  Dec.  690. 
Cal.  257. 

210 


Chap.  III.]  0ON8TRU0TION   OF    AUTHORITIES.  §  333. 

§  328.  Does  not  authorize  changing  Boundaries  of  Land. 
Nor  has  an  agent  authorized  to  sell  or  rent  real  estate  any  im- 
plied power  to  agree  with  an  adjoining  land  owner  upon  a  change 
of  the  boundaries  of  the  principal's  land.^ 

§  329.  Does  not  authorize  Partition.  Authority  to  sell  and 
convey  land  does  not  authorize  a  partition  of  the  land  in  which 
the  principal  has  an  interest  as  tenant  in  common.* 

§  330.  Does  not  authorize  Dedication  to  Public  Use.  Mere 
authority  to  sell  and  convey  land  does  not  imply  power  to  dedi- 
cate any  part  of  it  to  the  public  use ; '  but  a  power  "  to  sell,  con- 
vey, plat  and  subdivide  in  such  manner  as  to  make  the  property 
marketable  and  to  acknowledge  and  record  such  plat"  implies  a 
power  to  dedicate  such  portion  as  may  be  necessary  to  the  public 
use.*  So  a  power  to  lay  out  land  in  order  to  dispose  of  it,  im- 
plies authority  to  dedicate  the  necessary  highways,'  and  authority 
to  purchase  a  town  site  and  lay  it  out,  implies  power  to  dedicate 
proper  and  appropriate  streets.* 

§  331.  Nor  Conveyance  in  Payment  of  Agent*s  Debts.  An 
agent  authorized  to  sell  and  convey  real  estate  can  do  so  only  for 
and  in  behalf  of  his  principal.  He  may  not  convey  it  in  trust 
for  the  payment  of  his  own  debts.' 

§  332.  No  implied  Power  to  revoke  Contract.  An  agent  au- 
thorized to  make  a  contract  for  the  sale  of  land  exhausts  his  power 
with  the  completion  of  that  contract ;  and  has  thereafter  no  im- 
plied power  to  revoke  or  rescind  it,  or  to  release  the  purchaser 
from  its  obligations.* 

§  333.  No  implied  Power  to  discharge  Mortgage.  An  agent 
authorized  merely  to  sell  land  has  therefrom  no  implied  power  to 
release  or  discharge  mortgages  belonging  to  his  principal;*  but 
an  agent  having  general  authority  to  deal  in  land,  may  bind  his 
principal  by  the  assumption  of  a  mortgage  as  part  of  the  pur- 
chase  price." 

*  Fore  t>.   Campbell,  — .  Va.  — ,  1         •  Barteau  v.  "West,  23  Wis.  416. 
South  East.  Rep.  180.  i  Frink  v.  Roe,  70  Gal.  296.  11  Pac. 

s  Borel  v,  Rollins,  30  Cal.  408;  Wirt  Rep.  820. 
V.  McEneiy,  21  Fed.  Rep.  233.  «  Luke  v.  Grigg,  —  (Dak.)—,  30  N. 

»  Wirt  V.  McEnery,   21  Fed.   Rep.  W.  Rep.  170. 
233;  Gosselin  v.  Chicago,  103  III  623.  •  Barger  «.   Miller,  4  Wash.  (U.  S. 

«  Wirt  V.  McEnery,  supra.  C.  C.)  284. 

•  State  «.  Atherton,  16  N.  H.  203.  «•  Schley  e.  Fryer,  100  N..Y.  71. 

211 


§  334.  THE   LAW   OF    AGENCY.  [Book  II. 

§  334.  No  implied  Power  to  invest  Proceeds.  A  power  of 
attorney  authorizing  the  agent  to  take  possession  of  and  sell  all 
the  property  of  his  principal,  and  collect  his  debts,  does  not  au- 
thorize the  agent  to  re-invest  the  funds  of  his  principal  or  to  en- 
gage therewith  in  any  echeraes  of  speculation,  however  tempt- 
ing.* 

IL 

OF  AGENT  AUTHORIZED  TO  SELL  PERSONAL  PROPERTY. 

§  335.  When  Authority  exists.  Authority  to  an  agent  to 
sell  personal  property  may,  of  course,  be  expressly  conferred,  but  it 
may  also  be  implied  from  circumstances.  Such  authority,  how- 
ever, cannot  be  inferred  from  mere  possession  of  the  property, 
even  though  the  alleged  agent  be  a  dealer  in  property  of  that 
kind,'  but  the  principal  must  have  done  something  more  ;  he  must 
have  so  acted  as  to  clothe  the  agent  with  apparent  authority  to 
sell,  or  must  have  conferred  upon  him,  or  permitted  him  to  assume, 
all  of  the  apparent  indicia  of  ownership.* 

§  336.  Authority  to  receive  Payment— In  general.  Whether 
an  agent  authorized  to  sell  personal  property  has  implied  author- 
ity to  receive  payment,  is  a  question  upon  which  there  has  been 
much  difference  of  opinion.  It  will  be  obvious  that  its  solution 
must  depend  largely  upon  the  nature  of  the  particular  transaction 
and  the  usages  if  any  in  relation  thereto. 

If  a  merchant  places  behind  his  counters  a  clerk  to  sell  goods, 
it  could  not  be  doubted  that,  in  the  absence  of  a  known  custom 
to  pay  a  cashier  or  other  person,  the  clerk  would  have  implied 
power  to  receive,  at  the  time  of  the  sale,  payment  for  the  goods 
sold  by  him.*    Whether  he  would  have  authority  at  some  sub 

•  Stoddard  e.  United  States,  4  Ct.  customers  or  purcha3ers,  and  it  is  im- 
CI,  516.  plied  from  such  employment  that  hft 

*  Levi  t>.  Booth,  88  Md.  305,  43  has  authority  to  receive  pay  for  them 
Am.  Rep.  332.  on  such  sale.    But  there  is  no  impli- 

»  Smith  t.  Clews,  105  N.  T.  283,  59  cation  from    such   employment  that 

Am.  Rep.  502;    and    see    generally,  he  has  authority,  after  the  goods  are 

post,  §  §  785-788.  delivered  and  taken  from  the  store, 

«  See  Hirshfleld  e,     "Waldron,     54  to  present  bills   and   collect    money 

Mich.  649,  where  Champlin  J.  says:  due  to  his  employers,    because  it  is 

"  The  usual  employment  of  a  clerk  not  in  the   scope  of  the  usual  em- 

in  a  retail  store  is  to  sell  goods  to  ployment  of  such  clerks." 

212 


Chap.  III.]  CONSTRUCTION   OF   AUTH0KITIE8.  §  338. 

sequent  time  to  receive  payment  for  the  goods  sold,  after  the  ac- 
count had  gone  upon  the  books,  and  the  matter  had  passed  into 
other  hands,  is  evidently  not  so  clear.  If  payment  were  made 
CO  him  at  his  usual  place  in  the  store,  the  case  would  present  a 
different  aspect  than  if  it  had  been  made  to  him  at  his  own  home 
or  upon  the  street.  So,  too,  if  he  were  one  of  many  salesmen  in 
a  large  establishment  in  the  metropolis,  a  different  case  would  be 
presented  than  if  he  were  the  only  clerk  in  a  country  store  com- 
bining in  himself  salesman,  bookkeeper,  porter  and  collector.* 

Again  if  he  were  sent  about  the  country  with  authority  to  sell 
goods  entrusted  to  his  possession  for  that  purpose,  authority  to 
receive  payment  therefor  would  be  implied,  as  it  would  not  be 
presumed  that  the  principal  intended  that  they  should  be  parted 
with  without  payment.'  But  if  his  authority  was  simply  to 
solicit  orders  for  goods,  a  sample  of  which  he  had  in  his  possess- 
ion, it  being  left  for  the  principal  to  deliver  the  goods  in  pursu- 
ance of  the  orders  taken,  the  question  whether  the  agent  might 
subsequently  collect  payment  merely  as  an  incident  of  the  author- 
ity to  take  orders,  would  present  other  considerations.' 

§  337.  Authority  to  receive  Payment  not  implied  from  Poa- 
session  of  Bill.  The  mere  fact  that  one  claims  to  be  authorized 
to  receive  payment  is  no  evidence  of  his  authority,  nor  can  such 
authority  be  implied  from  the  mere  possession  by  the  assumed 
agent  of  the  bill  or  account,  though  made  out  upon  the  princi- 
pal's bill-head  and  in  his  own  handwriting.* 

§  338,  Agent  having  Possession  or  other  Indicia  of  Ownership 
may  receive  Payment.  Where  the  principal  entrusts  the  agent 
with  the  possession  of  the  goods  to  be  sold  and  authorizes  him  to 
sell  and  deliver  them,  authority  to  receive  payment  therefor  will 
be  implied,  and  a  payment  made  to  the  agent  at  the  time  of  the 

»  See  Davis  v.  Waterman,   10  Vt.  »  See  post,  %  337. 

526.  33  Am.  Dec.  216,  where  it  is  held  *  Hirshfleld  «.  Waldron,  64  Mich. 

that  a  clerk  in   a  country  store  with  649;  Dutcher  v.  Beckwith,  45  111.  460, 

whom  are  left  the  goods  and  demands  92  Am.    Dec.   232;    Kornemann    e. 

of  his  employer,  has  charge  of  both,  Monaghan,   24  Mich.   36;  Grover  & 

and  in  the  absence  of  his  principal.  Baker  Sew.   Machine  Co.   v.  Polh©- 

has  power  to  receive  pay  on  the  de-  mus,  34  Mich.  247;  Reynolds  r.  Contl- 

mands  and  to  institute  suits  for  their  nental  Ins.  Co.  36  Mich.  131 ;  McDoo- 

secvirity  when  an  emergency  arises.  ough  v.  Heyman,  38  Mich.  834. 

*  See  following  section. 

213 


§  339.  THE    LAW    OF   AGENCY.  [Book    II. 

sale  and  delivery,  or  as  part  of  the  same  transaction,  will  be  bind- 
ing upon  the  principal ;  *  of  course,  in  the  absence  of  any  knowl- 
edge on  the  part  of  the  purchaser  that  the  agent  was  not  author- 
ized to  receive  payment. 

Having  put  the  agent  into  such  a  position  that  he  may  appear 
to  the  world  as  the  owner  of  the  property,  or  having  held  him 
out  as  authorized  generally  to  sell,  it  would  be  a  fraud  upon 
those  who  had  paid  the  agent  in  good  faith,  for  the  principal  to 
be  permitted  to  assert  that  he  was  not  authorized  to  receive  pay- 
ment. 

§  339.  Agent  to  sell  merely  or  to  solicit  Orders,  without  Pos- 
session of  Goods,  not  authorized  to  receive  Payment.  Where 
however,  he  is  not  entrusted  with  possession,  the  sale  of  goods  by 
an  agent,  or  the  fact  that  he  is,  or  acts  as,  agent  to  solicit  orders 
for  goods,  will  not,  in  the  absence  of  a  controlling  usage  to  the 
contrary,  authorize  him  to  receive  payment  therefor.* 

§  340.  When  travelling  Salesmen  may  receive  Payment. 
The  practice  of  selling  goods  through  the  agency  of  travelling  sales- 
men who  go  from  place  to  place  exhibiting  samples  and  soliciting 
orders,  has  become  so  universal,  that  the  question  of  the  author- 
ity of  such  an  agent  to  subsequently  receive  payment  for  the  goods, 
has  become  very  important  and  has  been  much  discussed,  but  the 
decisions  have  not  been  entirely  uniform.  The  preponderance  of 
the  authority,  however,  is  undoubtedly  in  harmony  with  the 
principles  stated  in  the  preceding  section,  that  mere  authority  to 

» Butler  V.  Dorman,  68  Mo.  298,  30  79  Mo,   204;  Clark  «.  Smith,  88  IlL 

Am   Rep.  795;  Sumner  v.  Saunders,  298;  McKindly  v.  Dunham,  55  Wis. 

51    Mo.    89;  Rice  v.   Groffmann,  56  515,  42  Am.  Rep.  740;  Seiple  v.  Ir- 

Mo.  434;  Higgins  v.  Moore,  34  N.  Y.  win  SOPenn.  St  513;  Law?;.  Stokes,  8 

417;  Seiple  v.    Irwin,    30  Penn.    St.  Vroom  (N.  J.  L.)  249,  90  Am.  Dec. 

513;  Capel».  Thornton,  3  Car.  &  P.  655;  Higgins  v.  Moore,  34  N.  Y  417; 

352;  Pickering  v.  Busk,  15   East,  38;  Wright  v.  Cabot,  89  N.  Y.  570;  Cros 

Greely«,   Bartlett,    1    Greenl.    (Me.)  by «.  Hill,  39  Ohio  St.  100;  Graham 

173,10  Am.    Dec.   54;  Goodenow  v.  v.  Duckwall,  8  Bush.  (Ky.)13;  Abra- 

Tyler,   7  Mass.  37,  5  Am.  Dec.  22;  hams?).  Weiller,  87  111.  179;  Kohnu 

Brooks  ?).  Jameson,  55  Mo.  505;  Lum-  Washer,  64  Tex.  131,    53  Am.  Rep. 

ley  V.  Corbett,  18  Cal.  494.     See  also  745;  Greenhood  v.  Keator,  9  Ill.App. 

Howe  Machine   Co.   «.   Ballweg,  89  183;    Kornemann   v.  Monaghan,  24 

111.  818.  Mich.  36;  Bernshouse  v.  Abbott,    16 

«Janney  t».  Boyd,   80  Minn.    319;  Vroom   (N.    J.)  531,  46    Am.    Rep 

Buller   V.    Dorman,   68  Mo.    298,  30  789. 
Am.   Rep.  795;   Chambers  «.   Short, 

214 


Chap.  III.]  CON8TRU0TION   OF   AUTH0KITIE8.  §  342. 

solicit  orders  for  goods,  or  subscriptions  for  books  and  other 
articles  sold  by  subscription,  the  orders  or  subscriptions  to  be 
filled  by  the  principal,  implies  no  authority  in  the  agent  to  sub- 
sequently receive  payment,  and  payment  made  to  such  an  agent 
will  not  be  payment  to  the  principal,  unless  the  agent  be  in  fact 
authorized  or  the  principal  has  held  him  out  as  so  authorized.'  If 
however,  payment  in  whole  or  in  part  is  to  be  made  at  the  time 
the  order  or  subscription  is  taken,  authority  to  receive  such  pay- 
ment will  be  implied.* 

§  341.  Same  Subjeot— Whea  Payment  to  Agent  Part  of  Terms 
of  Sale.  But  it  has  been  held  that  an  agent  authorized  to  take 
the  order  has  the  implied  power  to  make  terms  of  payment  as  to 
time  and  place,  to  the  extent  at  least  of  what  was  customary  and 
not  extraordinary ;  and  that  where  it  is  made  one  of  the  terms  of 
sale  that  payment  may  be  made  to  the  agent  at  the  purchaser's 
place  of  business,  to  save  the  expense  and  trouble  of  remittance, 
payment  to  the  agent  was  payment  to  the  principal.* 

So  where  a  travelling  salesman  agreed,  though  without  author- 
ity, to  receive  certain  goods  in  part  payment  for  those  sold  by 
him,  the  purchaser  being  ignorant  of  his  want  of  authority,  it 
was  held  that  the  agreement  was  binding  upon  the  principal  who 
had  shipped  the  goods  to  the  purchaser.* 

§  342.  Same  Subject— Notice  of  Want  of  Authority.  It  is 
frequently  attempted  to  give  notice  to  the  purchaser  that  the 
agent  is  not  authorized  to  receive  payment,  by  printing  or  writing 
upon  the  bill  or  invoice,  a  warning  to  that  effect.  Actual  notice 
of  such  limitation  is,  of  course,  binding  upon  the  purchaser,  but 
whether  such  a  warning  can  be  held  to  be  constructive  notice 
seems  to  depend  largely  upon  the  degree  of  prominence  given  it. 

*  Kornemann    v.     Monaghan,     24  Am.   Rep.  682;  Trainor  v.  Morison, 

Mich.  86;  McKindly  v.  Dunham,  55  78  Me.  160,  57  Am.   Rep.  790;  Hos- 

Wis.  515,  43  Am.  Rep.  740;  Seiplet).  kins  v.  Johnson,    6    Sneed    (Tenn.) 

Irwin,    30  Penn.   St.  513;    Clark    v.  469. 

Smith,    88    111.    298;    Chambers   v.  *  Billings  ».   Mason,  —  Me.  — ,  6 

Short,    79    Mo.    204;    Greenhood    v.  New  Eng.  Rep.  791,  15  Atl.  Rep.  59, 

Keator,    9    111.    App.    183 ;  Law    v.  distinguishing  Clough  v.  Whitcomb, 

Stokes,  32  N.  J.  L.  249,  90  Am.  Dec.  105  Mass.  482,  and  Finch  v.   Mans- 

655;  Butler  v.  Dorman,   68  Mo.  298,  field,  97  Mass.   89,  and  likening  the 

30  Am.  Rep.  795.  case    to  Wilson   v.  Stratton,  47  Me. 

»  See  ante  §  337.  120. 

»  Putnam  v.  French,  63  Vt.  402,  88 

215 


g  342.  THE   LAW    OF   AGENCY.  [Book  11. 

Thus,  it  is  said  by  a  Wisconsin  judge,  "  On  the  face  of  the  bill 
sent  to  the  defendant,  and  directly  under  his  address,  there 
appears  in  large,  legible  print  in  red  ink,  as  if  stamped  upon  it, 
the  words  '  Agents  not  authorized  to  collect.'  «  *  *  If  these 
words  so  legible  and  prominent  on  the  face  of  the  bill,  would  not 
be  notice,  it  would  seem  to  be  impossible  to  give  a  purchaser  such 
a  notice.  By  all  authorities  he  must  be  presumed  to  have  ob- 
served these  words,  and  to  have  had  such  notice  when  they  were 
so  prominent  on  the  face  of  the  bill  of  goods  in  his  possession, 
and  in  which  he  alone  was  interested  as  purchaser.  It  might  as 
well  be  said  that  the  contents  of  any  written  or  printed  notice  of 
any  kind,  or  for  any  purpose,  were  not  presumed  to  have  been 
brought  home  to,  and  to  be  known  by,  a  party  on  his  receipt  of 
the  notice."  * 

In  a  Vermont  case  above  referred  to  it  is  said  :  "  It  is  further 
insisted  by  the  plaintiffs'  counsel  that  the  defendants  were 
charged  with  notice  that  they  must  pay  the  plaintiffs  and  not 
Allen  (the  agent)  by  reason  of  the  words  '  payable  at  office ' 
written  on  their  bill  rendered,  when  the  last  invoice  was  sent. 
The  defendants  did  not  see  those  words.  Therefore  they  had  no 
notice  in  fact.  Should  they  be  held  chargeable  with  notice  ?  The 
plaintiffs  sent  that  bill  without  any  letter,  when  the  goods  were 
sent,  which  was  three  months  before  the  time  of  payment  agreed 
upon.  The  defendants  examined  it  as  to  items  charged  and 
amount  of  same,  and  filed  it  away, — never  noticing  those  words  ; 
and  when  Allen  came  around  at  about  the  time  he  was  to  come 
for  the  pay  by  the  terms  of  the  sale,  they  paid  him  the  balance 
due, — supposing  all  the  while  that  he  was,  as  he  claimed  to  be,  a 
member  of  the  firm. 

In  view  of  the  obscure  manner  in  which  those  words  were 
written  on  the  bill-head  ;  and  of  the  circumstances  under  which, 
and  the  purposes  for  which  in  other  respects  that  bill  was  sent, 
and  of  the  terms  of  the  contract  as  to  whom  and  when  and  where 
payment  was  to  be  made,  we  do  not  think  the  defendants  were 
guilty  of  such  negligence,  in  not  seeing  those  words,  as  to  be 
chargeable  with  notice  which  they  did  not  in  fact  have.  It  was 
a  matter  which  the  plaintiffs  might  easily  have  made  plain. 
They  saw  fit  to  undertake  to  give  the  notice  in  an  obscure  way 

'  Orton,  J.  in  McKindly  t>.  Dunham,  65  Wis.  515,  42  Am.  Rep.  740. 

216 


Chap.  111.]  OONSTiiUOTlON    OF    AUTHOKITIKS.  §  345. 

which  was  likely  to  be  ineffectual.     It  turned  out  bo  and  they 
Bhoiild  bear  the  consequences."  ' 

So  goods  ordered  of  an  agent  were  delivered  as  agreed, 
accompanied  by  a  bill  with  the  words,  "  All  bills  must  be  paid 
by  check  to  our  order  or  in  current  funds  at  our  office,"  printed 
in  red  at  the  top.  About  two  weeks  afterward,  the  agent  called 
for  and  received  payment,  giving  to  the  purchasers  a  receipted 
bill  bearing  the  same  notice  in  red  letters  that  appeared  upon  the 
bill  sent  with  the  goods.  The  agent  embezzled  the  money. 
The  courL  said  :  "The  plaintiff  seeks  to  charge  the  defendants 
"with  knowledge  that  payment  was  required  to  be  made  according 
to  the  terms  of  the  notice  in  red  letters  upon  the  bill  sent  with 
the  goods.  The  defendants  did  not  see  the  notice,  nor  taking 
into  consideration  the  care  ordinarily  exercised  by  prudent  men, 
are  they  at  fault  for  not  observing  it.  It  is  not  so  prominent 
upon  the  bill  as  to  become  a  distinctive  feature  of  it,  one  that 
would  be  likely  to  attract  attention  in  the  hurry  of  business  and 
that  ought  to  have  been  seen  by  the  defendants.  It  would  have 
been  an  easy  matter  for  the  plaintiff  to  have  inclosed  the  bill  in 
a  letter  of  advice,  calling  the  attention  of  the  defendants  to  the 
fact  that  he  was  unwilling  to  intrust  collections  to  his  agent."  * 

§  343.  Same  Subject — No  implied  Authority  to  sell  his  Sam- 
ples. A  travelling  salesman  has  no  implied  authority  to  sell  the 
samples  furnished  him  by  his  principal  for  use  in  soliciting  or- 
ders. His  sale  of  them,  therefore,  and  receipt  of  payment  there- 
for, will  be  no  bar  to  the  recovery  of  their  value  by  his  principal 
from  the  purchaser." 

§  344.  Same  Subject — Purchaser  cannot  set  off  Debt  due  from 
Agent.  For  reasons  similar  to  those  preventing  payment  to  an 
agent  authorized  merely  to  sell,  the  purchaser  cannot  set  off 
against  the  principal  a  debt  due  him  from  the  agent.* 

§  345.  Same  Subject— Implied  Authority  to  hire  Horses.  So 
an  agent  authorized  to  travel  from  place  to  place  to  sell  his  prin- 

*  Veazet,  J.  in  Putnam  v.  French,  Stokes,  33  N.  J.  L.  849,  90  Am.  Dec. 

53  Vt.  403,  38  Am.  Rep.  683.  655. 

«  Trainor  v.  Morison,   78  Me.  160,  »  Kohn  v.  Washer,  64  Tex.  181,  53 

67  Am.  Rep.  790;  see  also  Kinsman  Am.  Rep.  745. 

V  Kershaw,  119  Mass.  140;  Wass  v.  *  Bernshouse  t>.  Abbott,  16  Vroom 

M.  M,  Ins.  Co.,  61  Me.  587;  Law  v.  (N.  J.)  631,  46  Am.  Rep.  789. 

217 


g  34.(J.  THE   LAW    OF   AGENCY.  [Book  II. 

cipal's  goods,  has  implied  authority  to  hire  horses  and  carriages, 
when  necessary  for  use  in  the  course  of  his  employment,  to 
transport  himself  and  his  samples  ;'  and  for  that  purpose  he  may 
use  his  principal's  funds  in  his  hands,  or  pledge  his  principal's 
credit.  And  even  though  the  agent  may  have  been  supplied  by 
the  principal  with  money  for  that  purpose,  and  forbidden  to 
pledge  the  credit  of  the  principal  therefor,  the  principal  will  be 
liable  to  one  who  in  good  faith  has  supplied  the  agent  with 
horses,  without  knowledge  of  those  instructions.* 

§  346.  Same  Subject— Authority  to  procure  other  Supplies. 
But  from  the  mere  fact  that  an  agent  employed  to  sell  goods,  has 
intrusted  to  his  possession  a  horse  and  wagon  of  the  principal  as 
well  as  the  goods  for  sale,  the  law  will  not  imply  a  contract  on 
the  part  of  the  principal  to  pay  for  the  board  of  the  agent  or  the 
keeping  of  the  horse.'  Nor  is  the  principal  responsible  for  a 
hotel  bill  covering  a  period  of  several  months  and  contracted  by 
his  commercial  travelling  agent  without  notice  to  or  authority 
from  the  principal,  it  being  the  custom  to  pay  cash.* 

8  347.  Implied  Authority  to  warrant  Quality.  The  question 
of  the  implied  power  of  an  agent  authorized  to  sell,  to  warrant  the 
quality  of  the  goods  sold,  is  a  very  important  one,  and  one  that 
has  often  arisen,  but  upon  which  the  authorities  are  not  harmo- 
nious. It  has  been  attempted  in  many  cases  to  settle  the  ques- 
tion by  reference  to  the  arbitrary  distinction  made  between  gen- 
eral and  special  agencies  ;  but  while  these  rules  may  suffice  to 
determine  many  of  the  questions  arising  between  the  principal 
and  his  agent,  they  are  not  satisfactory  in  considering  the  liabili- 
ty of  the  principal  to  third  persons.  This  question  must  be  de- 
termined by  the  same  principles  which  govern  the  liability  of 
the  principal  for  the  acts  of  the  agent  in  other  cases. 

Every  person  dealing  with  an  assumed  agent  is  bound  at  his 
peril  to  ascertain  the  nature  and  extent  of  the  agent's  authority ; 
but  authority,  as  has  been  seen,  is  not  dependent  entirely  upon 
the  instructions  given,  but  is  an  attribute  of  the  character  in 
which  the  principal  holds  the  agent  out  to  the  public.     "Whatever 

*  Huntley  e.  Mathias,  90  N.  C.  101,  8.  C.  465;  Grover  &  Baker  S.  Mach. 

47  Am.  Rep.  516;  Bentley  v.  Doggett,  Co.  v.  Polhemus,  34  Mich.  247. 
51  Wis.  244,  37  Am.  Rep.  827.  ♦  Covington  v.  Newberger,  —  N.C. 

«  Bentley  v.  Doggett,  supra.  (1888),  27  Cent.  L.  Jour.  263,  6  S.W. 

»  Sampson  v.  Singer  Mn'f  g  Co.,  5  Rep.  205. 

218 


Chap,  iil.j  OONBTEUCTION    OF   AUTHORITIES, 


§348. 


attributes  properly  belong  to  that  character  will  be  presumed  to 
exist,  and  they  cannot  be  cut  off  by  private  instructions  of  which 
those  who  deal  with  the  agent  are  ignorant.  Among  these  at- 
tributes is  tlie  power  to  do  all  that  is  usual  and  necessary  to  ac- 
complish the  object  for  which  the  agency  was  created. 

§  348.  Same  Subjact— The  general  Rule.  Authority  conferred 
upon  an  agent,  whether  general  or  special,  to  sell  personal  prop- 
erty carries  with  it,  in  the  absence  of  countervailing  circumstan- 
ces known  to  the  party  with  whom  he  deals,  implied  power  to 
make  in  the  name  of  the  principal  such  a  warranty  of  the  qual- 
ity and  condition  of  the  property  sold  as  is  usually  and  ordi- 
narily made  in  like  sales  of  similar  property  at  that  time  and 
place.' 

The  question  of  what  is  usual  in  such  a  case  is  ordinarily  a 
question  of  fact  to  be  determined  by  the  jury,'  but  in  certain 
cases  the  court  will  take  judicial  notice  of  it.'  The  usage  must 
be  so  well  settled,  notorious  and  continuous,  as  to  raise  the  legal 
presumption  that  it  was  known  to  buyer  and  seller  and  that  the 
sale  was  made  in  reference  to  it.*     If  it  is  purely  local,  the  prin- 

I  Pickert  v.  Marston,  68  Wis.  465,      Gunn,  9  Port.   (Ala.)  305;  Cocke  v. 


60  Am.  Rep.  876,  33  N.  W.  Rep. 
550;  Ahem  v.  Goodspeed,  73  N.  Y. 
108;  Talmage  v.  Bierhause,  103  Ind. 
370;  Herring  v.  Skaggs,  63  Ala.  180, 
34  Am.  Rep.  4;  McAlpin  v.  Cassidy, 
17  Tex.  449;  Schuchardt  v.  Aliens,  1 
Wall.  (U.  S.)  859;  Palmer  «.  Hatch, 
46  Mo.  585;  Huguley  ».  Morris,  65 
Ga.  666;  Deming  v.  Chase,  48  Vt. 
883;  Boothbyc.  Scales.  37  Wis.  63G; 
Murray  v.  Brooks,  41  Iowa,  45;  Tice 
V.  Gallup,  3  Hun  (N.  Y.)  446;  Smith 
V.  Tracy,  36  N.  Y.  83;  Nelson  v. 
Cowing,  6  Hill  (N.  Y.)  336;  Hunter 
?7.  Jameson,  6  Ired.  (K  C.)  L.  353; 
Ezell  t.  Franklin,  3  Sneed  (Tenn.) 
236;  Bradford®.  Bush,  10  Ala.  386; 
Bryant  t.  Moore,  26  Me.  84,  45  Am. 
Dec.  96;  Cooley  u  Perrine,  13Vroom 
(N.  J.)  323,  82  Am.  Rep.  210;  Decker 
V.  Fredericks,  47  N.  J.  L.  469;  Scott 
V.  McQrath,  7  Barb.  (N.  Y.)  53;  Mil- 
burn  V.  Belloni,  34  Id.  607;  Gaines  v. 
McKinley,   1    Ala.    446;  Skinner    v. 


Campbell,  13  Ala.  286;  Davis  v.  Bur- 
nett, 4  Jones,  (N.  C.)  L.  71,  67  Am. 
Dec.  263;  Upton  v.  Suffolk  Mills,  11 
Cush.  (Mass.)  586,  59  Am.  Dec.  163; 
Graves  v.  Legg,  2  Hurl.  &.  N.  210; 
Dingle  e.  Hare,  7  C.  B.  (N.  8.)  145, 
97  Eng.  Com.  L.  145;  Alexander  v. 
Gibson,  2  Camp.  555;  Fay  v.  Rich- 
mond, 43  Vt.  35;  Morris  v.  Bowen,53 
N.  H.  416;  Applegate  v.  Moffitt,  60 
Ind.  104;  Randall  v.  Kehlor,  60  Me. 
37;  Croom  v.  Shaw,  1  Fla,  311;  Wil- 
liamson ».  Canaday,  3  Ired.  (N.  C.) 
L.  349;  Sandford  t».  Handy,  33 
Wend.  (N.  Y.)  360;  Taggart  v.  Stan- 
bery,  3  McLean  (U.  S.  C.  C.)  543; 
Woodford  v.  McClenahan,  4  Gilm. 
(111.)  85. 

«  Herring  D.  Skaggs,  supra;  Pickert 
».  Marston,  supra. 

»  Ahern  v.  Goodspeed,  supra;  Tal- 
mage V.  Bierhause,  supra. 

«  Herring  v.  Skaggs,  supra. 


219 


§  349.  THE    LAW    OF    AGENCY.  [Book  II. 

cipal  may  rebut  the  presumption  of  knowledge  by  showing  that, 
in  fact,  he  did  not  know  of  it,  in  which  case  he  will  not  be 
bound.'  Proof  of  the  usage  is  admissible  in  behalf  of  either 
party.* 

§  349.  Illustrations  of  this  Eule.  Thus  in  a  New  York  case, 
the  court  said  it  was  within  their  judicial  observation  from 
many  cases  before  them,  that  a  warranty  of  commercial  charac- 
ter was  the  usual  accompaniment  of  a  sale,  upon  the  New  York 
stock  exchange,  of  promissory  notes  having  the  guise  of  com- 
mercial paper,  and  it  was  held  that  an  agent  authorized  to  sell 
such  paper  had  implied  power  to  make  such  a  warranty.' 

So  the  court  will  take  judicial  notice  that  it  is  usual  and  custo- 
mary in  ordering  goods  of  a  dealer,  through  his  agent,  to  require 
a  warranty  of  quality,  where  the  goods  are  not  present  and  sub- 
ject to  the  inspection  of  the  purchaser,  and  authority  to  make 
such  a  warranty  will  be  implied.* 

Again,  sales  of  implements  and  machinery  by  the  manufactur- 
ers are  so  generally  accompanied  by  a  warranty  of  fitness  for  the 
purpose  for  which  they  are  intended,  that  an  agent  commissioned 
to  sell  them,  will  be  presumed  to  have  authority  to  make  such  a 
warranty  ;*  and  evidence  is  not  admissible  to  prove  that  it  was 
not  the  custom  of  such  a  manufacturer  to  warrant,  unless  it  also 
be  shown  that  the  purchaser  had  notice  of  that  custom ;  •  nor 
that  the  agent  was  expressly  prohibited  to  warrant,  unless  notice 
of  such  prohibition  be  brought  home  to  the  purchaser.' 

So  such  an  agent  has  implied  power  to  sell  upon  trial  and  to 
give  the  purchaser  the  privilege  of  returning  the  machine  if  not 
satisfactory;'  and  may  sell  upon  condition  that  the  sale  shall  not 
be  consummated  if  the  machine  does  not  do  good  work  ;•  and, 
having  sold  upon  condition  that  if  the  machine  does  not  prove 
satisfactory  to  the  purchaser,  he  shall  return  it,  the  agent  may 
waive  such  return.'* 


*  Pickert  v.    Marston,    tupra;   gee         ■  McCormick  e.  Kelly,  28  Minn.  185 
ante,  %  281.  (a  harvesting  machine.) 

s  Pickert  e.  Marston,  supra.  •  Murray  t».  Brooks,  41  Iowa,  45  (a 

•Ahern  «.  Qoodspeed,  72 N.  T.  108,      reaping  machine.) 
114.  T  Boothby  v.  Scales,  27  Wis.  626. 

<Talmage  v.   Bierhause,   103  Ind.  «Deering  «.  Thom,  29  Minn.  120. 

270.  »Oster  v.  Mickley,  35  Minn.  245. 

i''Pitsinowskyt>.Beardsley,37Iowa,9. 
220 


Chap.  III.]  ooNSTRUonoN  of  authorities.  §  350, 

An  agent  authorized  to  sell  goods  by  sample  will  have  the 
implied  authority  to  make  the  warranty  usual  in  such  cases,  that 
the  goods  sold  are  equal  to  the  sample.' 

Evidence  that  the  authority  of  the  agent  to  warrant  was  limi- 
ted to  the  giving  of  a  printed  warranty  only,  furnished  him  by 
his  principal,  is  not  admissible,  unless  it  be  also  shown  that  the 
purchaser  had  knowledge  of  the  limitation  ;  *  but  where  the  pur- 
chaser has  knowledge  that  such  a  warranty  was  furnished,  he 
cannot  accept  an  oral  warranty  from  the  agent,  different  in  its 
terms,  and  require  the  principal  to  comply  with  such  oral  war- 
ranty.' 

The  fact  that  the  vendor  of  a  steam  boiler,  by  his  agent,  fur- 
nishes the  vendee  at  the  time  of  the  sale  with  a  pamphlet  de- 
scriptive of  the  boilers,  in  which  their  durability  is  advertised  as 
an  essential  quality,  is  evidence  from  which  the  agent's  authority 
to  warrant  their  durability  may  be  inferred.  * 

§  350.  Limits  of  this  Rule.  But  this  rule  is  not  to  be  extend- 
ed beyond  the  limits  prescribed  by  it.  It  cannot,  therefore,  ap- 
ply to  sales  of  property  not  usually  sold  with  such  a  warranty, 
nor  to  sales  made  under  such  circumstances  that  such  a  warranty 
is  not  usually  given,  nor  can  it  give  countenance  to  any  unusual 
or  extraordinary  warranty. 

Thus  though  an  agent  authorized  to  sell  liquors  may  warrant 
their  quality  and  condition,  he  has  no  implied  power  to  warrant 
that  they  will  not  be  seized  for  violation  of  the  revenue  laws  ; » 
nor  can  an  agent  employed  to  sell  flour,  without  express  authority, 
warrant  that  it  will  keep  sweet  during  a  sea  voyage  from  Massa- 
chusetts to  California.* 

So  an  agent  authorized  to  take  orders  for  his  principal's  goods 

'  Andrews  v.  Kneeland,  6  Cow.  (N.  pressly  provides  that  the  agent  has  no 

Y.)  354;     Dayton  v.    Hooglund,   89  authority  to  change  or  vary  its  terms, 

Ohio  St.  671;  Schuchardt  e.  Aliens,  1  such  provision  is  a  sufficient  notice 

Wall.  (U.  S.)  359;  Murray  «.  Smith,  to  the  purchaser  of  the  limitations 

4  Daly  (N.  Y.)  277.  upon  the    agent's    authority.      Fur- 

2  Murray  v.  Brooks,  41  Iowa,  45.  neaux  v.  Easterly,  86  Kans.  539. 

» Wood    Mow.   &  Reap.   Machine  *  Smilie  «.  Hobbs,  —  N.  H.   — ,  6 

Co.  e.   Crow,  70  Iowa,  340;  limiting  Atl.  Rep.  711. 

Eadie  v.  Asbbaugh,  44  Iowa,  519,  and  •  Palmer  v.  Hatch,  46  Mo.  685. 

Farrar  v.    Peterson,   52    Iowa,    420.  'Upton  c.  Suffolk  County  Mills,  11 

Where  the    purchaser   is   furnished  Cush.  (Mass.)  586,  69  Am.  Dec.  163. 
with  a  printed  warranty  which  ex- 

221 


8  351.  THB  LAW  OF  AGENOT.  [Book  IL 

may  warrant  that  the  principal  will  not  sell  similar  goods  to  any 
other  dealer  in  the  same  town ; '  but  he  cannot  warrant  that  his 
principal  will  not  afterward  sell  to  others  similar  goods  for  a  less 
price.*  And  though  an  agent  employed  to  sell  negotiable  notes 
would  have  implied  authority,  when  necessary,  to  endorse  them, 
he  would  have  no  implied  authority  to  make  an  additional  guar- 
antee of  payment.* 

Nor  has  an  agent  authorized  to  sell  safes,  implied  authority  to 
warrant  that  they  are  burglar  proof.* 

Whether  an  agent  employed  to  sell  a  horse  has  implied  power  to 
warrant  his  soundness,  has  been  much  discussed  and  the  authorities 
are  not  harmonious.  Thus  it  has  been  held  that  an  agent  of  a 
horse  dealer  has  such  implied  power,  and  that  it  cannot  be 
affected  by  private  instructions  from  the  principal  not  to  war- 
rant ;  *  but  that  the  agent  of  a  private  individual  or  a  special 
agent  has  no  such  implied  power,  even  in  the  absence  of  any 
restrictions.*  On  the  other  hand,  it  has  been  decided  that  unless 
expressly  forbidden,  the  agent  would  have  such  an  implied 
power ; '  and  in  still  other  cases,  the  authority  has  been  declared 
in  general  terms.* 

But  no  satisfactory  reason  is  perceived  why  the  question  of 
the  warranty  of  a  horse  should  stand  upon  any  different  basis  than 
the  warranty  of  any  other  chattel. 

§  351.  Authority  to  warrant  Title.  An  agent  authorized  to 
sell  goods,  as  the  goods  of  his  principal,  would  have  implied 
authority  to  warrant  his  principal's  title.  Warranties  of  this 
sort  are  usual,  and  would  be  implied  if  the  principal  himself  were 
to  offer  for  sale  goods  in  his  own  possession.* 

*  Keith  V.  Hirscbberg  Optical  Co.,  the  distinction  between  a  general  and 

—  Ark.  — ,  2  S.  W.  Rep.  777.  a  special  agency. 

•Anderson  «.   Bruner,    113  Mass.  »Deming  b.  Chase,  68  Vt.  383;  Tice 

14.  •.  Gallup,  2  Hun  (N.  Y.)  446. 

» Qraul  V.  Strutzel,  53  Iowa,  712.  »  Ezell  v.  Franklin,  2  Sneed  (Tenn.) 

« Herring  «.  Skaggs,  63  Ala,  180,  34  236;  Skinner  v.  Gunn,  9  Port  (Ala.) 

Am.  Rep.  4,  Same  Case,  73  Ala.  446.  305;  Lane  v.  Dudley,  2  Murph.  (N. 

»  Howard  v.  Sheward,  L.  R  ^,  2  C.  C.)  119,  5  Am.  Dec. -523;  Gaines  v.  Mc- 

p,  148.  Kinley,     1    Ala.    446;    Helyear     c. 

« Brady  v.   Todd.  9  C.  B.  (N.   S.)  Hawke,  5  Esp.  73;  Alexander  e.  Gib- 

592;  Cooley  e.  Perrine,  13  Vroom  (K  son,  2  Camp.  555;  Bradford  ».  Bush, 

J.)  323,  33  Am.  Rep.  210.     The  de-  10  Ala.  386. 

cision  in  this  case  was  based  solely  on  •  See  Benjamin  on  Sales,  Bennett's 

Ed.  §  641,  and  cases  cited. 

222 


Cliap.  III.]  CONSTKUCTION    OF   AUTH0JRITIE8. 


§  354. 


§  352.  No  implied  Power  to  exchange  or  barter.  Mere  au- 
thority to  sell  gives  an  agent  no  power  to  exchange  the  chattels 
for  other  property,  or  to  take  anything  else  than  money  in  pay- 
ment for  them.^  He  cannot  therefore,  take  payment  in  notes, 
checks  or  other  paper.'  And  having  received  payment  in  money, 
he  has  no  authority  to  exchange  the  money  with  a  third  person 
for  other  money,  and  if  he  does  so  and  receives  a  counterfeit 
bill,  his  principal  may  recover  the  money  given  for  it.* 

§  353.  No  implied  Power  to  give  Credit.  In  the  absence  of 
anything  to  the  contrary,  it  will  be  presumed  that  the  sale  is  to 
be  for  cash  in  hand.  An  agent  authorized  to  sell  chattels  has, 
therefore,  no  implied  power  to  give  credit,  unless  there  is  a  valid 
usage  to  that  effect  at  that  time  and  place. ^ 

§  35i.  No  Authority  to  appropriate  to  his  own  Use.  An 
agent  entrusted  with  goods  to  sell  for  his  principal,  has  no  right 
to  sell  or  deliver  them  in  payment  of  his  own  debt,  or  to  pledge 
them  as  security  for  his  own  debt,  and  persons  dealing  with  such 
an  agent  are  bound  to  take  notice  of  this  limitation  of  his  author- 
ity.'    A  creditor  therefore  who  receives  the  goods  under  such  an 


>  Trudo  V.  Anderson,  10  Mich.  357, 
81  Am.  Dec.  795;  Wheeler  &  Wilson 
Mnfg.  Co.  V.  Givan,  65  Mo.  89;  Tay- 
lor V.  Starkey,  59  K  H.  143;  Brown 
«.  Smith,  67  K  C.  245;  Victor  Sew- 
ing Mach.  Co.  V.  Heller,  44  Wis.  265; 
Kent  V.  Boistein,  12  Allen  (Mass.) 
342;  City  of  Cleveland  v.  State  Bank, 
16  Ohio  St.  246,  88  Am.  Dec.  445; 
Guerreiro  v.  Peile,  3  B.  &  Aid.  616. 

'Buckwalter  v.  Craig,  55  Mo.  71, 
A  direction  to  sell  for  cash  does  not 
permit  the  agent  to  take  a  check  pay- 
able the  day  after  the  sale,  even 
though  that  be  the  customary  way  at 
the  place  of  sale  of  making  what  are 
there  called  cash  sales.  Hall  v.  Storrs, 
7  Wis.  253.  An  agent  who  takes 
check  payable  ten  days  after  date  is 
liable  if  bank  fails  before  payment. 
Harlan  v.  Ely,  68  Cal.  523. 

•KentiJ.  Borstein,  supra. 

♦Payne  v.  Potter,  9  Iowa,  549;  May 
V.  Mitchell,  5  Humph.  (Tenn.)  365; 
Burks    V.    Hubbard,     69    Ala.    379; 


School  District  v.  Mtn&  Ins.  Co.,  62 
Me.  330;  State  «.  Delafleld,  8  Paige 
(N.  T.)  537.  That  a  factor  may  sell 
on  credit,  see  post.  Chapter  on  Fact- 
ors. 

•Wheeler  &  Wilson  Mnfg.  Co.  «. 
Givan,  65  Mo.  89;  Holton  v.  Smith, 
7  K  fl.  446;  Whitney  v.  State  Bank, 
7  Wis.  620;  Burks  v.  Hubbard,  69 
Ala.  379;  Stewart  «.  Woodward,  50 
Vt.  78,  38  Am.  Rep.  488;  Levi  v. 
Booth,  58  Md.  305,  43  Am.  Rep.  332; 
Williams  v.  Johnston,  93  N.  C.  532, 
53  Am.  Rep.  428;  Parsons  v.  Webb, 
SQreenl.  (Me.)  38,  22  Am.  Dec.  330; 
Greenwood  v.  Burns.  50  Mo.  53; 
Butts  V.  Newton,  29  Wis.  632;  Rodick 
V.  Coburn,  68  Me.  170;  McCormickr. 
Keith,  8  Neb.  143;  Hart  v.  Hudson.  6 
Duer  (N.  Y.)  394;  Hurley  v.  Watson, 
—  Mich.  — .  13  West.  Rep.  543; 
Sykes  v.  Giles,  5  M.  &  W.  645;  Scott 
V.  Irving,  1  B.  &  Ad.  605;  Catterall 
V.  Hindle,  L.  R.  1  0.  P.  187. 


223 


§  355.  THE   LAW   OF   AGENCY.  [Book  IL 

arrangement,  as  well  as  his  vendee,  though  acting  in  good  faith 
and  in  ignorance  that  the  goods  did  not  belong  to  the  agent, 
acquires  no  title  thereto  as  against  the  principal.' 

§  355.  No  implied  Authority  to  release  Principal's  Rights  or 
pay  his  Debts.  Neither  has  such  an  agent  any  implied  power  to 
release  a  debt  due  to  his  principal ;'  nor  has  a  mere  clerk  em- 
ployed in  his  principal's  store,  any  implied  authority  to  com- 
pound or  compromise  debts  due  to  his  employer;'  or  to  sell  goods 
at  wholesale  prices  for  a  debt  due  from  his  principal  ;*  or  to  de- 
liver goods  in  payment  of,  or  as  security  for,  a  note  signed  by  his 
employer.* 

§  356.  No  Authority  to  pledgd  Goods.  An  authority  to  sell 
goods  implies  no  power  to  pledge  them.* 

§  357.  No  Authority  to  promise  Commissions  for  Sub-Sales. 
An  agent  authorized  to  sell  his  principal's  goods  has  no  implied 
authority  to  bind  his  principal  by  a  promise  to  pay  commissions 
to  third  persons  for  sales  made  by  them  for  the  principal ;'  nor 
having  property  to  be  sold  for  cash,  like  railroad  tickets,  has  he 
implied  power  to  deliver  it  to  a  third  person  to  sell,  to  be  paid 
for  when  sold,  and  to  bind  the  principal  by  promising  such  third 
person  a  commission  upon  sales  made  by  him.* 

§  358.  No  Authority  to  sell  at  Auction— When.  An  agent 
authorized  to  sell  property  cannot,  without  express  authority, 
sell  it  at  auction ;  and  a  purchaser  at  such  a  sale,  with  notice  of 
the  agent's  powers,  or  where  the  circumstances  were  sufficient  to 
put  him  upon  inquiry,  who  fails  to  make  inquiry,  acquires  no 
title.*     So  under  a  power  of  attorney  authorizing  a  sale  only  at 

>  Warner  v.  Martin,  11  How.  (U.  S.)  <Lee  v.  Tinges,  7  Md.  215;   Ilamp- 

209 ;  Belton  Compress  Co.  v.  Belton  ton  v.  Matthews,  14  Penn.  St.  105. 

Brick   Mfg.    Co.,    64  Tex.    337;    De  »Nash  v.   Drew,   5   Cuslx.    (Mass.) 

Bouchout  V.   Goldsmid,  5  Ves.  Jun.  422. 

211,  and  cases  above  cited.    An  agent  •Voss  v.  Robertson,    46  Ala.  483; 

cannot  bind  bis  principal  by  an  agree-  "Wheeler    &    Wilson    Mnfg.    Co.    9, 

ment  to   pay  his  own   private  debts  Givan,  65  Mo.  89. 

out  of  his  principal's  property.     Rice  ^  Atlee  v.  Fink,  75  Mo.  100,  42  Am. 

V.  Lyndborough  Glass  Co.,  60  N.  H.  Rep.  385. 

195.  *  Frank  v.  Ingalls,  41  Ohio  St.  560, 

« Smith  V.  Perry,  29  N.  J.  L.  74.  »Towle  v.  Loavitt,  23  N.  H.  860, 

» Powell's  Admr.  v.  Henry,  37  Ala.  55  Am.  Dec.  195. 


612. 


224 


Chap.  III.]  00N8TBU0TI0N   OF   AUTHORITIES.  §  362. 

auction,  a  private  sale  is  void  and  confers  no  title  on  the  pur- 
chaser.  * 

§  359.  Authority  when  to  be  executed.  An  authority  to 
sell  the  property  upon  a  particular  day  specified  confers  no  power 
to  sell  it  upon  a  subsequent  or  different  day  ;*  neither  is  there 
any  presumption  that  an  authority  to  sell  goods  in  a  single  in- 
stance continues  for  several  years  afterward.' 

§  360.  No  Authority  to  rescind  the  Sale.  After  the  contract 
of  sale  made  by  the  agent  has  become  complete,  the. agent  has  no 
implied  authority  to  rescind  or  discharge  it,  or  to  receive  back 
the  goods,*  particularly  where  the  sale  has  been  fully  executed.^ 

§  361.  No  Authority  to  mortgage.  Authority  to  an  agent  to 
sell  personal  property,  implies  no  authority  to  mortgage  it.* 

§  362.  Authority  to  fix  Price  and  Terms  of  Sale.  An  agent 
clothed  with  general  power  to  sell  personal  property  without  re- 
strictions, has  implied  authority  to  fix  the  price  and  to  agree 
upon  the  terms  of  the  sale.'  The  price  so  fixed,  however,  should 
not  be  less  than  the  market  price,  if  there  be  a  market  price,  and 
in  any  event  should  not  be  less  than  a  reasonable  price.'  And  so 
as  to  the  terms  of  the  sale ;  they  should  be  the  usual  terms,  if 
there  be  any  usage,  and  in  any  case  the  terms  should  be  reason- 
able.' 

The  principal  may  lawfully  prescribe  the  price  and  terras  upon 
which  the  sale  is  to  be  made,  and  these  regulations  will  be  bind- 
ing upon  the  agent,"  and,  if  they  have  notice  of  them,  upon  third 

•  The  Q.  H.  Montague,  4  Blatch'  time,  place,  and  mode  of  delivery 
(U.  S.  C.  C.)  464.  and  the  price  of  the  goods,  and  the 

*Bli88  V.  Clark,  16    Gray  (Mass.)  time  and  mode  of  payment,  and  to 

60.  receive  payment  of  the  price,  subject 

9  Reed  v.  Baggott,  5  111.  App.  257.  of  course,  to  be  controlled  by  proof 

<  Diversy  v.  Kellogg,  44  111.  114,  93  of  the  mercantile  usage  in  such  trade 

Am.   Dec.    154;    Stilwell  v.   Mutual  or  business."    Daylight  Burner  Co. 

Life  Ins.  Co.,  73  N.  Y.  385.  v.  Odlin,  supra. 

»  Adrian  v.  Lane,  13  S.  C.  183.  •  Bigelow  v.  Walker,  24  Vt.  140,  58 

•  Switzer  v.  Wilvera,  34  Kans.  384,  Am.  Dec.  156. 

86  Am.  Rep.  259.  •  Putnam  v.  French,  $ttpra.     Such 

'  Daylight  Burner  Co.  t».  Odlin,  51  an  agent,  it  is  there  held,  has  appar- 

N.  H.  56,  12  Am.  Rep.  45;  Putnam  ent  authority  "  to  make  terms  of  pay- 

V.  French,  53  Vt.  403,  38  Am.  Rep.  ment  as  to  time  and  place,  to  the 

683.     As  incident  to  the  general  au-  extent  at  least  of  what  was  customary 

thority  to  sell,  the  agent  has  "  power  and  not  extraordinary," 

to  fix  the  terms  of  sale,  including  the  »•  See  Wolf  v.  Lyster,  1  Hall  (N. 

15  225 


§  363.  THE   LAW   OF    AGENOT.  [Book  II. 

persons.  Private  instructions  as  to  price  and  terms  cannot,  how- 
ever, affect  those  who,  with  no  notice  of  them,  have  dealt  with 
the  agent  in  good  faith,  relying  upon  an  apparent  general  au- 
thority.* But  such  third  persons  must  have  exercised  reasonable 
prudence,  and  if  the  price  or  terms  fixed  by  the  agent  were  so 
unusual  or  so  unreasonable  as  to  fairly  put  a  prudent  man  upon 
his  guard,  they  will  not  be  protected.' 

III. 

OF   AGENT   AUTHORIZED   TO   PXIROHASE. 

I  363.  May  not  bay  on  Credit,  when  furnished  with  Funds. 
An  agent  authorized  to  purchase  goods  for  his  principal,  and  who 
is  supplied  with  funds  for  that  purpose,  has  no  implied  authority 
to  bind  his  principal  by  a  purchase  on  credit ;  and  in  such  a  case 
the  principal  will  not  be  bound  by  a  purchase  on  credit,  although 
the  goods  come  in  fact  to  his  use,  unless  he  has  knowledge  of  the 
fact  and  does  something  in  ratification  of  it,  or  unless  it  be 
shown  that  it  is  the  custom  of  the  trade  to  buy  on  credit.'  A 
mere  authority  to  buy  does  not  imply  power  to  buy  on  credit* 

So  authority  to  buy  goods  and  pay  for  the  same  with  funds 
furnished  by  the  principal,  does  not  authorize  the  agent  to  make 
advances  of  the  money  of  his  principal,  nor  to  sell  and  guarantee 
the  payment  by  the  principal  of  unsettled  accounts  that  have 
been  received  in  satisfaction  of  such  unauthorized  advances.* 

8  364.  May  buy  on  Credit  when  not  supplied  with  Funds. 
An  agent,  however,  who  is  directed  to  purchase  goods,  but  is  not 
supplied  with  the  necessary  funds,  has  implied  power  to  purchase 
such  goods  on  the  credit  of  his  principal.*  And  it  has  been  held 
that  an  agent  who  has  general  authority  to  buy  and  sell  goods 

Y.)  146;  Steele  c,  Ellmaker,  11  Serg.  (Mass.)    128;    Sprague  v.   Gillett,    9 

«&  R.  (Penn.)  86.  Mete.  (Mass.)  91;   Fraser  ^).  McPher- 

iTowle  V.  Leavitt,  23  N.  H.  360,  65  son,  3  Desau.  (S.  C.)  393;  Parsous  t>. 

Am.  Dec.  195.  Armor,  3  Pet.  (U.  S.)  413,    1  Myers 

9  See  ante,  §  289.  Fed.  Dec.  §  49. 

•Komorowski    v.    Krumdick,     66  « Berry  «.  Barnes,  23  Ark.  411. 

"Wis.  23;   Jaques  «.  Todd,  3  Wend.  »Bohart  o.  Oberne,  36  Kans.  284. 

(N.  Y.)  83;  Adams  tj.  Boies,  24  Iowa,  «  Sprague  v.  Gillett,  9  Mete.  (Mass.) 

m-,  Tabert).  Cannon,  8  Mete.  (Mass.)  91. 
456;    Temple    c.    Pomroy,    4    Gray, 

226 


Chap.  IL]  CONSTRUCTION   OF   THE   AUTHORITT.  §  368, 

for  his  principal,  ma}^  buy  on  credit  or  for  cash  at  his  discr©* 
tion.' 

§  365.  Has  Power  to  agree  upon  Price  and  Terms  of  Purchaso. 
An  agent  invested  with  general  authority  to  purchase  goods  for 
his  principal  has,  in  the  absence  of  contrary  limitations  upon  his 
authority,  implied  power  to  settle  upon  the  usual  incidents  of  the 
purchase.  Thus  he  may  agree  upon  the  price  and  terms  of  pay- 
ment; he  may  determine  upon  the  time  and  method  of  delivery;* 
he  may  acknowledge  the  receipt  of  the  goods  and  the  amount  of 
indebtedness  therefor  ;•  and  may  in  general  do  those  things,  not 
inconsistent  with  his  authority,  which  are  proper  and  usual  to  do 
in  such  cases. 

In  this  case,  however,  as  in  others,  limitations  may  lawfully  be 
imposed  upon  the  agent's  authority,  which  will  be  binding  upon 
the  agent,  and  upon  third  persons  having  knowledge  or  charged 
with  notice  of  them.* 

§  366.  May  not  exceed  Limits  as  to  Quantity.  An  agent 
commissioned  to  buy  goods  to  a  certain  quantity,  must  confine 
his  purchase  within  the  limits  given.  And  he  has  no  more  im- 
plied power  to  purchase  a  smaller  than  a  greater  quantity.'  If  no 
limits  are  fixed,  a  reasonable  discretion  may  be  exercised. 

8  367.  Must  observe  Limits  as  to  Quality  or  Species.  An 
agent  authorized  generally  to  buy  chattels  without  limitation  as 
to  kind  or  quality,  may  undoubtedly  exercise  a  fair  and  reason- 
able discretion.  But  where  he  is  expressly  limited  to  the  pur- 
chase of  a  specific  thing,  he  cannot  purchase  another.  And  where 
he  is  instructed  to  buy  goods  only  of  a  given  quality  or  of  a 
certain  kind,  he  must  observe  the  limits  fixed.* 

S  368.  May  be  restricted  as  to  Persons  with  whom  to  deal. 
The  principal  may  lawfully  restrict  the  agent  as  to  the  persons 
with  whom  he  shall  deal  in  the  execution  of  his  authority,  and 
where  such  restrictions  are  known,  the  principal  cannot  be  bound 
by  a  purchase  of  other  persons  than  those  designated.' 

iRuffin*.  Mebane,  6  Ired.  (N.  0.)  »01ypha]it«.  McNair,  41  Barb.  (N. 

Eq.  507.  T.)  446. 

8  Owen  V.   Brockschmidt,   64    Mo.  •  See  ante,  §  288.     Davies  v.  Lyon, 

285.  86  Minn.  427,  31  N.  W.  Rep.  688. 

•Stothard  v.  Aull,  7  Mo.  318.  Teckbam  v.  Lyon,  4  McLean,  (IT. 

« Bryant  v.  Moore,  28  Me.  84,  45  8.  0.  C.)  45,  1  Myers  Fed.  Dec.  §451. 
▲m.  Dec.  96. 

227 


I  369.  THE   LAW   OF   AGENOT.  [Book   II. 

§  369.  May  make  Representations  as  to  Principal's  Credit. 
An  agent  expressly  authorized  to  purchase  goods  upon  his  prin 
cipal's  credit,  has  implied  authority  to  make  the  necessary  repre- 
sentations as  to  the  solvency  and  credit  of  his  principal,  without 
which  the  seller  would  not  sell  the  goods/  This  rule  is  based 
upon  the  principle  that  the  agent  has  implied  power  to  do  those 
things  which  are  necessary  and  usual  to  accomplish  the  object 
sought  to  be  attained,  and  must,  in  reason,  be  limited  by  that 
necessity.  Thus  if  the  principal's  credit  is  already  established,  or 
if  the  seller  does  not  require  a  representation,  the  principal  ought 
not  to  be  bound  by  the  mere  voluntary  and  gratuitous  represen- 
tations of  his  agent,  nor  in  any  event,  for  excessive  or  unusual 
pledges  of  responsibility.  He  cannot  pledge  his  principal's  credit 
for  his  own  personal  benefit.' 

§  370.  May  not  execute  negotiable  Paper.  Authority  to  bind 
his  principal  by  a  note  or  bill  for  the  price  of  the  goods  bought 
is  not  implied  from  mere  authority  to  purchase.  Such  an  agent, 
therefore,  has  no  authority  to  bind  his  principal  by  a  promissory 
note  or  bill  of  exchange,  unless  that  authority  be  expressly 
given,'  or  unless  the  giving  of  such  note  or  bill  is  indispensable 
to  the  discharge  of  the  duties  to  be  performed.* 

IV. 

OF   AGENT    AUTHORIZED   TO   RECEIVE    PAYMENT. 

§  371.  What  constitutes  such  Authority.  Authority  to  col- 
lect or  receive  payment  of  a  demand  may,  of  course,  be  conferred 
in  express  terms  and  with  more  or  less  of  discretionary  and  inci- 
dental power.  When  such  is  the  case,  the  rules  heretofore  laid 
down  are  sufficient  to  determine  its  construction. 

But  such  power  may  also  be  implied  from  circumstances,  and 
some  instances  of  this  nature  will  illustrate  the  extent  of  such 
implication. 

§  372.  When  implied  from  negotiating  the  Contract.  And  in 
the  first  place  it  may  be  noticed  that  the  mere  fact  that  the  agent 

'Hunter  e.  Hudson  River  Co.  20  456;  Webber  t».  Williams  College,  3» 
Barb.  (N.  Y.)  493.  Pick.  (Mass.)  302. 

«  Stephenson  «.  Grim,  100  Penn.  St.  *  Temple  v.  Pomroy.  4  Gray  (Mass^> 

^Q  128;  Bickford  v.  Menier,  107  N.  Y 

•Taber  v.  Cannon,  8  Mete.  (Mass.)      490. 

228 


Chap.  III.]  ^OONSTRUOTION    OF   AUTHORITIES.  §  374. 

was  employed  to  make  or  negotiate  the  contract  will  not,  as  of 
course,  confer  upon  him  the  incidental  authority  to  receive  a 
payment  which  may  become  due  upon  such  contract.* 

§  373.  When  implied  from  Possession  of  the  Securities.  Au- 
thority to  receive  payment  on  securities  may  often  be  implied 
from  their  possession  by  the  agent.  Thus  where  a  loan  upon  a 
note,  or  bond  and  mortgage  has  been  negotiated  for  the  principal 
through  an  agent,  and  the  security  is  left  in  the  agent's  possession 
and  control,  authority  to  make  payments  thereon  to  the  agent, 
may,  in  the  absence  of  directions  to  pay  it  elsewhere,  be  implied.* 
But  the  presumption  in  these  cases  is  founded  upon  the  agent's 
possession  of  the  securities,  and  it  ceases  when  the  securities 
are  withdrawn  by  the  creditor;  •  and  it  is  incumbent  upon 
the  debtor  to  assure  himself  on  each  occasion  when  a  payment 
is  made  that  they  still  continue  in  the  agent's  possession,  or  the 
payment  will  not  bind  the  principal,  unless  his  conduct  has  been 
such  as  to  estop  him  to  deny  the  agency.* 

But  authority  to  receive  payment  of  a  note  payable  to  the 
order  of  the  principal  and  not  endorsed  by  him,  cannot  be  pre- 
sumed from  the  mere  possession  by  the  assumed  agent.* 

This  rule  does  not  conflict  with  that  already  noticed  •  that  the 
mere  possession  of  the  bill  or  statement  of  an  account,  though  made 
upon  the  principal's  bill-head  and  in  his  handwriting,  does  not 
imply  authority  to  receive  payment  of  it.  Securities  for  the 
payment  of  money  stand  obviously  upon  other  ground. 

§  374.  When  implied  from  having  sold  the  Goods.  The  pre- 
sumption as  to  the  authority  to  receive  payment  arising  from  the 
fact  that  the  agent  sold  the  goods  for  which  the  demand  is  due, 

I  Thompson  v.  Elliott,  73  111.  221;  « Smith  t>.  Kidd,  68  N.  Y.  130,  23 

Smiths.  Hall,  19111.  App.  17;  Cooley  Am.    Rep.    157;    Brown  v.  Blyden- 

V.  Willard,  34  111.  68,  85  Am.   Dec.  burgh,  7N.  Y.  141;  Kellogg  o.  Smith, 

2U6.  26  N.  Y.  18;  Purdy  v.  Huntington, 

«  Haines  v.  Pohlmann,  25  N.  J.  Eq.  42  N.  Y.  339;   Williams  v.  Walker, 

179;  Williams  v.   Walker,   2  Sandf.  supra;  Hatfield  «.  Reynolds,  supra; 

(N.  Y.)  Ch.  825;  Hatfield©.  Reynolds,  VanKeuren  v.  Corkins,  supra;  Meg- 

84  Barb.  (N.  Y.)  612;  Van  Keuren  v.  ary  v.  Puntis.  supra;  Haines  v.  Pohl- 

Corkins,  4  Hun  (N.  Y.)  129.  mann,    supra;    Cooley    v.   Willard, 

3  Guilford   v.   Stacer,  53  Ga.   618;  supra;    Brewster  t».  Carnes,  103  N. 

Megary  v.  Puntis,  5  Sandf.  Sup.  Ct.  Y.  556,  9  North  E.  Rep.  323, 

(N.  Y.)  376;  Brown  v.  Blydenburgh,  »  Doubleday  t).  Kress,  50  N.  Y.  410, 

7  N.  Y.  141;  Cooley  v.   Willard,  34  10  Am.  Rep.  502. 

m.  68,  85  Am.  Dec.  296.  «  See  ante,  %  337. 

229 


§375. 


THE   LAW   OF   AGENCY. 


[Book  II. 


has  been  considered  in  treating  of  the  implied  powers  of  an  agent 
authorized  to  sell  goods.* 

§  375.  Can  receive  nothing  but  Money.  An  agent  authorized 
merely  to  collect  a  demand  or  to  receive  payment  of  a  debt, 
cannot  bind  his  principal  by  any  arrangement  short  of  an  actual 
collection  and  receipt  of  the  money.*  He  cannot,  therefore,  take 
in  payment  the  note  of  the  debtor  payable  either  to  himself  •  or  to 
his  principal ;  *  or  the  note  or  bond  of  himself,  •  or  of  a  third 
person  ;  •  or  a  draft  or  order  on  a  stranger, '  or  horses,  wheat, 
merchandise  or  other  property  of  any  kind  ;  *  nor  can  he  set  off  a 
claim  due  from  himself ;  •  or  take  property  for  his  own  use  in 
payment." 


i     I  See  ante,  §§  338,  et  seq. 

•Robinson  v.  Anderson,  108  Ind. 
152;  McCormick  «.  Wood,  &c.,  Co., 
72  Ind.  518;  O'Conner  v.  Arnold,  53 
Ind.  203:  Ward  v.  Smith,  7  Wall.  (U. 
S.)451;  Waterhousew.  Citizens'  Bank, 
25  La.  Ann.  77;  Rodgers  v.  Bass,  46 
Tex.  505;  Padfleld  v.  Green,  85  111. 
529;  Woodbury  v.  Lamed,  5  Minn. 
839;  McCulloch«.  McKee,  16  Penn. 
St.  289;  Aultman  v.  Lee,  43  Iowa, 
404;  Graydon  v.  Patterson,  13  Iowa, 
256;  McCarverr.  Nealey,  1  G.  Greene 
(Iowa)  360;  Kirk  v.  Hiatt,  2  Ind.  322; 
Coming®.  Strong,  llnd.  329;  Bridges 
V.  Garrett,  L.  R.  5  C.  P.  454;  Ward 
V.  Evans,  2  Ld.  Raym.  928;  Powell 
V.  Henry,  27  Ala.  612;  Taylor  v.  Rob- 
inson, 14  Cal.  396;  Mathews©.  Ham- 
ilton. 23  111.  470;  Robson®.  Watts.  11 
Tex  764;  British  «&  Amer.  Mtg.  Co. 
V.  Tibballs,   63  Iowa.  463;  Pitkin  v. 

Harris,  —  Mich.  ,  13  West.  Rep. 

719. 

scorning  v.  Strong,  1  Ind.  329;  Mc- 
Cullocht).  McKee,  16  Penn.  St.  289; 
Robinson  v.  Anderson,  106  Ind.  152. 

<  Miller  v.  Edmonston,  8  Blackf. 
(Ind.)  291. 

•  McCarver  v.  Nealey,  supra. 

•Langdonc.  Potter,  13  Mass.  819; 
Wilkinson  v.  Holloway,  7  Leigh  (Va.) 
277;  Smock  v.  Dade.  5  Rand.  (Va.) 
639;  Smith  v.  Lamberts,  7  Gratt.  (Va.) 


188;  Wiley  «.   Mahood,  10  W.  Va. 

206, 

T  McCarver  v.  Nealey,  1  G.  Greene, 
(Iowa)  360;  Drain  v.  Doggett.  41 
Iowa,  682;  Goldsborough  v.  Turner, 
67  N.  C.  403. 

•Rhine  v.  Blake.  59  Tex.  240; 
Wright  V.  Daily,  26  Tex.  730;  Kent  v. 
Ricards,  8  Md.  Ch.  892;  Harper  v. 
Harvey,  4  W.  Va.  539;  Kirk  e.  Hiatt, 
2  Ind.  322;  Aultman  v.  Lee,  43  Iowa, 
404;  Martin  v.  United  States.  2  T.  B. 
Monr.  (Ky.)  89,  15  Am.  Dec.  129; 
Reynolds  v.  Ferree,  86  111.  570;  Wil- 
liams V.  Johnston,  92  N.  C.  532,  58 
Am.  Rep.  428;  Pitkin  e.  Harris, 
—  Mich.  — ,  13  West  Rep.  719. 

•  Whitney  v.  State  Bank,  7  Wis. 
620;  Butts  v.  Newton,  29  Wis.  632; 
Stewart  v.  Woodward.  50  Vt.  78, 
28  Am.  Rep.  488;  Rodick  «. 
Coburn,  68  Me.  170;  Greenwood 
V.  Burns,  50  Mo.  52;  McCor- 
mick  V.  Keith.  8  Neb.  143;  Irwin 
V.  Workman.  3  Watts,  (Penn.)  357; 
Coffman  v.  Hampton,  2  Watts  & 
Serg.  (Penn.)  377;  Bridges  r.  Garrett, 
L.  R.,  5  C.  P.  454;  Sykes  v.  Giles.  5 
M.  &.  W.  645;  Scott  V.  Irving.  1  B. 
&  Ad.  605;  Catterall  v.  Hindle,  L,  P. 
1  C.  P.  187;  Hurley  v.  Watson,  — 
Mich.  — ,  13  West.  Rep.  643. 

10  Williams  v.  Johnston,  92  N.  0. 
532,  53  Am.  Rep.  428. 


230 


Chap.  III.]  OONSTRUOTION    OF    AUTHORITIES.  §  379. 

Where,  however,  the  agent  was  a  bank  of  deposit,  it  was  lield, 
while  recognizing  the  general  rule,  that  it  might  receive  in  pay- 
ment one  of  its  own  certificates  of  deposit.' 

And  so,  it  has  been  held,  that  an  agent  authorized  to  negotiate 
a  note  might  accept  in  place  of  money  a  certificate  of  deposit 
payable  on  demand,  issued  by  a  solvent  bank.* 

§  376.  No  Authority  to  release  or  compromise  the  Debt.  It 
follows,  as  a  corollary  of  the  rule  above  referred  to,  that  an  agent 
authorized  merely  to  collect  or  receive  payment,  has  no  implied 
power  to  release  the  debt,  in  whole  or  in  part,  or  to  compromise 
the  claim,  without  payment ;  *  nor  can  he  discharge  the  debtor 
and  assume  the  debt  himself.* 

§  377.  May  receive  part  Payment.  But  authority  to  collect 
or  receive  payment  of  the  whole  of  a  demand  implies  power  to 
collect  or  receive  a  part  payment  to  apply  upon  it.* 

§  378.  But  may  not  extend  Time.  But  although  he  is  thus 
authorized  to  receive  payment  in  part,  he  cannot  upon  such  pay- 
ment, or  in  consideration  of  it,  extend  the  time  of  payment  of 
the  balance.'  Nor  can  he  extend  the  time  without  express 
authority  in  any  case.' 

§  379.  Authority  to  receive  Interest  does  not  authorize 
Receipt  of  Principal.  The  payee  of  a  promissory  note,  payable 
to  her  order,  delivered  it,  unindorsed,  to  an  agent  with  authority 
to  receive  the  interest  thereon,  and  to  take  a  new  note  in  re- 
newal with  an  indorser.  The  maker  paid  the  principal  and  inter- 
est to  the  agent  who  embezzled  the  principal.  It  was  held  that 
the  payment  of  the  principal  was  unauthorized  and  did  not  dis- 
charge the  liability  of  the  maker  to  the  payee.* 

1  British,    «fec.,    Mortgage    Co.    «.  bers  v.   Miller,   7  "Watts  (Penn.)  63; 

Tibbals,  63  Iowa,  468.  Cooney  v.  Wade,  4  Humph.  (Tenn.) 

i  Poorman  v.  "Woodward,   21  How.  444,  40  Am.  Dec.  657. 

(U.  S.)  266,  1  Myers  Fed.  Dec.  §  61.  »  "Whelan  «.  Reilly.  61  Mo.  565. 

"Herring  v.  Hottendorf,  74  N.  C.  •  Hutchings  v.   Munger,   41  N.  Y. 

588;  McHany«.  Schenck,  88  111.  357;  155;   Ritcb   v.    Smith,  83  N.  Y.  637; 

Mel'vin  v.  Lamar  Ins.  Co.  80  111.  446;  Gerrisb  v.  Maher,  70  111.  470. 

Bairdu.  Randall,  58  Mich.  175;  Nolan  t  Chappell    v.    Raymond,     20    La. 

V.  Jackson,  16  111.  273;  "Whittington  Ann.  277;  Lockhart  ?j.  "Wyatt,  10  Ala. 

V.  Ross.  8  111.  App.  239.  231,  44  Am.  Dec.  481. 

*  Miles    V.    Richwine,    2     Rawle  •  Doubleday  v.  Kress,  50  N.  Y.  410, 

(Penn.)  199,  19  Am.  Dec.  638;  Cham-  10    Am.    Rep.    502;    to   same   eflfect 

231 


8  380.  THE   LAW    OF    AGENCY.  [Book   II. 

8  380.     Not  authorized  to  receive  before  due.     And   even 

though  an  agent  have  authority  to  receive  payment  of  an  obliga- 
tion, this  does  not  authorize  him  to  receive  it  before  it  is  due,'  in 
the  absence  of  a  known  usage  of  trade  or  course  of  business  in  a 
particular  employment,  or  habit  of  dealing  between  the  parties, 
extending  the  ordinary  reach  of  the  authority.* 

§  381.  No  Authority  to  take  Checks.  Being  authorized  to 
receive  nothing  but  money,  the  agent  had  no  implied  power  to 
accept  checks.'  Of  course  if  the  check  is  paid  it  is  a  good  pay- 
ment,* but  if  the  drawee  fails  to  pay,  the  agent  is  liable  for  a 
loss  resulting.* 

§  382.  If  authorized  to  take  Check  or  Note,  has  no  Authority 
to  indorse  and  collect  it.  But  even  if  authorized  to  accept 
checks  in  payment  of  the  demand,  the  agent  has  no  implied 
authority  to  indorse  them  and  collect  the  money  thereon,  and 
tlie  bank  paying  the  check  so  indorsed  is  still  liable  to  the  prin- 
cipal for  the  amount  thereof.' 

So  an  agent  authorized  to  accept  a  note  in  settlement  of  a  debt 
has  no  implied  power,  after  delivering  it  to  his  principal,  to 
receive  payment  of  the  note.' 

§  383.  Authority  to  collect  does  not  authorize  Sale.  Author- 
ity to  an  agent  to  collect  or  receive  payment  of  a  note  or  other 
demand,  does  not  imply  power  to  sell,  transfer,  or  otherwise  dis- 
pose of  it."     Nor  will  authority  to  an  agent  to  accept  a  note  in 

Smith  V.  Kldd,  68  N.  T.  130,  23  Am.  •  Graham  t».   United  States  Saving 

Rep.  157;  Brewster  v.  Games,  103  N.  Inst.  46  Mo.  186;  Thompson  v.  Bank, 

Y.  556,  9  North  E.  Rep.  323.  82  N.    Y.  1;    Robinson  v.  Chemical 

>  Smith  V.  Kidd,  68  N.  Y.  130,  23  Banlj.  86  N.  Y.  404;  Millard  v.  Re- 
Am.  Rep.  157;  Doubleday  v.  Kress,  public  Bank,  3  Mc Arthur  (D.  C.)  54; 
50  N.  Y.  410,  10  Am.  Rep.  502;  Fel-  McClure  v.  Evartson,  14  Lea  (Tenn.) 
lows  V.  Northrup,  39  N.  Y.  121;  495;  Holtsinger  v.  National,  &c. 
CampbeU  v.  Hassel,  1  Stark,  233;  Bank,  6  Abb.  (N.  Y.)  Pr.  (N.  S.)  292; 
Parnther  v.    Gaitskell,  13   East,  437.  Hogg  v.  Smith.  1  Taunt.  347. 

But  see  Bliss  v.  Cutter,  19  Barb.  (N.  '  Draper  v.  Rice,  56  Iowa,  114,  41 

Y.)  9.  Am.  Rep.  88. 

« Thompson  t.  Elliott,  73  111.  221;  •  Smith  ».  Johnson,   71   Mo.   882; 

Smith  V.  Hall,  19  111.  App.  17.  Texada  v.  Beaman,  6  La.  84,  25   Am, 

>  Hall  V.  Storrs,  7  Wis.  253.  Dec.  204;  Hardesty  v.  Newby,  28  Mo. 
*  Bridges  v.  Garrett,  L.  R.,  6  C.  P.  567,   75  Am.    Dec.    137;    Quigley  v. 

454.  Mexico  Southern  Bank,    80  Mo.  289, 

»  Harlan  v.  Ely,  68  Cal.  522.  50  Am.  Rep.  503. 

232 


Chap.   III.]  CONSTRUCTION    OF    AUTHORITIES.  §  386. 

Bettlement  of  a  demand,  imply  power  in  the  agent  to  afterward 
Bull  the  note  so  taken.' 

§  384.  No  Authority  to  deal  with  Funds  collected.  An 
agent  authorized  to  collect  and  transmit  funds  to  his  principal, 
has  no  implied  authority  to  enter  into  any  contract  concerning 
the  money  in  his  hands  or  to  exchange  it  for  other  money  with 
third  persons.  Such  conduct  may  be  treated  by  the  principal  as 
a  conversion  of  the  funds.' 

§  385.  May  give  Receipt  or  Discharge.  An  agent  anthorized 
to  collect  has  implied  authority  to  give  to  the  debtor  upon  pay- 
ment such  a  receipt  or  discharge  as  the  payment  entitles  him  to 
receive.  Thus  if  the  debt  be  evidenced  by  a  note  or  other  secur- 
ity the  agent,  upon  payment,  may  deliver  the  security  to  the 
debtor.* 

g  386.  Implies  Authority  to  sue— When.  While  mere  author- 
ity to  demand  or  receive  payment  of  a  debt  would  not  imply 
authority  to  sue  for  it,  yet  as  every  endowment  of  power  carries 
with  it  implied  authority  to  do  those  things  which  are  usual  and 
necessary  to  accomplish  the  object  sought  to  be  attained,  an  agent 
having  general  instructions  to  collect  may,  if  it  becomes  neces- 
sary, sue  upon  the  claim,  cause  execution  to  issue  and  direct  the 
seizure  of  property.*  He  has  however  no  implied  authority  to 
instruct  the  sheriff  to  levy  upon  any  particular  property.' 

Where  the  principal  is  a  non-resident,  an  attorney  instructed 
to  sue  upon  a  claim,  has  implied  power,  when  necessary,  to  in- 
demnify the  sheriff  against  the  results  of  the  seizure,*  as  other- 
wise the  attorney  would  not  be  able  to  accomplish  his  undertak- 
ing. 

For  the  same  reason,  if  the  exigencies  of  the  case  demand 

'  Ames  V.  Drew,  31  K  H.  475.  Hirshfleld    «.     Landman,    3    E.   D, 

»  Darling©.  Younker,   37  Ohio  St.  Smith  (N.  Y.)  203. 
487,  41  Am.  Rep.  532;  Kent  v.  Born-  »  Averill  t».   Williams,  4  Den.  (N. 

stein,   12  Allen  (Mass.)  342;   Green-  Y.)  295,  47  Am.  Dec.   252;  Welsh  «. 

wald  V.  Metcalf,  28  Iowa.  363.  Cochran,   63  N.  Y.  185;  Oestrich  ». 

3  PadfieldtJ.  Green.  85  111.  529.  Gilbert,  9  Hun  (N.  Y.)  244. 

*  Joyce  V.   Duplessis,  15  La.  Ann.  •  Clark  v.  Randall,  9   Wis.    135,  76 

242,  77   Am.    Dec.    185;   McMinn  v.  Am.  Dec.  252;   Schoregge  v.  Gordon, 

Richtmyer,  3  Hill  (N.  Y.)  236;  Bush  29  Minn.  367;  but  he  has  no  authority 

V.  Miller,  13  Barb.  (N.  Y.)  481;   Scott  to  indemnify  after  the  levy  and  sale 

V  Elmendorf,  13  Johns.  (N.  Y.)  317;  have  been  made.     Snow  «.  Hix,   64 

Vt.  478. 

233 


§  387.  THE    LAW    OF   AGENCY.  [Book  II. 

immediate  action,  he  may  make  the  necessary  aflSdavit,  cause  the 
issue  of  a  writ  of  attachment,  and  execute  in  his  principal's  name 
the  statutory  bond  therefor.*  But  an  attorney  has  not  necessarily 
the  autliority  to  indemnify  the  surety  upon  an  injunction  bond,* 
nor,  it  has  been  held,  to  execute  a  replevin  bond  in  the  name  of 
his  principal.* 

§  387.  May  sue  in  his  own  Name— When.  An  agent  author- 
ized to  collect  a  negotiable  note  or  bill  payable  to  bearer,*  or  in- 
dorsed in  blank*  for  the  purpose  of  collection,  may  sue  thereon 
in  his  own  name.  Not  so,  however,  if  the  note  be  payable  to 
order  and  is  not  indorsed. • 

Such  an  endorsement  and  delivery  for  the  purpose  of  collec- 
tion passes  the  legal  title  in  trust ;  and  the  trust  is  not  terminated 
by  the  principal's  death.' 

§  388.  May  employ  Counsel.  Authority  to  collect  not  only 
implies  authority  to  bring  suit,  but  where  suit  is  necessary,  the 
agent  may  employ  appropriate  counsel  to  conduct  it* 

V. 

OF  AGENT  AUTHOEIZED   TO   MAKE  AUD   INDORSE   NEGOTIABLE  PAPER. 

§389.  What  constitutes  such  Authority.  The  power  to  bind 
the  principal  by  the  making  or  indorsing  of  negotiable  paper  is 
an  important  one,  not  lightly  to  be  inferred.  Said  a  learned 
judge :  "  The  power  of  binding  by  promissory  negotiable  notes, 
can  be  conferred  only  by  the  direct  authority  of  the  party  to  be 
bound,  with  the  single  exception  where,  by  necessary  impli- 
cation, the  duties  to  be  performed  cannot  be  discharged  without 
the  exercise  of  such  a  power.     To  facilitate  the  business  of  note 

*  DePoret  v.  Gusman,  80  La.  Ann.  •  On-  v.  Lacey,  4  McLean  (U.  8.  C. 
Part  II,  930;  Fulton  v.  Brown,  10  La.  C.)  243;  Brigham  v.  Gurney,  1  Mich. 
Ann.  850;  Trowbridge©.  Weir,  Q  Id.  348;  Boyd  v.  Corbitt,  87  Mich.  52; 
706;  Alexander  v.  Burns,  Id.  704.  Hazewell  v.  Coursen,  45  N.  T.  Super. 

«  White  V.  Davidson,  8  Md.  169,  63  Ct.  22;  Moore  v.  Hall,  48  Mich,  143. 
Am.  Dec.  699.  •  Padfield  v.  Green,  85  111.  529. 

»  Narraguagus  Land  Proprietors  v.  ''  Moore  v.  Hall,  supra. 

Wentworth,  36  Me.  339.     See  gener-  •  Ryan    v.    Tudor,    31    Kans.  866; 

ally  the  Chapter  on  Attorneys  at  Law.  Davis  v.   Waterman,   10  Vt.  526,  83 

*  Hotchkiss  V.  Thompson,  1  Morris  Am.  Dec.  216. 
(Iowa)  150. 

234 


Chap.  IIL]  OONSTfiUCTION    OF   AUTHORITIES.  §  391. 

making  and  thns  affect  the  interest  and  estates  of  third  persons 
to  an  indefinite  amount,  is  not  within  the  object  and  intent  of  the 
law  regulating  the  common  duties  of  principal  and  agent; 
neither  is  the  power  to  be  implied  because  occasionally  an  instance 
occurs  in  which  a  note  so  made  should  in  equity  be  paid."  * 

§  390.  Same  Subject— Authority  strictly  construed.  Such  a 
power  will  be  strictly  construed,  and  the  authority  will  be  held  to 
be  conferred  only  in  those  cases  where  it  is  clearly  given,  or  where 
it  is  a  manifestly  necessary  and  customary  incident  of  the  charac- 
ter bestowed  upon  the  agent.* 

§391.  "When  Authority  implied.  As  has  been  seen,  general 
words  made  use  of  in  conferring  authority  must  be  limited  to 
the  legitimate  scope  of  the  business  in  the  transaction  of  which 
it  is  to  be  exercised,  and  authority  to  bind  the  principal  by  negoti- 
able paper  will  only  be  implied  where  it  is  practically  indispens- 
able to  accomplish  the  object.* 

Thus  an  authority  to  an  agent  "  to  accomplish  a  complete  ad- 
jnstment "  of  all  the  principal's  concerns  in  a  certain  State  does 
not  authorize  him  to  bind  the  principal  by  a  promissory  note ;  * 
nor  will  authority  given  by  a  farmer  to  his  agent  to  sign  his  name 
in  tho  general  transaction  of  his  business,  confer  power  upon  the 
agent  to  sign  the  principal's  name  to  a  note ;  •  nor  will  authority 
to  settle  a  controversy  of  itself  imply  power  to  bind  the  princi- 
pal by  a  note  given  in  settlement.* 

So  an  agent  authorized  to  attend  to  and  manage  a  grocery  and 
provision  store  ; '  an  agent  employed  in  the  manufacture  of  car- 
riages ;  *  a  mere  clerk  employed  in  a  merchant's  store;*  an  agent 

'  Hubbard,  J.  in  Paige  v.  Stone,  10  •  Bickford  v.   Menier,   107   N.  T. 

Mete.  (Mass.)  160.  43  Am.  Dec.  420.  390. 

•  Turner  v.    Keller,  66   K  Y.    66;  *  Rossiter  t;.  Rossiter,  8  Wend.    (N, 

Craighead  c.  Paterson.  72  N.  Y.  279;  Y.)  494,  24  Am.  Dec.  62. 

28  Am.  Rep.  150;  Brantley  v.  South-  «  Brantley  c.  Southern  Lifelna.  Co. 

ern  Life  Ins.  Co.  53  Ala.  554;  Hills  v.  53  Ala.  554. 

Uptou.  24  La.  Aun.  427;  Webber  v.  »  Hills  v.  Upton,  24  La.  Ann.  427. 

Williams   College.    23   Pick.    (Mass.)  '  Smith  t).  Gibson,  6  Blackf.    (Ind.) 

802;  S'ainback  v.  Read.  11  Gratt.  (Va.)  869;  Terry  v.  Fargo,  10  Johns.  (N.  Y.) 

281,    62  Am.    Dec.  648;    Rossiter  v.  114;  Perkins  e.  Boothby,  71  Me.  91. 

Rossiter,    8   Wend.   (N.    Y.)  494,  24  »  Paige  t>.  Stone,    10    Mete.  (Mass.) 

Am.  Dec.  62;  Avery  v.  Lauve,   1  La.  160,  43  Am.  Dec.  420. 

Ann.  457;  Nugent   v.   Hickey,  2  Id.  •  Kerns  v.  Piper,   4  Watts  (Penn.) 

358;  Duconge  v.  Porgay,  15  Id.  37.  222;  Terry  e.  Fargo,  tupra. 

235 


§392. 


THE    LAW    OF    AGENCY. 


[Book  II. 


authorized  to  manage  his  principal's  farm  ; '  an  agent  authorized 
to  superintend  his  principal's  mine;'  and  an  agent  employed 
generally  to  manage  his  principal's  business;'  has  no  implied 
power  to  bind  his  principal  by  the  execution  of  negotiable  paper. 

An  agent  authorized  to  buy  goods  and  pay  for  them,  is  not 
thereby  authorized  to  give  his  principal's  note,  or  to  accept  a  bill 
of  exchange  drawn  for  the  amount* 

But  authority  to  discount  bills  confers  power  to  indorse  the 
same  when  necessary  to  accomplish  the  purpose.' 

§  392.  Must  be  conja.neci  to  Principal's  Business.  Authority 
to  make  or  indorse  negotiable  paper  will  be  confined  to  the  mak- 
ing or  indorsing  of  such  paper  in  the  legitimate  business  of  the 
principal  or  for  his  benefit.  Such  an  agent  cannot,  therefore,  bind 
his  principal  by  making  or  indorsing  notes  for  his  own  benefit  or 
the  benefit  of  third  persons.' 

8  393.  Execution  must  be  confined  to  Limits  specified.  Par- 
ties dealing  with  an  agent  assuming  to  be  authorized  to  draw, 
accept,  or  indorse  negotiable  paper,  must  see  to  it  that  his 
authority  is  adequate,  and  both  they  and  the  agent  must  keep 


»  Davidson  v.  Stanley,  2  M.  «&  G. 
721. 

»  New  York  Iron  Mine  v.  Negaunee 
Bank,  39  Mich.  644;  McCullough  v. 
Moss,  6  Den.  (N.  T.)  567;  Sewanee 
Mining  Co.  «.  McCall,  3  Head  (Tenn.) 

619. 

3  Perkins  v.  Boothby,  ««pra;  New 
York  Iron  Mine  v.  Negaunee  Bank, 
guprft. 

*  Brown  t».  Parker,  7  Allen  (Mass.) 
839;  Taber  e.  Cannon,  8  Mete.  (Mass.) 
456;  Webber  v.  Williams  College,  23 
Pick.  (Mass.)  303;  Gould  v.  Norfolk 
Lead  Co.  9  Cush.  (Mass.)  388;  Emer- 
son V.  Providence  Mnfg.  Co.  12  Mass. 
237,  7  Am.  Dec.  66. 

5  Merchants'  Bank  v.  Central  Bank, 
1  Ga.  418,  44  Am.  Dec.  665. 

•  North  River  Bank  v.  Aymer,  8 
Hill  (N.  Y.)  262;  Stainer  v.  Tysen, 
Id.  279;  Stainback  v.  Read,  11  Gratt. 
(Va.)  281,  62  Am.  Dec.  648;  Camden 
Safe  Dep.  Co,  v.  Abbott,  44  N.  J.  L. 


257;  Duncan  «.  Gilbert,  29  Id.  521; 
Hamilton  v.  Vought,  34  Id.  187;  Gu- 
lick  V.  Grover,  33  Id.  463;  Bird  v. 
Daggett,  97  Mass.  494;  Wallace  v. 
Branch  Bank,  1  Ala.  565;  Brantley  v. 
Southern  Life  Ins.  Co.,  53  Ala.  554; 
Citizens'  Savings  Bank  v.  Hart,  32 
La.  Ann.  22;  Odiorne  v.  Maxcy,  13 
Mass.  178.  Even  if  authorized  to 
indorse,  he  cannot  indorse  to  himself. 
Englehart  v.  Peoria  Plow  Co.  21  Neb. 
41,  31  N.  W.  Rep.  391.  A  power  of 
attorney  to  execute,  sign,  draw  and 
endorse  in  the  name  of  the  principal, 
will  not  imply  authority  to  use  the 
principal's  name  in  joint  transactions 
with  other  persons  and  for  their  ben- 
efit. Mechanics'  Bank  v.  Shaumburg, 
88  Mo.  228.  An  agent  authorized 
to  sign  his  principal's  name  to  "  any 
paper"  is  not  justified  in  signing 
paper  outside  of  the  principal's  busi- 
ness. Camden  Safe  Deposit  Co.  •. 
Abbott,  supra. 

36 


Chap.  III.]  CONSTRUCTION    OF   AUTHORITIES.  §  3'J3. 

strictly  within  the  limits  fixed  to  the  agent's  authority  or  the 
principal  will  not  be  bound.  Thus  authority  to  draw  and  discount 
a  note  for  a  given  purpose,  implies  no  power  to  draw  and  discount 
one  for  another  and  different  purpose ; '  authority  to  bind  the 
principal  for  a  given  sum  will  not  authorize  the  binding  for  a 
greater  sum  ;  *  authority  to  make  deposits,  draw,  sign  and  indorse 
notes,  checks  and  bills  of  exchange,  in  the  course  of  business  with 
a  particular  bank,  will  not  imply  power  to  bind  the  principal  l)y 
giving  notes  for  borrowed  money  executed  in  a  business  in  which 
the  principal  never  engaged,  and  with  other  persons  than  the 
bank ;  •  authority  to  do  all  things  at  a  particular  bank,  which  the 
principal  could  do  if  present,  will  not  authorize  the  agent  to  draw 
money  of  his  principal  from  another  bank  where  the  principal 
has  an  account ;  *  authority  to  draw  checks  and  notes  payable  at 
any  bank  where  the  principal  has  an  account,  will  not  justify 
making  a  note  payable  at  a  bank  where  the  principal  has  no 
account ;  •  authority  to  draw  on  a  principal's  funds  will  not  em- 
power the  agent  to  draw  upon  the  principal's  credit ;  •  authority 
to  draw  checks  on  a  bank  for  property  purchased  by  the  agent, 
implies  no  power  to  borrow  money  ; ''  authority  to  execute  notes 
gives  no  power  to  renew  them  ; "  authority  to  make  a  note  for  a 
given  time  will  not  authorize  the  making  of  a  note  payable  in  a 
different  time,*  unless  from  the  circumstances  it  is  evident  that  the 
principal  did  not  intend  to  fix  an  exact  limit  and  the  variance  be 
not  great; '•  authority  to  issue  bonds  does  not  autliorize  the 
issuing  of  notes ;  "  authority  to  draw  a  bill  does  not  of  itself 
imply  power  to  indorse,  "  or  to  accept  one ;  "  nor  does  authority 

1  Callender  v.  Golaan,  27  La.  Ann.  »  Mordhurst  v.  Boies,  24  Iowa,  99. 

311;  Nixon  v.  Palmer,  8  N.  Y.  398;  '  Ward  v.    Bank  of    Kentucky,  7 

Hortons   v.   Townes,  6  Leigh  (Va.)  T.  B.  Mon.  (Ky.)  93. 

59  •  Batty  v.  Carswell,  2   Johns.  (N. 

«Blackwell  ».   Ketcham,    53  Ind.  T.)48;  Tate  ».  Evans,  7  Mo.  419. 

184;  King  v.  Sparks,  77  Ga.  285,  4  "Adams®.  Flanagan,  36  Vt.  400; 

Am.  St.  Rep.  85;  Batty  «.  Carswell,  Bank  «.  McWillie,  4  McCord,  (8.  C.) 

2  Johns.  (N.  Y.)  48.  438. 

» Citizens'  Savings  Bank.   v.  Hart,  "  School    Directors   v.   Sippy,    54 

33  La.  Ann.  22.  111.  287;  Bank  of  Deer  Lodge  v.  Hope 

♦  Sims  V.  United    States  Trust  Co.  Mining  Co.,  3  Montana,  146,  35  Am. 

—  N.  Y.— ,  9  N.  E.  Rep.  605.  Rep.  458. 

5  Craighead  v.  Peterson,  72  N.  Y.  •»  Robinson  e.   Yarrow,   7  Taunt, 

279,  28  Am.  Rep.  150.  455;  Murray  v.    East  India  Co.,  5  B. 

«  Breed  v.  First  Nat.  Bank,  4  Colo.  &  Aid.  204. 

481.  '•  Atwood  «.  Munnings,  7  B.  &  0. 

237 


§391. 


THE  LAW  OF  AGENCY.  [Book  LL 


to  indorse  empower  the  agent  to  accept  a  bill,  or  make  a  joint 
and  several  note  ;  *  authority  to  draw  bills  of  exchange  payable 
on  time  or  at  sight  does  not  imply  authority  to  draw  post-dated 
bills;'  authority  to  execute  a  note  does  not  of  itself  imply 
authority  to  pay  it  when  due,  or  to  receive  demand  of  payment ;  * 
or  to  receive  notice  of  dishonor;*  and  authority  to  draw  on  A 
at  Portland,  or  B  at  New  York,  does  not  authorize  the  agent  to 
draw  on  A  payable  at  New  York.' 

Authority  to  sign  the  principal's  name  to  promissory  notes  will 
bo  limited  to  notes  drawn  in  the  usual  form,  and  will  not  author- 
ize the  execution  of  a  note  containing  a  provision  that  if  not  paid 
at  maturity,  an  additional  sum  of  ten  per  cent,  would  be  paid.* 
Authority  to  an  agent  to  draw  a  bill  in  the  principal's  name  will 
not  authorize  a  bill  drawn  in  the  joint  names  of  the  principal 
and  the  agent ;  nor  will  authority  to  draw  a  bill,  authorize  an 
agent  to  contract  to  indemnify  the  acceptor  against  the  conse- 
quences of  his  acceptance  ;  ^  nor  will  joint  authority  from  several 
persons  to  indorse  a  bill  in  their  names  jointly,  authorize  several 
and  successive  indorsements. '  Nor  will  authority  to  sign  as 
surety  authorize  the  signing  as  principal.*  Authority  to  draw 
checks  upon  a  certain  bank  will  not  justify  the  agent  in  ovqt- 
drawing  his  principal's  account." 

S  394:.  Negotiable  Paper  or  Deeds  delivered  to  Agent  in  Blank. 
A  principal  who  delivers  to  his  agent  negotiable  paper  executed 
in  blank,  to  be  filled  out  by  the  agent  according  to  certain 
instructions,  will  be  liable  upon  the  paper  as  the  agent  may  fill 
it  out,  to  one  who  takes  it  in  good  faith,  for  value  and  without 
notice,  althongh  the  agent  may  have  violated  his  instructions." 

278:  Sewanee  Mining  Co.  »,  McCall,  «  First  National   Bank  •.Gay,  63 

3  Head(Tenu.)   621;  Bank    ».    Hope  Mo.  33,  21  Am.  Rep.  430. 

Min.  Co.  supra.  ^  Stainback  «.  Read,  11  Qratt.(Va.) 

»  Cuyler  v.  Merrifleld,   6  Hun  (N.  281,  63  Am.  Dec.  648. 

Y  \  559  *  Bank  of  United  States  •.  Beirne, 

»  New  York  Iron  Mine  v.  Citizens'  1  Gratt.  (Va.)  234.  43  Am.  Dec.  651. 

Bank,  44    Mich.  344;  Forster  v.  Mac-  •  Farmington      Savings    Bank    •. 

reth,  L  R.,  2  Exc^li.  163.  Buzzell,  61  N.  H.  612. 

»  Luning  v.  Wise,  64  Cal.  410.  »•  Union  Bank  v.   Mott,  89  Barb. 

♦  Bank  of  Mobile  v.  King,  9  Ala.  (N.  Y.)  180. 

279  "  Davis  ».  Lee,  26  Miss.  505,  59  Am. 

5  Lanusse  v.  Barker,  3  Wheat  (U.  Dec.    267;    Johnson    v.   Blasdale,    1 

g  )  101.  Smedes  &  M.  (Miss.)  20,  40  Am.  Dec. 

238 


Chap,  in.]  OONBTBUOTION    OF   AUTHORITIES.  §  39-1. 

But  if  the  third  person  had  notice  of  the  instructiona  or  if  hei 
does  not  take  the  paper  for  value,  he  will  not  be  protected." 
Whether  mere  knowledge  that  the  paper  was  delivered  to  thei 
agent  in  blank  is  enough  to  put  third  persons  upon  inquiry  as  toi 
his  instructions,  is  a  question  upon  which  the  authorities  differ, 
but  the  better  opinion  seems  to  be  that  it  is  not.* 

And  the  same  general  principle  applies  to  deeds  which  have 
been  delivered  in  blank  to  an  agent  with  authority  to  fill  the 
blanks.  "  Although  there  is  some  conflict  in  the  decisions  "  says 
Lake,  C.  J.  in  a  recent  case, "  the  current  of  the  more  modern  of 
them  plainly  is  to  the  effect  that  if  the  owner  of  land  delivers  to 
his  agent  a  deed  thereof  executed  in  blank  as  to  the  grantee,  with 
authority,  either  express  or  implied,  to  insert  the  name  of  a  pur- 
chaser and  perfect  the  conveyance,  and  he  does  so  in  good  faith, 
the  title  will  be  conveyed.*  And  it  follows  from  this  that  if  the 
ao-ent  with  such  authority  makes  a  fraudulent  use  of  the  deed 
entrusted  to  him,  as  by  inserting  the  name  of  a  grantee  and  deliv- 
ering it  to  him  without  consideration,  and  for  his  own  benefit, 
such  grantee  can  convey  a  good  title  to  an  innocent  purchaser."  * 

85;  Putnam  v.  Sullivan,  4  Mass.  45,  3  (U.  S.)  24;  Van  Etta  •.  Evenson,  28 

Am.  Dec.  206;  Roberts  t».  Adams,  8  Wis.  83,  9  Am.  Rep.  486;  Schintz  v. 

Port.  (Ala.)  297,  S3  Am.  Dec.  291;  McManamy,  33  Wis.   299;    Field  «. 

Hall    e.    Bank    of  Commonwealth,  Stagg,  52  Mo.  634,  14  Am.  Rep.  435; 

5     Dana      (Ky.)      258,       30      Am,  Swartz  v.  Ballou,  47  Iowa,   188,  29 

Dec.  685;  Holland  r.  Hatch,  11  Ind.  Am.  Rep.  470.     To  same  effect  ae« 

497,  71  Am.   Dec.   363;  Gillaspie  v.  also  Phelps  e.  Sullivan,  140  Mass.  36, 

Kelley,    41   Ind.    161;    Blackwell    •.  64  Am.  Rep.  442;  Campbell  t).  Smith, 

Ketcham,    53    Ind.   186;    Snyder  •.  71  N.  Y.  26,  27  Am.  Rep.  5;  Vose  v. 

Van  Doren,    46  Wis.   610;  Bank  of  Dolan,  108  Mass.  155,  11  Am.  Rep. 

Pittsburgh  V.  Neal,  22  How.  (U.  8.)  831. 
107.  Contra,  Upton  e.  Archer,  41   CaL 

»  Davidson  v.  Lanier,  4  Wall.  (U.  85,  10  Am.  Rep.  266;  Preston  e.  Hull, 

S.)  456;  Johnson  v.  Blasdale,  »upra.  23  Gratt.  (Va.)  600,  14  Am.  Rep,  153; 

Where  the  note  bears  evidence  on  its  Williams  v.  Crutcher,  5  How.  (Miss.) 

face  that  it  is  being  delivered  contrary  71,35  Am.  Dec.  422;    Davenport  e. 

to  directions,  it  cannot  be  enforced  Sleight,  2  Dev.  &  Bat.  L.  (N.  C.)  381, 

by  person  to  whom  it  is  so  delivered,  31  Am.  Dec.  420;  Bland  «.  O'Hagan, 

Mills*.  Williams,  16  S.  C.  593.  64  N.  C.  472. 

a  See  Daniel  Neg.  Inst.  §  147.  *  In  Garland  «.  Wells,  15  Neb.  29a 

•Citing  Drury  t>.  Foster,  2  Wall. 

239 


§  395.  THE    LAW    OF    AGENCY.  [Book  II. 

YL 

OF   AGENT   AUTHORIZED   TO   MANAGE   BITSINESS. 

S  395.     Extent  of  Authority  depends  on  Nature  of  Business. 

The  extent  of  the  implied  or  incidental  power  of  an  agent  who 
has  general  authority  to  manage  his  principal's  business,  must  be 
dependent  largely  upon  the  nature  of  the  business  and  the  degree 
to  which  it  is  placed  under  the  agent's  control.  Thus  it  is  ob- 
vious that  the  implied  powers  of  the  general  manager  of  a  great 
continental  insurance  company,  while  they  might  be  of  the  same 
kind,  would  differ  greatly  in  degree  from  those  of  a  clerk  in  an 
inland  store  who  is  given  general  control  of  the  business  during 
his  principal's  absence. 

In  general  terms  it  may  be  said  that  such  an  agent  has  implied 
power  to  do  those  things  which  are  necessary  and  proper  to  be 
done  in  carrying  out  the  business  in  its  usual  and  accustomed 
way,  and  which  the  principal  could  and  would  usually  do  in  like 
cases  if  present.* 

S  396.  When  Power  implied  to  pledge  Principal's  Credit. 
An  agent  employed  to  manage  his  principal's  store  has  implied 
authority,  for  the  keeping  up  of  the  stock,  to  make  reasonable 
and  proper  purchases  of  goods  upon  his  principal's  account  on 
such  terms  as  to  credit  and  time  of  payment  as  are  cus- 
tomary in  the  sale  of  such  goods  in  like  cases.'  So  an  agent  au- 
thorized to  take  charge  of  and  manage  his  principal's  hotel  and 
to  purchase  the  necessary  supplies,  may  buy  suitable  and  appro- 
priate goods  for  use  in  the  hotel  upon  his  principal's  credit ;'  but 
he  has  no  implied  power  to  bind  his  principal  for  the  safe  keep- 
ing and  return  of  carriages  furnished  by  a  livery-stable  keeper 
for  use  by  guests  of  the  hotel.*  So  though  an  agent  authorized 
to  manage  a  plantation  would  have  implied  power  to  purchase, 
on  his  principal's  account,  the  necessary  supplies  therefor,"  he 
would  have  no  such  authority  to  pledge  the  credit  of  his  princi- 
pal for  supplies  furnished  to  the  "hands"  engaged  upon  the 

'German  Fire  Ins.  Co.  ••  Grunert,  Cummingse.  Sargent,  9 Mete  (Mass.) 

112  111.  68.  1'72. 

« Banner  Tobacco  Co.  t>.  Jenison,  *  Brockway  t».  Mullin.  46  N.  J.  L. 

48  Mich  459;  Schmidt  e.  Sandel,  80  448,  50  Am.  Rep.  442. 

La.  Ann.  353.  'But   see  Meyer   •.    Baldwin.   52 

•Beecher  v.  Venn,   85  Mich.    466;  Miss.  263. 

240 


Chap.  III.]  CONSTRUCTION   OF    ATJTHOEnTES.  §  396. 

plantation.'  Where  it  is  customary  in  the  business  for  the  em- 
ployer to  board  the  workmen  employed,  such  an  agent  may  law- 
fully contract  in  his  principal's  name  for  the  board  of  the  men 
employed  by  him.* 

The  general  manager  of  a  raining  company  has  implied  power 
to  buy  and  sell  personal  property  for  use  about  the  premises,* 
but  such  an  agent  has  no  implied  power  to  bind  his  principal  for 
debts  of  a  third  person  ;*  nor  has  an  agent  authorized  to  carry  on 
his  principal's  farm  any  implied  power  to  permit  a  creditor  to 
cut,  remove  and  sell  on  execution,  grass  growing  on  the  farm.* 

A  railway  station  agent  authorized  to  receive  and  forward 
freight  has  implied  authority  to  contract  to  furnish  a  certain 
number  of  cattle  cars  at  his  station  on  a  specified  day,  the  ship- 
per being  ignorant  of  any  limitation  upon  his  powers;*  but  such 
an  agent''  or  a  yardmaster'  or  a  conductor  •  has  no  implied  au- 
thority to  bind  the  company  by  the  employment  of  a  physician 
or  surgeon  to  attend  one  of  the  men,  employed  under  him  in  the 
service  of  the  company,  who  had  been  injured. 

Upon  the  question  of  the  authority  of  a  general  superintendent 
of  a  railroad  company  to  employ  such  a  physician,  the  Supreme 
Court  of  Michigan  was  evenly  divided."  As  to  the  authority  of 
the  president  in  such  cases,  see  cases  cited  in  the  note." 

A  surgeon  employed  by  a  railroad  company  to  attend  upon 
persons  injured  by  an  accident,  has  no  implied  authority  to  bind 
the   company   by   a  promise   to   pay    for   meals    and   services 

«  Carter  v.  Burnham,  31  Ark.  213.  the  employment  and  does  not  object, 

*Burleyt).  Kitchell,   20  N.   J.   L.  but  promises  to  pay  the  physician. 

805.  Cairo,    &c.  Ry  Co.   v.   Mahoney,  83 

•Scudder   «.   Anderson,  64  Mich.  111.  73,  25  Am.  Rep.  299. 

122.  8  Marquette  &   Ontonagon    R.   R. 

«Ruppe  V.  Edwards,  52  Mich.  411;  Co.  v.  Taft,  28  Mich.  289. 

New  York  Iron  Mine  v.   Negaunee  'Tucker  v.  St.  Louis,  &c.  RyCo., 

Bank,  89  Mich.  644;  Clayton  v.  Mar-  supra.     The  conductor  of  a  freight 

tin,  81  Ark.  217;  Meyer  c.  Baldwin,  train  may  employ  a  person  to  take 

supra.  the    place     of     a     sick    brakeman. 

s Benjamin©.  Benjamin,  15  Conn.  Georgia  Pac.    R.   Co.   v.  Probst,   — 

847,  39  Am.  Dec.  384.  Ala.  — ,  4  South  Rep.  711. 

•  Harrison  v.  Missouri  Pacific  Ry  ">  Marquette  &  Ontonagon  R.  R  Co. 

Co.  74  Mo.  364,  41  Am.  Rep.  318.  «.  Taft,  supra. 

'Tucker  v.  St.  Louis,  &c.  Ry  Co.,  »» Canney  c.  Railroad  Co.  63  Cal. 

64  Mo.  177.     But  such  an  employ-  501 ;   Trenor  v.  Railroad  Co.  60  CaL 

ment  will  be  deemed  to  be  ratified  223. 
where  the  superintendent  knows  of 

16  241 


§  397.  THE   LAW   OF   AGENOT.  [Book  II. 

furnished  to  those  who  were  in  attendance  upon  a  partj  in- 
jured.* 

g  397.  Implied  Power  to  sell  Product  of  Business.  An  agent 
authorized  to  manage  his  principal's  plantation  may  sell  the 
product  of  it  and  collect  the  money  therefor;*  but  he  has  no  im- 
plied power  to  agree  to  exchange  such  product  for  that  of  an- 
other plantation.'  An  agent  having  general  authority  to  manage 
the  business  of  a  lumber  company  may  not  only  employ  the 
necessary  workmen,  but  he  may,  if  it  become  necessary,  make  a 
Bale  of  lumber  to  pay  them.* 

§  398.  None  to  bind  by  negotiable  InstrTiment.  An  agent 
having  general  authority  to  manage  his  principal's  business,  has, 
by  virtue  of  his  employment,  no  implied  authority  to  bind  his 
principal  by  making,  accepting  or  indorsing  negotiable  paper. 
Such  an  authority  must  be  expressly  conferred  or  be  necessarily 
implied  from  the  peculiar  circumstances  of  each  particular  case. 
It  may  undoubtedly  be  conferred  and  by  implication,  but  it  will 
not  be  presumed  from  the  mere  appointment  as  general  agent.' 

§  399.  When  may  borrow  Money.  In  a  recent  case  in  the 
Court  of  Appeals  of  New  York,  it  is  said,  "  If  the  transaction  of 
business  absolutely  required  the  exercise  of  the  power  to  borrow 
money  in  order  to  carry  it  on,  then  that  power  was  impliedly 
conferred  as  an  incident  to  the  employment ;  but  it  does  not 
afford  a  sufficient  ground  for  the  inference  of  such  a  power,  to 
eay  the  act  proposed  was  convenient  or  advantageous  or  more 
effectual  in  the  transaction  of  the  business  provided  for,  but  it 
must  be  practically  indispensable  to  the  execution  of  the  duties 
really  delegated  in  order  to  justify  its  inference  from  the  original 
employment."* 

» Bushnell  v.  Chicago,  &c.  Ry  Co.,  bind  it  by  making  promissory  notes 
69  Iowa,  620.  in  its  name.    New  York  Iron  Mine  v. 
»  Sentell  c.  Kennedy,  29  La.  Ann.  Negaunee  Bank,  supra;  McCuUough 
(,79.  «.  Moss,  5  Denio  (N.   T.)  567;    nor 
*BaU  V.  Bender,  23  La.  Ann.  493.  may  he  bind  it  by  acceptance  of  a 
*  Taylor  v.  Labeaume,  17  Mo.  338.  bill  of  exchange  even  to  avoid  the 
•New  York  Iron  Mine  e.  Negau-  suspension  of  work  of  great  import- 
nee  Bank,  39  Mich.  644;   Perkins  c.  ance.     Sewanee  Mining  Co.  v.  Mo- 
Boothby,  71  Me.  91;  Rossiter  c.  Ross-  Call,  8  Head  (Tenn.)  619. 
iter,  8  Wend.  (N.   Y.)  494,   24  Am.  « Bickford  «.  Menier,  107  N.  Y.  490, 
Dec.  63.    Thus  the  general  managing  26  Cent.  L.  Jour.  236.     Authority  to 
agent  of  a  mining  company  may  not  wind  up  a  business  does  not  author- 

242 


Chap.  III.]  coNSTRUonoN  of  authorities.  §  405. 

§  400.  May  not  make  Accommodation  Paper.  A  fortiori 
has  he  no  power  to  bind  his  principal  by  making,  accepting  or 
indorsing  negotiable  paper  for  the  benefit  of  himself  or  third 
persons.*  Nor  can  he  pledge  his  principal's  credit  for  the  debt 
of  third  persons.* 

§  401.  May  not  pledge  or  mortgage  the  Property  of  his  Prin- 
cipal. An  agent  authorized  to  manage  and  carry  on  his  princi- 
pal's business  has  thereby  no  implied  authority  to  pledge  or  mort- 
gage the  property  in  his  possession.  As  is  tersely  said  by  a  learn- 
ed judge :  "  It  is  not  carrying  on  the  business  of  the  company  to 
pledge  or  mortgage  the  machinery  used  by  the  company  and 
thereby  suspend  its  operations ;  or  place  them  at  the  will  and 
pleasure  of  a  mortgagee." ' 

§  402.  May  not  seU  Principal's  Land.  Neither  has  such  an 
agent  implied  power  to  sell  his  principal's  land,  even  though 
it  may  have  been  acquired  by  him  in  the  execution  of  the 
agency.* 

§  403.  May  not  embark  in  new  and  different  Business. 
Authority  to  carry  on  the  principal's  business  already  establish- 
ed, implies  no  authority  in  the  agent  to  embark  in  a  new  and 
different  business,  or  to  attempt  to  use  his  principal's  funds  or 
credit  in  such  a  business.' 

§  404.  May  not  seU  the  Business.  So  general  authority  to 
manage  a  business  implies  no  power  to  sell  it* 

VIL 

OP  AGENT  AUTHORIZED  TO    SETILBi 

§  405.  May  not  submit  to  Arbitration.  Authority  conferred 
upon  an  agent  to  settle  a  dispute  or  demand,  will  be  presumed  to 
be  so  conferred  in  reliance  upon  the  judgment  and  discretion  of 

ize  the  agent  to  borrow  money.  Smith  <  Smith   «.    Stephenson,  45  Iowa, 

«.  McGregor,  96  N.  0.  101.  645 ;   Watson  ».   Hopkins,   27  Tex. 

»  Qulick  t>.  Grover,  83  N.  J.  L.  463,  637. 

97  Am.  Dec.  738;  Bank  t>.  Johnson,  'Campbell  «.  Hastings,  29  Ark.  513. 

3  Rich.  (8.  C.)  43.  •  Holbrook  e.  Oberne,  66  Iowa,  824; 

»Ruppe  t».  Edwards,  53  Mich.  411.  Vescelius  v.  Martin,  —  Colo.  — ,  18 

*  Despatch  Line  e.   Bellamy  Mnfg  Pac.  Rep.  338. 
Co.  13  N.  H.  205,  87  Am.  Dec  203. 

243 


§  406.  THE   LAW   OF    AGENCY.  [Book    II. 

the  agent,  and  unless  there  be  clear  evidence  of  a  contrary  inten- 
tion, the  agent  will  not  be  permitted  to  delegate  the  trust  to  an- 
other. He  cannot  therefore  submit  the  dispute  or  demand  to  the 
judgment  of  arbitrators,  and  if  he  does  so,  the  award  will  not  be 
binding  upon  the  principal.'  Like  other  unauthorized  acts,  the 
submission  may  of  course  be  ratified  by  the  principal,  and  such  a 
ratification  will  be  presumed  where,  for  example,  with  full 
knowledge  of  the  facts,  the  principal  accepts  the  award. 

8  406.  May  not  assign  the  Demand.  For  the  same  reasons 
an  agent  employed  to  collect  and  settle  his  principal's  demands 
has  no  implied  authority  to  assign  them  to  another  for  that  pur- 
pose;  nor  can  he  pledge  them  to  indemnify  a  surety  for  his 
principal.* 

>  Huber  v.  Zimmerman,  21  Ala.  488,  Central  R.  R.  Co.  v.  Gougar,  55  111. 
56  Am.   Dec.   255;    Scarborough  c.      503. 

Reynolds,    12   Ala.    252;    Michigan         "Wood  v.  McCain,  7  Ala.  800,  42 

Am.  Dec.  612. 

244 


KXEODTION  OF  THE  AUTHOEITT. 


§408. 


BOOK    III. 

OF  THE  EXECUTION  OF  THE  AUTHORITY. 


CHAPTER   L 


m  GENERAL. 


§  407.  Purpose  of  Book  HI. 

408.  Primary  Purpose  to  bind  Prin- 

cipal and  not  Agent. 

409.  Must  act  within  Scope  of  Au- 

thority. 

410.  Necessity  of    proper   Execu- 

tion. 

411.  How  Question  determined. 

412.  Execution  within,  and  exceed- 

ing Authority. 


413.  Slight  Deviation  does  not  inr 
validate. 

When  separable,  authorized 
Part  may  stand. 

When  Execution  lacks  essen- 
tial Elements. 

416.  Summary  of  the  Rules. 

417.  Should  act  in  Name  of  the 

Principal. 


414. 


415. 


§  407.  Ptirpose  of  Book  III.  In  the  preceding  chapters  it  has 
been  seen  how  authority  may  be  conferred  upon  an  agent,  and  by 
what  standards  the  nature  and  extent  of  the  authority  so  con- 
ferred are  to  be  determined. 

It  is  the  purpose  of  Book  III  to  ascertain  in  what  manner  the 
authority  so  conferred  and  so  construed  is  to  be  executed.  In 
what  is  said  upon  this  subject,  it  is  to  be  borne  in  mind  that  the 
authority  of  the  agent  to  perform  the  given  act  is  assumed  to 
be  established,  and  the  only  question  is  as  to  the  mode  and  suffi- 
ciency of  the  performance. 

§  408.  Primary  Purpose  to  bind  Principal  and  not  Agent. 
It  is  the  primary  purpose  of  the  creation  of  an  agency  to  author- 
ize the  agent  to  act  for  and  in  behalf  of  the  principal.  It  is, 
therefore,  the  primary  duty  of  the  agent  in  executing  the  author- 
ity to  80  act  as  to  secure  to  the  principal  the  benefits  to  be  derived 
from  the  performance,  and  to  impose  upon  him  the  responsibili- 

245 


I  409.  THB   LAW    OF    AGENCY.  [Book    III. 

ties  arising  therefrom.  In  other  words,  it  is  the  primary  func- 
tion of  the  agent  to  bind  the  principal  and  not  himself,  to  third 
persons,  and  likewise  to  bind  such  third  persons  to  the  principal 
and  not  to  himself. 

§  409.  Agent  must  act  within  the  Scope  of  his  Authority. 
The  act  of  the  agent,  whether  he  be  general  or  special,  within  the 
limits  of  his  authority  is  binding  upon  the  principal ;  his  act  be- 
yond those  limits,  binds  himself  only,  or  no  one.  Hence  arises 
the  fundamental  necessity  that  not  only  the  extent,  but  the  man- 
ner, of  the  execution  be  such  as  the  authority  conferred  will 
warrant,  and  no  other.  Where  precise  and  exact  limits  have 
been  fixed,  the  performance  of  the  agent  should  be  kept  scrupu- 
lously within  them.  When  those  limits  have  not  so  been  fixed, 
it  is  still  imperative  that  the  reasonable  and  usual  limits  in  such 
cases  be  determined,  and  that  the  manner  and  extent  of  the  exe- 
cution be  made  to  conform  to  them. 

§  410.  Necessity  of  proper  Execution.  It  is  obvious,  there- 
fore, that  attention  to  the  proper  execution  of  the  authority  is 
highly  important,  not  only  as  respects  the  principal  himself,  but 
the  agent  also.  Thus  the  agent  in  the  attempted  execution  of 
the  authority,  may  do,  (a)  exactly  what  he  was  authorized  to  do, 
or  (5)  more  than  he  was  authorized  to  do,  or  (c)  less  than  he  was 
directed  to  do,  and  the  result  of  his  performance  may  be  that — 

1.  He  will  bind  his  principal  only,  or 

2.  He  will  bind  himself  only,  or 

3.  His  attempted  execution  will  be  wholly  void ; 

whereas  the  first  result  was  the  only  one  contemplated  by  the 
parties  at  the  time  of  the  creation  of  the  agency. 

§  411.  How  Question  determined.  In  determining  the  ro 
suits  of  an  attempted  performance,  four  questions  arise : 

1.  What  authority  did  the  agent  possess  ? 

2.  Is  the  act  assumed  to  be  done  by  virtue  of  it,  in  reality 
within  its  scope  ? 

3.  Who  was  intended  to  be  bound  ?  and 

4.  Who  as  a  matter  of  fact  is  bound  ? 

The  first  two  of  these  questions  must  be  largely  determined 
by  the  principles  laid  down  in  the  preceding  chapters.  The  last 
two  are  yet  to  be  considered. 

§  412.     Execution  within,  and  exceeding  Authority.    Where 

246 


Chap.  L]  EXECUTION    OF   THE    AUTHORITY.  §  414. 

the  agent  keeps  strictly  within  the  limits  of  his  authority,  the 
only  question  that  will  arise  will  be  as  to  the  mode  of  perform- 
ance,— whether  it  is  such  as  to  bind  the  principal,  or  the  agent, 
or  neither. 

Where,  however,  the  agent  exceeds  those  limits,  the  question 
will  depend  somewhat  upon  the  degree  of  excess.  "  It  is  evi- 
dent," as  is  observed  by  a  learned  writer,  "  to  anyone  who  consid- 
ers the  matter,  that  the  variance  between  the  act  done  by  the 
agent  and  the  act  authorized  by  the  principal,  may  range 
through  every  degree  of  difference.  The  variance  may  be  infini- 
tesimal, or  it  may  be  so  great  as  to  make  an  absolute  departure 
from  the  authority  conferred.  To  determine  the  exact  point 
between  those  two  extremes  at  which  a  variance  becomes  sub- 
stantial and  material  often  gives  rise  to  difficult  questions.  The 
result  in  each  case  must  depend  upon  the  circumstances  of  the 
particular  case."  * 

§  413.  Slight  Deviation  does  not  invalidate.  No  inflexible 
rule  can  be  laid  down  by  which  to  determine  when  the  act  as 
performed  exceeds  the  limits  of  the  act  as  authorized.  But 
keeping  in  mind  the  fundamental  principle  to  which  reference 
has  so  frequently  been  made,  that  the  authority  conferred  in- 
cludes incidental  power  to  employ  all  the  usual  modes  and  means 
of  accomplishing  the  ends  and  purposes  of  the  agency,  it  may  be 
said  that  a  slight  deviation  from  the  course  of  his  duty  will  not 
vitiate  his  act,  if  the  variation  be  immaterial  and  circumstantial 
only,  and  does  not  in  substance  exceed  the  limits  fixed.' 

8  414.  Wlien  separable,  authorized  Part  may  stand.  Al- 
though the  agent  may  have  exceeded  his  authority,  yet  if  the 
act  be  separable,  it  may  stand  so  far  as  it  is  authorized.'     "When 

*  Evans'  Agency,  168.  sell  all  his  lands,  and  all  his  goods 

•  Huntley  v.  Mathias,  90  N.  C.  101,  and  chattels;  and  this  was  held  good. 
47  Am.  Rep.  516;  Parker  v.  Kett,  1  Where  the  authority  is  particular  the 
Salk.  95.  "Authorities  by  letter  of  party  must  pursue  it:  if  the  act  varies 
attorney,"  says  Holt,  Ch.  J.,  in  this  from  it,  he  departs  from  his  authority, 
case,  "are  either  general  or  special;  and  what  he  does  is  void;  but  that 
thus  a  letter  of  attorney  may  be  to  must  be  intended  of  a  variance  not  in 
Bue  in  omnibus  eausismotisetmovendis,  circumstance,  but  of  a  variance 
or  to  defend  a  particular  suit.  Sir  material  and  substantial,  as  where 
Philip  Sidney,  when  he  went  to  the  person,  the  thing,  or  the  date  is 
travel,  gave  a  letter  of  attorney  to  mistaken." 

Sir  Thomas  Walsingham  to  act  and  »  Drumright  v.  Philpot,  16  Ga.  424, 

247 


§  415.  THE   LAW   OF   AGENCY.  [Book  III. 

a  man,"  says  Lord  Coke,  "  doth  that  which  he  is  authorized  to 
do  and  more,  there  it  is  good  for  that  which  is  warranted,  and 
void  for  the  rest."  '  So  if  the  excess  be  merely  superfluous  it 
may  be  disregarded.  Thus  if  an  agent  authorized  to  enter  into 
a  contract  not  under  seal,  executes  it  under  seal,  yet  if  the  con- 
tract would  be  good  without  the  seal,  the  seal  may  be  disregarded 
and  the  contract  be  allowed  to  stand  as  written  evidence  of  a 
simple  contract.* 

So  if  an  agent  in  making  an  authorized  sale,  adds  unauthorized 
covenants,  the  purchaser  may  enforce  so  ranch  of  the  contract  as 
conforms  to  the  authority,  or,  at  his  option,  may  refuse  to 
abide  by  the  contract  at  all,  if  the  principal  repudiates  the  un- 
authorized covenants.' 

§  415.  When  Execution  lacks  essential  Elements.  Where, 
however,  the  execution  is  defective  by  reason  of  the  absence  of 
some  element  essential  to  a  complete  performance,  the  principal 
is  not  bound.  "Kegularly,"  says  Lord  Coke,  "it  is  true,  that 
where  a  man  doth  less  than  the  commandment  or  authority  com- 
mitted unto  him,  there  (the  commandment  or  authority  being 
not  pursued)  the  act  is  void."  * 

§  416.  Summary  of  the  Rules.  Where  there  is  a  complete 
execution  of  the  power  and  something  ex  abundanti  is  added 
which  was  not  authorized,  there  the  execution  is  good  and  the 
excess  only  is  void ;  but  where  there  is  not  a  complete  execntion 
of  the  power,  or  where  the  boundaries  between  the  execution 
and  the  excess  are  not  distinguishable,  the  whole  must  be  held 
bad.» 

§  417.     Should  act  in  Name  of  Principal.    It  is  also  a  general 

60  Am.  Dec.  738;  Vanada  v.  Hop-  Worrall  c.  Munn,  5  N.  Y.  229,  65  Am. 
kins,  IJ.  J.  Marsh.  (Ky.)  285, 19  Am.  Dec.  330;  Wood  v.  Auburn,  &c.,  R. 
Dec.  92;  Dickerman  v.  Ashton,  21  R.  Co.  8  N.  Y.  160;  Thomas  v.  Jos- 
Minn.  538;  Stowell  v.  Eldred,  39  lin,  30  Minn.  388. 
Wis.  614;  Evans  v.  Wells,  22  Wend.  » Vanada  v.  Hopkins,  IJ.  J.  Marsh. 
(K  Y.)  341;  Crozier  v,  Carr,  11  Tex.  (Ky.)  285,  19  Am.  Dec.  92;  Smith  t». 
376;  Moore  v.  Thompson,  32  Me.  497;  Tracy,  36  N.  Y.  79. 
Jesup  B.  City  Bank,  14  Wis.  331.  «Coke,  Lit.  258.  a.  Olyphant  e. 
•Coke.  Lit.  258,  a.  McNair,  41  Barb.  (N.  Y.)  446;  Mar- 


« Morrow  v.  Higgins,  29  Ala.  448 

Baum  V.  Dubois,   43  Penn.  St.  260 

Long  V.  Hartwell,  34  N.  J.  L.  116 

Dutton  V.  Warschauer,   21  Cal.  609 


land  V.  Stanwood,  101  Mass.  470. 

» Alexander  v.  Alexander,  2  Ves. 
Sr.  640;  Thomas  «.  Jodlin,  30  Minn. 
388. 

248 


Chap.  L]  EXECUTION  or  the  authority.  §417. 

rule,  subject  to  certain  exceptions  to  be  hereafter  noticed,  that 
the  act  of  the  agent  should  purport  to  be  what  it  is  intended 
to  be, — the  act  of  the  principal, — and  should  be  performed  in 
his  name  bv  the  agent  as  such.'  Where  the  character  in  which, 
and  the  person  for  whom,  the  act  is  done  are  clearly  expressed 
and  understood  at  the  lime,  many  of  the  difficult  questions,  here- 
after to  be  noted,  which  arise  where  these  matters  are  left  uncer- 
tain or  ambiguous,  would  be  avoided. 

•White  V.    Cuyler,    6  T.   R.    176;  418,   44  Am.    Dec.    665;  Clealand  v. 

Brinley  v.  Mann,  2  Cush.  (Mass.)  337,  Walker,  11   Ala.  1058.  46  Am.  Dec. 

48  Am.  Dec.  669;  Hale  t>.  Woods,  10  238;  Wood   v.  Goodridge,    6    Cush. 

N.  H.  470,  34  Am.  Dec.  176;  Mer-  (Mass.)  117,  52  Am.  Dec.  771. 
chants'  Bank  v.  Central  Bank,  1  Qa. 

249 


§418. 


THE    LAW    OF    AGENCY. 


[Book  III. 


CHAPTER  II. 

OP  THE  EXECUTION  OF  SEAXED  INSTRUMENTS. 


418.  Purpose  of  Chapter. 

419.  Must  purport  to  be  made  and 

sealed  in  the  Name  of  the 
Principal. 

420.  How  Question  determined. 

421.  Same  Subject — Not  enough 

that  the  Agent  is  described 
as  such. 

423.  Same  Subject — Illustrations. 

423.  Same  Subject— Further  Illus- 
trations. 

434.  Same  Subject— Further  Illus- 
trations —  Descriptio  Per- 
BonsB. 


§  435.  Same  Subject  — What  Form 
sufficient. 

426.  Distinction  in  Case  of  Public 
Agent. 

437,  Whether  necessary  that  Deed 
should  purport  to  be  exe- 
cuted by  Agent  —  Rule  of 
Wood  V.  Goodridge. 

428.  Same  Subject — Further  of  this 

Rule. 

429.  Same  Subject — How  in  Rea- 

son. 

430.  Parol  Evidence  not  admissible 

to  discharge  Agent. 


§  418.  Purpose  of  Chapter.  The  manner  of  the  execution  of 
instruments  under  seal,  such  as  deeds,  bonds  and  other  solemn 
writings,  is  of  so  much  importance  and  has  been  so  frequently 
discussed,  as  to  merit  the  more  extended  treatment,  which  it  is 
the  purpose  of  this  chapter  to  devote  to  it.  The  word  "  deed  " 
herein  is  used  to  describe  instruments  under  seal,  and  not  merely 
conveyances  of  land. 

§  419.  Must  purport  to  be  made  and  sealed  in  the  Name  of  thd 
Principal.  It  is  a  fundamental  rule  in  the  law  of  agency  that  in 
order  to  bind  the  principal  by  a  deed  executed  by  an  agent,  the 
deed  must  upon  its  face  purport  to  be  made,  signed  and  sealed  in 
the  name  of  the  principal.  If,  on  the  contrary,  though  the  agent 
describes  himself  an  agent,  or  though  he  add  the  word  agent  to 
his  name,  the  words  of  grant,  covenant  and  the  like,  purport 
upon  the  face  of  the  instrument  to  be  his,  and  the  seal  purports 
to  be  his  seal,  the  deed  will  bind  the  agent  and  not  the  principal.* 

iStincbfield  v.  Little,  1  Greenl.  Dec.  529;  Lutz  e.  Linthicum,  8  Pet. 
(Me.)  231,  10  Am.  Dec.  65;  Stone  «.  (U,  S.)  165;  FuUam  «.  West  Brook- 
Wood,  7  Cow.  (N.  Y.)  453,  17  Am,      field,  9  Allen  (Mass.)  1;  Townsend  «. 

250 


Chap.  II.]  EXECUTION    OF    SEALED    INSTKTJMENTS.  §  421. 

This  rule,  however,  while  well  settled,  is  highly  technical  in  its 
nature,  being  founded  upon  the  common  law  theories  of  the  ef- 
fect of  a  seal,  and  like  other  rules  based  purely  upon  these 
theories,  has  encountered  a  strong  tendency  in  recent  cases  to 
make  the  mere  presence  of  a  seal  subordinate  to  the  evident  in- 
tention of  the  parties.' 

§420.  How  Question  determined.  In  determining  whether 
the  deed  is  the  deed  of  the  principal,  regard  may  be  had,  First^ 
to  the  party  named  as  grantor.  Is  the  deed  stated  to  be  made  by 
the  principal  or  by  some  other  person  ?  Secondly^  to  the  grant- 
ing clause.  Is  the  principal  or  the  agent  the  person  who  pur- 
ports to  make  the  grant?  Thirdly^  to  the  covenants,  if  any. 
Are  these  the  covenants  of  the  principal  ?  Fourthly,  to  the  testi- 
monium clause.  Who  is  it  who  is  to  set  his  name  and  seal  in 
testimony  of  the  grant?  Is  it  the  principal  or  the  agent?  And 
Fifthly,  to  the  signature  and  seal.  Whose  signature  and  seal  are 
these  ?     Are  they  those  of  the  principal  or  of  the  agent  ? 

If  upon  such  an  analysis  the  deed  does  not  upon  its  face  pur- 
port to  be  the  deed  of  the  principal,  made,  signed,  sealed  aud  de- 
livered in  his  name  and  as  his  deed,  it  cannot  take  effect  as  such. 

§  421.  Same  Subject— Not  enough  that  the  Agent  is  described 
as  such.  It  is  not  enough  that  the  agent  was  in  fact  authorized 
to  make  the  deed,  if  he  has  not  acted  in  the  name  of  the  princi- 
pal. Nor  is  it  sufficient  that  he  describes  himself  in  the  deed  as 
acting  by  virtue  of  a  power  of  attorney  or  otherwise,  for,  or  in 
behalf,  or  as  attorney,  of  the  principal,  or  as  a  committee,  or  as 
trustees  of  a  corporation,  etc.;  for  these  expressions  are  but  de- 
aoriptio personcB,  and  if  in  fact,  he  has  acted  in  his  own  name 
and  set  his  own  hand  and  seal,  he  is  bound  personally  and  not  the 
principal,  despite  these  recitals.* 

Corning,    23    Wend.    (N.    Y.)    435;  48  Am.  Dec.  669;  Combe's  Case,  9 

Briggs  B.  Partridge,  64  N.  Y.  357,21  Co.  76;  Fowler  v.   Shearer,    7  Mass. 

Am.  Rep.  617;  Grubbs  v.  Wiley,  17  14;  Carter  v.  Chaudron,  21  Ala.  72; 

Miss.  29;  Hopkins  v.  MehafEy,  11  8.  Bogart  v.  De  Bussy,  6  Johns.  (N.  Y.) 

&  R.  (Penn.)  126;  Webster  v.  Brown,  94;  Martin  v.  Flowers,  8  Leigh  (Va.) 

2  Rich.  (8.  C.)  N.  8.  428;  Echols  v.  158,  and  see  cases  cited  in  following 

Cheney,   28  Cal,    157;    Morrison    «.  sections. 

Bowman,  29  Cal.   337;  Hancock   e.  >  See  remarks  of  Henry,  J.,  in  Mc- 

Yunker,  83  111.,  208;  City  of  Provi-  Clure  v.  Herring,  70  Mo.  18,  35  Am. 

dence  v.  Miller,  11  R.  I.  272;    Elwell  Rep.  404. 

•.  Shaw,  16  Mass.  42,  8  Am.  Dec.  126;  «  Stinchfield    «.   Little,    1   Greenl. 

Brinley  v.  Mann,  2  Cush.  (Mass.)  337,  (Me.)  231,  10  Am.  Dec.  65;  Fowler  e. 

251 


§  422.  THB    LAW    OF    AGENCY.  [Book  III. 

But  at  the  same  time,  no  set  form  of  words  is  necessary.  The 
deed  must  be  in  the  name,  and  purport  to  be  the  act  and  deed,  of 
the  principal ;  but  whether  such  is  the  purport  of  the  instrument, 
must  be  determined  from  its  general  tenor,  and  not  from  any  par- 
ticular clause.  Such  construction  must  be  given,  in  this  as  well 
as  in  other  questions  arising  on  conveyances,  as  shall  make  every 
part  of  the  instrument  operative  as  far  as  possible ;  and  when 
the  intention  of  the  parties  can  be  discovered,  such  intention 
should  be  carried  into  effect,  if  it  can  be  done  consistently  with 
the  rules  of  law.' 

Thus  in  a  leading  English  case,  the  court  says :  "  There  is  no 
particular  form  of  words  required  .to  be  used,  provided  the  act 
be  in  the  name  of  the  principal,  for  where  is  the  difference  be- 
tween signing  J  B  by  M  W,  his  attorney,  which  must  be  ad- 
mitted to  be  good,  and  M  W  f or  J  B  ?  In  either  case,  the  act 
of  sealing  and  delivering  is  done  in  the  name  of  the  principal 
and  by  his  authority.  Whether  the  attorney  put  his  name  first 
or  last  cannot  affect  the  validity  of  the  act  done."  * 

§  422.  Same  Subject— Illustrations.  Thus  where  a  deed  was 
executed  by  an  agent  in  the  following  form,  "  Know  all  men,  etc., 
that  I,  Josiah  Little,  of,  etc.,  by  virtue  of  a  vote  of  the  Pejebscot 
Proprietors,  passed,  etc.,  authorizing  and  appointing  me  to  give 
and  execute  deeds  for  and  in  behalf  of  said  proprietors,  for  and 

Shearer,  7  Mass.  14;  Tippets ».  Walk-  155;  11  Am.   Dec.   750;  Scott  v.  Mc- 

er,   4  Mass.   595;  Tucker  v.  Bass,  5  Alpin.  K  C.  Term  Rep.  155,  7  Am. 

Mass.  164;  Taft  v.  Brewster,  9  Johns.  Dec.  703;  Bellas  «.   Hays,  5  Serg.  & 

(N.  Y.)334,  6  Am.   Dec.  280;  Lutz  R.    (Penn.)  427,    9    Am.    Dec,   385; 

t>.    Linthicum,    8    Pet.  (U.  S.)  165;  Fisher  c.  Salmon,  1  Cal.  413,  54  Am. 

FuUam  v.  West  Brookfield,  9  Allen  Dec.  297;  Welsh  v.  Usher,  2  Hill  Ch. 

(Mass.)l;  Duval  v.  Craig,  2  Wheat.  (S.  C.)  167,  29  Am.  Dec.   63;  Buffalo 

(U.S.)    45;    Deming    v.    Bullitt,    1  Catholic  Institute  o.  Bitter,  87  N.  Y. 

Black f.  (Ind.)  241;  White*.  Skinner,  250;  Willis   v.    Bellamy,   52    N.   Y. 

13  Johns.    (N.  Y.)  307,   7  Am.   Dec.  Super.  Ct.  373. 

881;  Quigley  v.  DeHaas,  82  Penn.  St.  >  Hale  v.  Woods,  10  N.  H.  470,  34 

267,'  Briggs  v.    Partridge,  64  N.  Y.  Am.  Dec.    176;  Jackson  v.   Biodget, 

357',  21  Am.    Rep.    617;  Kiersted   v.  16  Johns.    (N.  Y.)    173;    Bridge    e. 

Orange,  &c.  R.  R.  Co.  69  N.  Y.  343,  Wellington,    1    Mass.   219;  Davis  v. 

25  Am.  Rep.  199;  Sargent  U.Webster,  Hayden,    9.     Mass.     514;     Hatch  «. 

13  Mete.  (Mass.)  497;  46  Am.  Dec.  Dwight,  17  Mass.   289,  9   Am.    Dec. 

743;  Endsley  «.  Strock,  50  Mo.  508;  147;  Magill  v.  Hinsdale,  6  Conn.  464 

Jones  V.  Morris.  61  Ala.  518;  Banks  a,  16  Am.  Dec.  70;  Hovey  c.  Magill, 

t..  Sharp,  6  J.  J.   Marsh.   (Ky.)  180;  2  Conn.  680. 

Locke  V.  Alexander,  2  Hawk.  (N.  C.)  *  Wilks  v.  Back,  2  East  142. 

252 


Chap.   II.]  EXECUTION    OF    SEALED   INSTEUMENT8.  §  422. 

in  consideration  of  the  sum  of  thirty-seven  pounds  to  me  in  hand 
paid  by  Thomas  Stinchtield,  of,  etc.,  the  receipt  whereof  I  do 
hereby  acknowledge,  have  given,  granted,  released,  conveyed  and 
confirmed  unto  him,  the  said  Thomas  Stinchfield,  his  heirs  and  as- 
signs, two  hundred  acres,  etc.  To  have  and  to  hold,  etc.,  hereby 
covenanting  in  behalf  of  said  proprietors,  their  respective  heirs, 
executors  and  administrators,  to  and  with  the  said  T.  S.,  his  heirs 
and  assigns,  to  warrant,  confirm  and  defend  him  and  them  in  the 
possession  of  the  said  granted  premises,  against  the  lawful  claims 
of  all  persons  whatsoever.  In  testimony  that  this  instrument 
shall  be  forever  hereafter  acknowledged  by  the  said  proprietors 
as  their  act  and  deed  and  be  held  good  and  valid  by  them,  I,  the 
said  Josiah  Little,  by  virtue  of  the  aforesaid  vote,  do  hereby  set 
ray  hand  and  seal  this  day,  etc."  Signed  "Josiah  Little,  Seal," 
it  was  held  to  be  the  deed  of  Josiah  Little  and  that  he,  and  not  the 
Pejebscot  Proprietors,  was  liable  upon  the  covenants.^ 

So  where  Jonathan  Elwell  executed  to  Joshua  Elwell  a  power 
of  attorney  to  convey  the  lands  in  question,  and  the  latter,  pur- 
porting to  act  in  pursuance  of  it,  executed  a  deed  of  the  land,  in 
which,  after  reciting  the  power,  he  proceeded :  "  Now  know  ye 
that  I,  the  said  Joshua,  by  virtue  of  the  power  aforesaid,  in  con- 
sideration, etc.,  do  hereby  bargain,  grant,  sell  and  convey  unto 
the  said  (grantees)  to  have  and  to  hold,  etc.,  and  I  do  covenant 
with  the  said  (grantees)  that  I  am  duly  empowered  to  make  the 
grant  and  conveyance  aforesaid  ;  that  the  said  Jonathan  at  the 
time  of  executing  said  power  was,  and  now  is,  lawfully  seized  of 
the  premises,  and  that  he  will  warrant  and  defend  the  same,  etc. 
In  testimony  whereof,  I  have  hereunto  set  the  name  and  seal 
of  the  said  Jonathan  this  day,  etc.,"  and  signed  "Joshua  Elwell" 
and  seal,  the  deed  was  held  not  be  the  deed  of  Jonathan.* 

And  again  where  one  of  two  deeds  which  purported  to  be  made 
by  "  New  England  Silk  Company,  a  corporation,  by  Christopher 
Colt,  Jun.,  their  treasurer,"  was  attested :  "  In  witness  whereof, 
I,  the  said  Christopher  Colt,  Jun.,  in  behalf  of  said  company, 
and  as  their  treasurer,  have  hereunto  set  ray  hand  and  seal,"  was 
signed  and  sealed  "  Christopher  Colt,  Jun.,  treasurer,  New  Eng- 
land Silk  Company,"  and  the  acknowledgment  was  to  the  effect 

»  Stinchfield    e.    Little,    (1821),     1  « Elwell  v.  Shaw,  (1819),  16    Mass. 

Greenl.  (Me.)  231,  10  Am.  Dec.  65.  42,  8  Am.  Dec.  126. 

253 


§  422.  THB    LAW    OF    AGENCY.  [Book    III. 

that  "  Christopher  Colt,  Jun.,  treasurer,  etc.,  acknowledged  the 
above  instrument  to  be  his  free  act  and  deed,"  and  the  other  deed 
was  like  the  first  except  that  Colt  was  therein  described  as  "  treas- 
urer of  New  England  Silk  Company,  and  duly  authorized  for 
that  purpose,"  the  court  held  each  of  them  to  be  inoperative 
to  convey  the  title  of  the  Silk  Company.  In  both  of  these  deeds, 
as  will  be  noticed,  the  principal  was  properly  named  as  grantor 
but  they  were  signed  and  sealed  by  the  agent  in  his  own  name. 
"  Both  of  these  deeds,"  said  Judge  Metcalf,  "  were  executed  by 
C.  Colt,  Jun.,  in  his  own  name,  were  sealed  with  his  seal,  and 
were  acknowledged  by  him  as  his  acts  and  deeds.  In  one 
of  them,  it  is  true,  he  declared  that  he  acted  in  behalf  of  the 
company,  and  as  their  treasurer;  and  in  the  other  he  declared 
himself  to  be  their  treasurer,  and  to  be  duly  authorized  for  the 
purpose  of  executing  it.  But  this  was  not  enough.  He  should 
have  executed  the  deeds  in  the  name  of  the  company.  He  should 
also  have  affixed  to  them  the  seal  of  the  company,  and  have  ac- 
knowledged them  to  be  the  deeds  of  the  company."' 

Where,  however,  although  the  agent  was  named  in  the  instru-' 
ment  as  the  party,  the  deed  was  properly  signed  in  the  name  of 
the  principal,  it  was  given  effect  as  the  deed  of  the  principal,  and 
not  of  the  agent.*  In  this  case  a  lease  was  made  commencing 
as  follows :  "  This  indenture,  made  this  17th  day  of  April,  A.  D. 
1869,  between  Daniel  R.  Brant,  of  the  city  of  Chicago,  party  of 
the  first  part,  and  Edward  F.  Lawrence,  president  of  the  North- 
western Distilling  Company,  of  the  same  place,  party  of  the  sec- 
ond part."  Throughout  the  lease  the  parties  were  spoken  of  as 
persons  and  the  covenants  were  personal  covenants,  and  the  in- 
strument concluded  as  follows  :  "  In  testimony  whereof,  the  said 
parties  have  hereunto  set  their  hands  and  seals  the  day  and  year 
first  above  written.  D.  R.  Brant.  [Seal.]  Northwestern  Dis- 
tilling Co.     [Seal.]     By  Edward  Lawrence,  President." 

So  where  a  deed  reading,  "  Kjiow  all  men  by  these  presents 
that  the  West  Kansas  Land  Company,  by  Solomon  Houck,  Pres- 
ident, and  Theodore  S.  Case,  Secretary,  *  *  *  has  granted," 
etc.,  was  signed  "  Solomon  Houck,  President  [Seal],  Theodore  S. 

»  Brinley  v.  Mann,   (1848),  2  Cush.  Rep.  631.  See  also  to  the  same  effect, 

(Mass.)  337,  48  Am,  Dec.  669.  Shanks  v.  Lancaster,  (1848),  5  Gratt. 

2  Northwestern  Distilling  Co.  t>.  (Va.)  110,  50  Am.  Dec.  108;  Butter- 
Brant,  (1873),    69  111.   658,   18    Am.  field  b.  BeaU  (1851),  8  Ind.  203. 

254: 


Chap.  II.]  BXEOUTION    OF    SEALED    INSTRUMENTS.  §  423. 

Case,  Sect'j  [Seal],  W.  K.  Land  Co.  [Seal],"  it  was  held  to  be 
the  deed  of  the  company.' 

§  423.  Same  Subject— Further  Illustrations.  So  where  a 
manufacturing  company  by  vote  had  authorized  one  Arthur  W. 
Magill  to  make  a  deed  of  the  real  estate  of  the  company,  and  he, 
in  pursuance  of  the  authority,  executed  a  deed,  of  which  the 
granting  part  was  as  follows  :  "  Arthur  W.  Magill,  agent  for  the 
Middletown  Manufacturing  Company,  being  empowered  by 
vote,"  etc.,  "  for  and  in  behalf  of  said  company,"  etc.,  "  do  give, 
grant,"  etc.,  the  covenant  being:  "I  do  hereby  covenant  for  and 
in  behalf  of  the  said  company,"  etc.,  "  that  said  Middletown 
Manufacturing  Company  is  well  seized,"  etc.,  "and  I  do  also 
bind  the  said  Middletown  Manufacturing  Company  to  warrant 
and  defend,"  etc.,  and  the  conclusion  being  as  follows:  "In  wit- 
ness whereof,  I  have  hereto,  for  and  in  behalf  of  said  Middle- 
town  Manufacturing  Company,  set  my  hand  and  seal  at  Middle- 
town,  this  29th  day  of  March,  A.  D.  1817.  Arthur  W.  Magill 
[l.  8.],  agent  for  the  Middletown  Manufacturing  Company,"  it 
was  held  that  this  was  the  deed  of  the  company  and  not  of  the 
agent.* 

And  again,  where  the  terms  of  the  conveyance  were:  "I, 
Daniel  King,  as  well  for  myself  as  attorney  for  Zachariah  King, 
do  for  myself  and  the  said  Zachariah,  remise,  release  and  forever 
quit-claim"  the  premises,  "together  with  all  the  estate,  right, 
title,  interest,  use,  property,  claim  and  demand  whatsoever,  of 
me,  the  said  Daniel,  and  said  Zachariah,  which  we  now  have,  or 
heretofore  had  at  any  time,  in  said  premises.  And  we,  the  said 
Daniel  and  Zachariah,  do  hereby,  for  ourselves,  our  heirs  and 
executors,  covenant  that  the  premises  are  free  of  all  incumbrance 
and  that  the  grantee  may  quietly  enjoy  the  same  without  any 
claim  or  hindrance  from  us  or  any  one  claiming  under  us,  or 
either  of  us.  In  witness  whereof,  we  the  said  Daniel  for  himself 
and  as  attorney  aforesaid,  have  hereunto  set  our  hands  and  seals," 
etc.,  and  signed  "Daniel  King"  and  "  Daniel  King,  attorney  for 
Zachariah  King,  being  duly  authorized  as  appears  of  record," 

'  City  of  Kansas  v.  Hannibal,  &G.  «  Magill  v.  Hinsdale  (1837),  6  Conn. 

R.  R.  Co.  (1882),  77  Mo.  180.  464  a,  16  Am.  Dec.  70. 

255 


§424. 


THE  LAW  OF  AGENCY.  [Book  IIL 


with  seals  aflSxed  to  each  signature,  it  was  held  that  the  grant 
conveyed  the  title  of  both.* 

So  where  the  deed  of  the  land  of  T  and  S,  his  wife,  was 
drawn  as  follows :  "  I,  H,  for  myself,  and  as  attorney  for  T  and 
S,  by  their  letters  of  attorney  under  their  hands  and  seals,  in 
consideration,  etc.,  to  us  paid  by  L,  do  sell  and  convey  to  L,  etc. 
And  we  the  said  T  and  S  do  covenant,  etc.  In  witness  whereof, 
I  H  in  my  own  right  have  hereunto  set  my  hand  and  seal,  and 
as  attorney  for  said  T  and  S  have  hereunto  set  their  hands  and 
seals,"  and  was  signed  "  H.  [l.  s.]  T.  [l.  s.]  S.  [l.  s.]  By  H, 
their  attorney  in  fact,"  it  was  held  that  the  deed  was  that  of  T 
and  his  wife  S,  and  not  of  the  agent  H.' 

But  where  A  gave  to  his  wife  B  a  power  of  attorney  to  exe- 
cute a  deed  of  land  and  she  made  the  deed  in  the  following 
form :  "  Know  ye  that  I,  B,  of,  etc.,  as  attorney  to  A,  of,  etc.,  in 
consideration,  etc.,  have  granted,  etc.  In  witness  whereof  I  have 
hereunto  set  my  hand  and  seal.  B.  [Seal],"  the  court  held  that 
it  was  not  the  deed  of  A.' 

8  424.  Same  Subject— Further  Illustrations— Descriptio  Per- 
sonse.  Where  the  covenants  are  clearly  personal,  the  mere  addi- 
tion of  the  word  "  agent,"  "  trustee,"  etc.,  will  not,  as  has  beer 
stated,  change  their  character. 

Thus  where  a  bond  was  executed  by  certain  persons,  whc 
signed  and  sealed  the  same  as  individuals,  but  added  "Trustees 
of  the  Baptist  Society  of  the  Town  of  Richfield,"  the  court 
said :  "The  bond  must  be  considered  as  given  by  the  defendants 
in  their  individual  capacities.  It  is  not  the  bond  of  the  Baptist 
church  ;  and  if  the  defendants  are  not  bound  the  church  certainly 
is  not,  for  the  church  has  not  contracted  either  in  its  corporate 
name  or  by  its  seal.  The  addition  of  '  Trustees '  to  the  names 
of  the  defendants  is,  in  this  case,  a  mere  descriptio  perso- 
nai'um. 


»  « 


I  Hale «.   Woods    (1839).  10  N.  H.  Grott.    ( Va. )    110,     50    Am.     Dec. 

470,  34  Am.  Dec.  176;  citing  Wilks  108. 

V.    Back   (1802),    2  East,    142,    and  *  Fowler  v.  Shearer  (1810),  7  Mass. 

Montgomery  v.  Dorion  (1835),  7  N.H.  15- 

484  «  Taft  ».  Brewster  (1812),  9  Johns. 

«  McClure  c.  Herring  (1879),70  Mo.  (N.  T.)  334,  6  Am.   Dec.    280.     See 

18,  35  Am.  Rep.  404.     To  like  effect  Fullam  v.  West  Brookfield,  (1864),  9 

see    Shanks   v.    Lancaster    (1848),  5  Allen,  (Mass.)  1. 

256 


Chap.  II.]  EXECUTION    OF   SEALED    IN8TRUMENT8.  §  425. 

And  for  the  same  reason,  where  A,  B,  C  and  others,  "  trustees 
of  the  Methodist  Episcopal  Church  of  Jacksonville,  their  suc- 
cessors and  assigns,"  executed  a  bond,  binding  themselves,  their 
heirs,  executors  and  administrators,  and  signed  it  in  their  indi- 
vidual names,  they  were  held  personally  liable.' 

§  425.  Same  Subject— What  Form  sufficient.  Where  a  lease 
purporting  to  be  made  by  Mnssey,  was  signed  "  John  Hammond 
for  B.  B.  Mussey,  (Seal)  "  it  was  held  that  it  was  well  executed 
as  the  lease  of  Mussey.  Said  the  court :  "  The  defendant  does 
not  deny  Hammond's  authority,  but  takes  the  ground  that  the 
lease  is  not  the  deed  of  Mussey  but  of  Hammond.  And  the 
common  learning  is  relied  on,  to  wit,  that  when  a  deed  is  executed 
by  attorney,  it  must  be  the  act  of  the  principal,  done  and  exe- 
cuted in  the  principal's  name.  The  only  question  is.  What  is  an 
execution  of  a  deed,  by  an  attorney,  in  the  name  of  the  princi- 
pal ?  We  understand  the  execution  of  a  deed  to  be  the  signing, 
sealing  and  delivery  of  it.  These  must  be  done  in  the  name  of 
the  principal  by  the  hand  of  the  attorney.  When  the  signing 
and  sealing  are  in  the  name  of  the  principal,  the  delivery  will 
be  presumed  to  have  been  so,  unless  the  contrary  is  proved. 
But  however  clearly  the  body  of  the  deed  may  show  an  intent 
that  it  shall  be  the  act  of  the  principal,  yet  unless  it  is  executed 
by  his  attorney  for  him,  it  is  not  his  deed,  but  the  deed  of  the 
attorney  or  of  no  one.'  The  most  usual  and  approved  form  of 
executing  a  deed  by  attorney  is  by  his  writing  the  name  of  the 
principal  and  adding  '  by  A  B  his  attorney'  or  'by  his  attorney 
A  B.'  But  this  is  not  the  only  form  of  execution  which  will 
make  the  deed  the  act  of  the  principal.  In  Wilks  v.  Back,'  M. 
Wilks,  attorney  for  J.  Browne,  executed  a  deed  for  himself  and 
Browne  in  this  form:  '  Mathias  Wilks'  (Seal);  'For  James 
Browne,  Mathias  Wilks '  (Seal).  The  court  of  King's  bench  de- 
cided that  the  deed  was  well  executed  in  the  name  of  Browne. 
This  decision  has  never  been  overruled,  but  has  always  been  re- 
garded as  rightly  made."  * 

1  Dayton  v.  Wame  (1881),  43  N.  J.  (Mass.)  215,  54  Am.  Dec.  719,  citing 

L.  659.  Wilburn  «.   Larkin  (1832),  3  Blackf. 

•  Lessee  of  Clarke  «.  Courtney,  (Ind)  55;  Hunter®.  Miller  (1846),  6  B. 
(1831)  5  Pet.  (U.  S.)  850.  Mon.  (Ky.)  612.     And   to  the  same 

»  2  East,  142.  effect  are,  Shanks  v.  Lancaster  (1848), 

*  Mussey    v.  Scott  (1851),  7  Cush.       5  Gratt.  (Va.)  110,  50  Am.  Dec.  108; 

17  257 


§  426.  THE   LAW   OP  AGENCY.  [Book  III. 

So  where  the  operative  clauses  of  a  deed  were  in  the  name  of 
the  corporation  "  by  William  Wallace,  their  agent,"  and  the  cov- 
enants were  in  the  name  of  the  corporation,  but  the  signature 
was  "William  Wallace,  Agent  for  the  Flower  Brook  Manufac- 
turing Company,"  the  court  held  that  the  deed  must  be  consid- 
ered the  deed  of  the  corporation.' 

And  where  a  contract  under  seal  was  made  "between  the 
O.  I.  Co.  party  of  the  first  part  by  J.  S.  B.  agent,  and  J.  K.  B. 
and  E.  0.  B.  parties  of  the  second  part ;"  the  stipulations  in  the 
contract  purporting  to  be  between  "  the  said  party  of  the  first 
part"  and  "  the  said  parties  of  the  second  part,"  no  names  being 
given,  and  concluded,  "In  witness  whereof  the  parties  have 
hereunto  afl&xed  their  hands  and  seals,"  and  was  signed  "  J.  S. 
B.  Agent  (l.  s.),  J.  K.  B.  (l.  s.),  E.  C.  B.  (l.  s.),"  it  was  held  to 
be  the  deed  of  the  company.' 

In  the  preceding  cases  cited  in  this  section  it  will  be  noticed 
that  the  respective  instruments  purported  to  be  made  by  and  in 
the  name  of  the  principal.  But  where  a  bond  beginning  "  I 
promise  to  pay,"  etc.,  and  not  mentioning  any  obligor's  name, 
was  signed,  "  Witness  my  hand  and  seal,  H.  S.  Lucas,  (Seal)  for 
Charles  Callender,"  the  Supreme  Court  of  North  Carolina  held 
Lucas  personally  responsible."  And  so  where  a  bond  was  signed 
"  Thomas  Dix,  acting  for  James  Dix,"  Chief  Justice  Kuffin  said 
it  was  "  unquestionably  the  bond  of  Thomas  and  not  of  James. 
The  former  seals  it  and  bespeaks  in  it  throughout,  and  the  latter 
not  at  all."  *  But  the  same  judge  in  passing  upon  the  liability  of 
a  party  to  a  deed  says :  "  It  is  not  material  in  what  form  the 
deed  be  signed,  whether  A  B  by  C  D  or  C  D  for  A  B  provided 
it  appears  in  the  deed,  and  by  the  execution  that  it  is  the  deed 
of  the  principal."  • 

S  426.  Distinction  in  Case  of  Publio  Agents.  But  a  distinc- 
tion has  been  made  in  the  case  of  public  agents,  who  have  en- 
tered into  agreements,  not  negotiable,  for   the  performance  of 

Tucker  Mnfg.    Co.     «.    Fairbanks  •  Bryson  e.  Lucas  (1881),  84  N.  0. 

(1867)  98  Mass.  105.  680,  37  Am.  Rep.  634. 

»McDanielsi>.  Flower  Brook  Mnfg.  «  Oliver  v.   Dix  (1835),   1  Dev.  & 

Co  (1850)  22  Vt.  274;  see  also  Mar-  Bat.  Eq.  (N.  C.)  158. 

tin  »  Almond  (1857),  25  Mo.  813.  «  Redmond  v.  Coffin  (1833),  2  Dev. 

«  Bradstreet  •.  Baker  (1884),  14  R.  Eq.  (N.  0.)  437. 


L546. 


258 


Chap.  II.]  EXECUTION   OF   SEALED   INSTKUMENTS.  §  427. 

public  duties.  In  such  a  case  it  is  to  be  presumed  that  they  did 
not  undertake  personally  to  assume  the  public  burdens,  and 
although  they  may  have  entered  into  covenants  under  seal,  par- 
taking of  a  personal  nature,  yet  where  the  obligation  is  known  to 
be  a  public  one,  they  can  only  be  held  personally  bound,  if  at  all 
where  the  intent  is  clearly  apparent  so  to  bind  them.'  Said 
Chief  Justice  Marshall:  "The  intent  of  the  officer  to  bind 
himself  personally,  must  be  very  apparent  indeed  to  induce  such 
a  construction  of  the  contract ;"  *  and  it  is  said  by  another 
learned  judge  that :  "  It  is  much  against  public  policy  to  cast 
the  obligations  that  justly  belong  to  the  body  politic  upon  this 
class  of  officials."  • 

These  cases,  however,  are  not  to  be  confounded  with  the  cases 
where  the  agents,  like  the  trustees  and  officers  of  private  corpo- 
rations and  religious  bodies,  are  not  public  in  their  nature,  nor 
with  cases  of  negotiable  instruments,  which  stand  upon  different 
ground. 

§  427.  Whether  necessary  that  Deed  should  purport  to  bo 
executed  by  an  Agent.  Whether  it  is  necessary  to  the  validity 
of  the  deed  that  it  should  on  its  face  purport  to  be  executed  by 
an  agent,  or  whether  the  agent  may  act  in  the  principal's  name 
throughout  with  nothing  to  disclose  the  fact  of  the  agency,  are 
questions  which  have  been  much  discussed. 

'  Hodgson  «.  Dexter,  1  Cranch  (U.  (Town  Commissioners  held  person- 

B.)  345  (Secretary  of  War);    Knight  ally  liable  because  they  exceeded  their 

c.  Clark,  48  N.  J.  L,  22.  57  Am.  Rep.  authority);    Belknap  «.   Reinhart,   2 

634   (Township  Trustees);    Jones  v.  Wend.  (N.  Y.)  875,  20  Am.  Dec.  621 

LeTombe,  3  Dallas  (U.  S.)  384  (Con-  (Captain  U.  8.  Army);  Stinchfleld  v. 

Bul  General  of  France);  Fox  O.Drake,  Little,  1   Greenl.   (Me.)  231,  10  Am. 

8    Cow.    (N.    Y.)  191  (Court  House  Dec.  65;  Dawes  «.   Jackson,  9  Mass. 

Commissioners);   Tutt  v.    Hobbs,  17  490  (Superintendent  of  States  Prison); 

Mo.  486  (School  Trustees);  Miller  v.  Freeman  v.  Otis,  9  Mass.  272,   6  Am. 

Ford,  4  Rich.  (S.  C.)  L.   376,  55  Am.  Dec.  66  (U.  8.  Collector  of  Customs); 

Dec.  687  (Commissioners  of  Roads);  Walker  o.  Swartwout,  12  Johns.  (N. 

Simonds  v.  Heard,   23  Pick.   (Mass.)  Y.)  444,  7  Am.    Dec.   834   (Quarter- 

120,  34  Am.  Dec.  41  (Committee  of  master  general  U.  8.  Army) ;  Wallis  ». 

town  held  to  be  personally  liable  on  Johnson   School  Township,  76  Ind. 

the  ground  that  the  intent  was  clear  368  (Trustee  of  schools), 

to  make  them  so);  Brown  v.  Austin,  1  *  In  Hodgson  «.  Dexter,  1  Cranch 

Mass.  208,  2  Am.  Dec.  11  (Agent  ap-  (U.  8.)  345. 

pointed  to  take  depositions  by  com-  •  Bkasley,    0.    J.    in    Knight   e. 

mittee  of  Congress);  McClenticks  t>.  Clark,  48  N.   J.  L.  22,   57  Am.  Rep. 

Bryant,  1  Mo.  598;  14  Am.  Dec.  310  534. 

269 


§  428.  THE   LAW    OF   AGENCY.  [Book  IIL 

Thus  in  Wood  v.  Goodridge  the  agent  had  executed  a  mort- 
gage by  simply  signing  the  name  of  his  principal  with  nothing 
to  show  that  it  was  signed  by  an  agent  and  not  by  the  principal 
in  person.  Fletcher,  J.,  was  of  the  opinion  that  such  a  form  of 
execution  was  not  authorized,  and  said : — 

Hule  of  Wood  V.  Goodridge. — "It  should  appear  upon  the  face 
of  the  instruments  that  they  were  executed  by  the  attorney,  and 
in  virtue  of  the  authority  delegated  to  him  for  this  purpose.  It 
is  not  enough  that  an  attorney  in  fact  has  authority,  but  it  must 
appear  by  the  instruments  themselves  which  he  executes,  that  he 
intends  to  execute  this  authority.  The  instruments  should  be 
made  by  the  attorney  expressly,  as  such  attorney ;  and  the  exer- 
cise of  his  delegated  authority  should  be  distinctly  avowed  upon 
the  instruments  themselves.  Whatever  may  be  the  secret  in- 
tent and  purpose  of  the  attorney,  or  whatever  may  be  his 
oral  declaration  or  profession  at  the  time,  he  does  not  in  fact 
execute  the  instruments  as  attorney,  and  in  the  exercise  of  his 
power  as  attorney,  unless  it  is  so  expressed  in  the  instruments. 
The  instruments  must  speak  for  themselves.  Though  the  attor- 
ney should  intend  a  deed  to  be  the  deed  of  his  principal,  yet  it 
will  not  be  the  deed  of  the  principal,  unless  the  instrument  pur- 
ports on  its  face  to  be  his  deed.  The  authority  given  clearly  is, 
that  the  attorney  shall  execute  the  deed  as  attorney  but  in  the 
name  of  the  principal."  *  The  decision  in  the  case,  however,  was 
placed  upon  other  grounds. 

Bow  of  this  Bule. — This  rule,  certainly,  has  much  to  com- 
mend it,  as  tending  to  the  due  and  orderly  execution  of  impor- 
tant instruments,  and  as  facilitating  greatly  the  proper  preserva- 
tion in  the  public  records  of  the  evidence  of  the  authority  and 
of  its  exercise.  But  at  most,  it  was  a  mere  dictum  in  the  case, 
and  its  authority  has  not  generally  been  conceded,  even  in  its  own 
State." 

§  428.  Same  Subjects— Further  of  this  Bule.  In  Forsyth  v. 
Day,*  speaking  of  this  case.  Rice,  J,  said :  "  No  case,  I  appre- 
hend, can  be  found  in  the  books  which  will  sustain  the  rule  so 
broadly  laid  down  by  the  learned  judge  in  the  case  of  Wood  v. 
Goodridge.     Nor  can  the  doctrine  be  sustained  on  principle.     It 

» (1860)  6  Cush.  (Mass.)  117,  52  Am,  •  Hunter  «.  Giddings,  96  Mass.  41, 

Dec.  771.  93  Am.  Dec.  54. 

«  (1856)  41  Me.  383. 

260 


Cliap.   II.J  EXECUTION    OF    SEALED    LN8TBUMENT8.  §  428. 

is  difficult  to  perceive  any  sound  reason  why,  if  one  man  may 
authorize  another  to  act  for  him  and  bind  him,  he  may  not 
authorize  him  thus  to  act  for  and  bind  him  in  one  name  as  well 
as  in  another.  As  matter  of  convenience  in  preserving  testimony, 
it  may  be  well  that  the  names  of  all  the  parties  who  are  in  any 
way  connected  with  a  written  instrument  should  appear  upon  the 
instruments  themselves.  But  the  fact  that  the  name  of  the  agent 
by  whom  the  signature  of  the  principal  is  affixed  to  an  instru- 
ment, appeal's  upon  the  instrument  itself,  neither  proves  nor  has 
any  tendency  to  prove,  the  authority  of  such  agent.  That  must 
be  established  aliunde^  whether  his  name  appears  as  agent,  or 
whether  he  simply  places  the  name  of  his  principal  to  the  instru- 
ment to  be  executed."  This,  however,  was  the  case  of  a  promis- 
sory note  and  not  of  a  deed. 

Again  in  Devinney  v.  Reynolds,*  a  deed  commencing:  "To 
all  to  whom  these  presents  shall  come.  Know  ye  that  Michael 
Hollman  by  William  McAllister,  his  lawful  and  regularly  deput- 
ed attorney  in  fact,  etc.,  grants,"  etc.,  concluded,  "In  witness 
whereof,  the  said  Michael  Hollman,  by  his  attorney  aforesaid, 
hath  hereunto  set  his  hand  and  seal,"  etc.  To  this  were  appended 
the  name  and  seal  of  Michael  Hollman.  Said  the  court :  "  The 
execution  of  the  deed  is  in  proper  form,  and,  indeed,  we  seldom 
see  such  instruments  executed  so  much  in  accordance  with  ap- 
proved precedents.  It  would  be  useless  to  add  the  name  and  seal 
of  the  attorney,  for  it  is  what  it  purports  to  be,  the  deed  of  the 
principal  and  not  the  attorney,  and  therefore  does  not  require 
his  name  and  seal,  but  the  name  and  seal  of  the  principal 
only." 

So  in  Berkey  t>.  Judd,'  a  deed  reciting  that  it  was  made  by  the 
principals  by  their  attorney  in  fact,  was  signed  and  sealed  in  the 
names  of  the  principals,  followed  by  the  words,  "  By  their  attor- 
ney in  fact."  The  court  said :  "As  respects  the  execution  of  a 
deed  by  an  attorney  in  fact,  although  it  is  usual  and  better  for 
him  to  sign  the  name  of  his  principal,  and  to  add  thereto  his  own 
signature,  with  proper  words  indicating  that  the  act  is  done  by 
him  as  such  attorney,  yet  it  is  not  in  all  cases  necessary  that  he 
should  so  append  his  own  name.  When  the  deed  on  its  face 
purports  to  be  the  indenture  of  the  principal,  made  by  his  attor- 

>  (1841)  1  Watts  &  SerK.(Penn.)  328.  » (1875)  22  Minn.  287. 

261 


§  429.  THE  LAW  OF  AGENCY.  [Book  IIL 

ney  in  fact,  therein  designated  by  name,  it  may  be  properly  exe- 
cuted by  such  attorney  by  his  subscribing  and  affixing  thereto 
the  name  and  seal  of  his  principal  alone.'  In  this  case  the  deed 
purports  on  its  face  to  be  the  indenture  of  the  principals,  and 
not  that  of  the  agent.  It  fully  discloses  that  it  was  made  for 
them  and  in  their  name  by  their  attorney  in  fact  who  had  full 
authority  so  to  do.  Its  execution  was  properly  acknowledged  by 
him  as  such  attorney  in  fact,  and  for  and  on  behalf  of  his  said 
principals.  The  neglect  to  sign  his  own  name  to  the  words  '  by 
their  attorney  in  fact'  was  a  purely  technical  omission  devoid  of 
any  legal  effect  whatever." 

In  both  of  these  cases,  however,  it  will  be  noticed  that  the 
fact  that  the  deed  was  executed  by  an  agent  appeared  from  the 
face  of  the  instruments. 

In  Wilks  V.  Back,  *  heretofore  referred  to,  where  the  signa- 
ture to  the  instrument,  which  was  an  arbitration  bond,  was ; 
"  For  James  Browne,  Mathias  Wilks,"  (Seal).  Lawrence,  J. 
said :  "  Here  the  bond  was  executed  by  Wilks  for  and  in  the 
name  of  his  principal ;  and  this  is  distinctly  shown  by  the  manner 
of  making  the  signature.  Not  even  this  was  necessary  to  be 
shown  ;  for  if  Wilks  had  sealed  and  delivered  it  in  the  name  of 
Browne,  that  would  have  been  enough  without  stating  that  he 
had  so  done." 

Where  the  deed  is  to  be  signed  in  the  presence  and  by  the 
direction  of  the  principal,  mere  parol  authority  is,  as  has  been 
seen,'  sufficient ;  and  in  such  case  there  need  be  nothing  in  the 
deed  to  indicate  that  the  signature  was  set  by  an  agent  and  not  by 
the  principal. 

§  429.  Same  Subject— How  in  Reason.  While  the  rule  of 
Wood  -y.  Goodridge  is  undoubtedly  well  founded  in  convenience 
and  propriety,  yet  it  is  difficult  in  reason  to  perceive  why  even  in 
those  cases  where  nothing  whatever  appears  upon  the  face  of  the 
instrument  to  indicate  it,  it  may  not  be  shown  by  evidence 
aliunde  that  it  was  in  fact  executed  by  an  agent.  It  cannot  be 
said  that  this  is  to  contradict,  add  to  or  vary  the  deed  by  parol 
evidence,  for  its  legal  effect  remains  the  same,  and  it  is  none  the 

«  Citing  Devinney  e.    Reynolds,  1  "2  East,  142. 

Watts*  Serg.  (Penn.)  328;  and  For-  »  See  anU,  §  98. 

Byth  V.  Day,  41  Me.  883. 

262 


Cliap.  II.]  EXECUTION    OF    SEALED   INSTEUMENTS.  §  430.  ■ 

less  afterward  what  it  purported  to  be  before, — the  deed  of  the 
principal.  Neither  can  it  be  said  that  in  one  case  there  is,  while 
in  the  other  there  is  not,  evidence  of  the  agency.  In  either  event 
the  agency  must  be  proved  as  a  fact.  It  cannot  be  established  by 
mere  recitals  of  authority  or  by  any  pretence  of  acting  in  that 
capacity. 

§  430.  Parol  Evidence  not  admissible  to  discharge  Agent. 
Where  the  deed  upon  its  face  is  the  deed  of  the  agent,  parol 
evidence  is  not  admissible  to  discharge  the  agent  by  showing  that 
it  was  intended  or  understood  to  be  the  deed  of  the  principal,* 
but  where  the  deed  is  ambiguous,  parol  evidence  may  be  resorted 
to,  to  show  who  was  in  fact  the  party  intended  to  be  charged.* 

»  Willis  V.  Bellamy,  52  N.  T.  Super.  Y.)  851;  Briggs  t.  Partridge.  64  N.  T. 

Ct  873;  Higgins  v.  Senior,  8  M.  &  W.  357,  31  Am.  Rep.  617.    See  thia  sub- 

834;  Beckam  «.  Drake,  9  M.  &  W.  79;  ject    fully    discussed    In    following 

Leadbitter  v.  Farrow,  5  M.  «&  8.  845;  chapter. 

Spencer  «.  Field,  10  Wend.   (N.  Y.)  •  Shuetze    v.    Bailey,    40   Mo.  69; 

88;  Townsend  v.  Hubbard,  4  Hill  (N.  Smith  v.  Alexander,  31  Mo.  193. 

263 


§431. 


THE   LAW    OF   AGENCY. 


[Book  IIL 


CHAPTER    III. 


OF  THE  EXECUTION  OF  SIMPLE  CONTRACTS. 


§  481.  Purpose  of  this  Chapter. 

II.  Of  thk   Exkctttion    op    Neoo- 

TIABLE    PaPBK. 

433.  In  general— The  proper  Man- 
ner. 

433.  Same  Subject— General  Rule. 

434.  Same  Subject — Not  necessary 

that  Agent's  Name  appear. 

435.  Not  enough  that  Principal  be 

named  only  in  Body  of  In- 
strument. 

436.  Same  Subject— Where  Intent  to 

charge  Principal  is  manifest. 

437.  Same  Subject — Other  Cases. 

438.  Where  no  Principal  is  disclos- 

ed, Agent  is  bound  notwith- 
standing he  signs  as  "Agent." 

439.  Negotiable  Paper  drawn  pay- 

able to  an    Agent   and   in- 
dorsed by  him. 


%  440.  How  when  made   by  Public 

Agents, 
441.  Admissibility    of    parol    Eri- 

dence  to  show  Intent. 
443.  Same  Subject  —  What  Rules 

applied. 

443.  Same  Subject—The  true  Rule. 

444.  Further  of  this  Rule. 

II.    Of  the  Execution  of  otheb 
SIMPLE  Contracts. 

445.  The  proper  Manner. 

446.  Intention  of  the  Parties    the 

true  Test. 

447.  Agent  may   bind  himself  by 

express  Words. 

448.  Same  Subject  —  Contrary  In- 

tention manifest. 

449.  The    Admissibility   of    parol 

Evidence  to  show  Intent. 


§431.  Pxirpose  of  this  Chapter.  It  is  intended  in  this  chap- 
ter to  discuss  the  manner  of  executing  contracts  not  under  seal, 
including  therein  such  contracts  whether  written  or  unwritten. 
And  as  there  are  some  special  rules  applicable  to  the  execution 
of  negotiable  instruments,  that  subject  will  first  be  separatelj 
considered. 


OF  THE  EXEOUnON  OF  NEGOTIABLE  PAPER. 

§  432.  In  general— The  proper  Manner.  Negotiable  paper 
being  intended  to  circulate  in  the  commercial  world  as  the  repre- 
sentative of  money,  it  is  highly  important  that  the  character  and 
liability  of  the  parties  to  it,  shall  be  disclosed  with  reasonable 
certainty  upon  the  face  of  the  paper  itself.     In  no  class  of  instror 

264 


Chap.  III.]  BXEOUTION   OF    8IMPLB    0ONTKACT8.  §  432. 

merits  is  uncertainty,  or  ambiguity,  or  the  necessity  of  making 
outside  inquiry,  so  destructive  to  its  mission,  as  in  this. 

The  method  approved  in  the  execution  of  instruments  under 
seal  can  with  great  propriety  be  adopted  here.  Thus  if  the  bill 
or  note  be  drawn,  accepted  or  indorsed,  "  A  B,  by  0  D,  his 
attorney  or  agent,"  or  "  A  B,  by  his  attorney  or  agent  C  D," 
there  can  be  no  question  as  to  who  is  the  party  to  be  charged. 
"A  B  by  C  D  "  is  also  unequivocal,  though  not  so  full.' 

These  forms,  however,  are  not  imperative.  Thus,  "CD 
agent  for  A  B,"  "CD  for  A  B,"  and  "  For  A  B,  C  D"  are  now 
quite  generally  regarded  as  sufficiently  indicative  of  the  intent, 
for  although  "  agent  for  "  a  particular  person  or  corporation  may 
either  designate  the  general  relation  which  the  person  signing 
holds  to  another  party,  or  show  that  the  particular  act  in  question  is 
done  in  behalf  of  and  as  the  very  contract  of  that  other,  yet  the 
court,  if  such  is  manifestly  the  intention  of  the  parties  will  con- 
Btrue  the  words  in  the  latter  sense,* 

"Pro  A  B,  C  D  "  is  to  the  same  effect  and  is  also  sufficient.' 
"  Agent  of "  however  is  not  the  equivalent  of  "  agent  for,"  but 
is  mere  descriptio personcB  \  *  and  even  the  words  "agent  for" 
must  under  some  circumstances  also  be  held  to  be  merely  a  de- 
scription of  the  person,  as  where  they  are  not  followed  by  the 
proper  name  of  the  principal.  Thus  a  note  signed  "D.  H., 
agent  for  the  Churchman  "  (the  name  of  the  newspaper  which 
the  agent  carried  on  in  the  behalf  of  his  principal),  was  held  to 
be  the  note  of  D.  H.,  and  not  of  his  principaL' 

•Tucker  Mnf'g  Co.  t>.  Fairbanks,  6a.  86.  Contra:  Oflfutt  9.  Ayers,  7 
98  Mass.  101 ;  Bradlee  «.  Boston  Glass  T.  B.  Monr.  (Ky.)  856;  Dawson  ». Cot- 
Co.,  16  Pick.  (Mass.)  847;  Weaver  «.  ton,  26  Ala.  591.  But  see:  Webb  v. 
Carnall,  85  Ark.  198;  Ballou  v.  Tal-  Burke,  5  B.  Monr.  (Ky.)  51;  Cook  e. 
bot,  16  Mass.  461;  Jefts  v.  York,  4  Sanford,  3  Dana  (Ky.)  237;  Shuetze 
Cush.  (Mass.)  372;  Page*.  Wight,  14  t.  Bailey.  40  Mo.  69;  Garrison  «. 
Allen  (Mass.)  182;  Barlow  «.  Congre-  Combs.  7  J.  J.  Marsh.  (Ky.)  84,  22 
gational  Society,  8  Allen  (Mass.)  460;  Am.  Dec.  120. 
Emerson  v.  Providence  Mnf'g  Co., 12  «Long  «.  Colburn,  11  Mass.  97,  6 
Mass.  237,  7  Am.  Dec.  66.  Am.  Dec.  160. 


« Ballou  V.  Talbot,  16  Mass.  461 
Tucker  «.  Fairbanks,  98  Mass.  101 
Rawlings  v.  Robson,  70  Ga.  595 
Jefts  «.   York,  4  Cush.  (Mass.)  872 


*  Tucker  Mnf'g  Co.  t».  Fairbanks, 
supra;  Haverhill  Ins.  Co.  v.  Newhall, 
1  Allen  (Mass.)  130. 

«  De  Witt  V.  Walton,  9  N.  Y.  671; 


Bartlett  v.  Tucker,  104  Mass.  336.  6      see  also  Shattuck  v.  Eastman,  12  Al- 
Am.  Rep.  240;  Tiller  e.  Spradley,  39      len  (Mass.)  369. 

265 


§  433.  THE   LAW   OP   AGENCY.  [Book   III. 

In  Colorado,  after  an  exhaustive  examination,  the  sufficiency  of 
the  form  "  0  D,  agent  for  A  B,"  was  denied  altogether.' 

So  "  A  B,  C  D,  agent,"  has  been  held  to  be  sufficient.  Thus 
where  a  note  reading  "  we  promise  to  pay,"  was  signed  "  Mass- 
achusetts Steam  Heating  Company,  L.  S.  Fuller,  treasurer,"  the 
court  said  :  "  The  name  of  the  company  is  signed  to  the  note. 
This  signature  could  not  be  made  by  the  corporation  itself  and 
must  have  been  written  by  some  officer  or  agent.  It  was  mani- 
festly proper  that  some  indication  should  be  given  by  whom  the 
signature  was  made,  as  evidence  of  its  genuineness ;  and  Fuller 
added  his  own  name,  with  the  designation  of  his  official  charac- 
ter. And  the  whole  taken  together  shows  it  to  be  the  signature 
of  the  Massachusetts  Steam  Heating  Company  and  not  of  Full- 
er." » 

§  433.  Same  Subject— General  Rule.  It  has  been  said  by  a 
learned  judge,  in  dealing  with  this  question,  that  "  In  order  to 
exempt  an  agent  from  liability  upon  an  instrument  executed  by 
him  within  the  scope  of  his  agency,  he  must  not  only  name  his 
principal,  but  he  must  express  by  some  form  of  words  that  the 
writing  is  the  act  of  the  principal  though  done  by  the  hand  of 
the  agent.  If  he  expresses  this,  the  principal  is  bound,  and  the 
agent  is  not.  But  a  mere  description  of  the  general  relation  or 
office  which  the  person  signing  the  paper  holds  to  another  person 
or  corporation,  without  indicating  that  the  particular  signature  is 

•  Tannatt  e.  Rocky  Mountain  Na-  Sawmut    Ins.   Co.,   3  Allen    (Maas.) 

tional  Bank.  1  Colo.  278,  9  Am.  Rep.  215;  Atkins  v.  Brown,  59  Me.  90. 
250  But  in  a  recent  Iowa  case  where  a 

"Draper   «.    Massachusetts  Steam  note  read  "we  promise  to  pay  "and 

Heating  Co.,  5  AUen (Mass.)  333.     So  was    signed    "Independence    M'fg 

a  note  reading  "we  promise  to  pay  Co.,  B.   J.   Brownell,   Prea.    D.   B. 

•    •    »    at  office    Belfast   Foundry  Sanford,   Sec'y."   it  was  held   that 

Co,"  and  signed,  "Belfast  Foundry  Brownell  was  pnwa/acie  liable  indi- 

Company,  W.  W.  Castle,  President,"  vidually,  but  it  was  intimated  that 

binds  the  company.    Castle  e.   Bel-  this  result  could  have  been  controlled 

fast  Foundry  Co.   72  Me.  167;  so  a  by  parol  evidence  showing  a  contrary 

note  reading  "we  promise  to  pay,"  intent.     Heffnert?.  Brownell,  70 Iowa, 

and  signed   "  Pioneer  Mining  Com-  591,  31.  N.  W.  Rep.  947.     So  a  note 

pany,  John  E.  Mason,  Supt."  may  be  reading  "we   promise    to  pay,"  and 

shown  by  parol  to  have  been  intended  signed,  "  English  S.  M.  Co.,  H.  Patt- 

to   bind    the    Company.      Bean   v.  berg,  Manager,"  was  held  not  to  be 

Pioneer  Min.   Co.,   66  Cal.   451,  56  the  note  of  the  company.     Chase  «. 

Am.  Rep.   106.    See  also  the  same  Pattberg,  12  Daly  (N.  Y.)  171. 
effect  as  the  Draper  case;  Abbott  v. 

266 


Chap,  in.]  EXECUTION   OF   SIMPLE   0ONTBA0T8.  §  435. 

made  in  the  execution  of  the  office  and  agency,  is  not  sufficient 
to  charge  the  principal,  or  to  exempt  the  agent  from  personal  lia- 
bility." > 

§  434.  Same  Subject— Not  necessary  that  Agent»8  Name  appear. 
Although  reasons  of  convenience  and  propriety  render  it  highly 
desirable  that  the  fact  that  the  note  or  bill  is  executed  in  the 
name  of  the  principal  by  the  agent,  should  appear  on  the  face  of 
the  instrument,  it  cannot  be  regarded  as  indispensable,  and  the 
agent  may  sign  the  principal's  name  alone  without  adding  any- 
thing to  disclose  the  agency.* 

§  435.  Not  enough  that  Principal  be  named  only  in  Body  of 
Instrument.  It  is  not  enough  to  relieve  the  agent  that  the  per- 
son, for  whom  the  promise  is  made  or  the  bill  drawn,  be  named  in 
the  body  of  the  instrument  alone.  In  such  a  case,  as  a  rule,  it 
will  be  presumed  that  only  the  person  who  signed  intended  to  be 
charged,  unless  there  is  a  clear  indication  to  the  contrary. 

Thus  where  the  form  of  the  bill  was,  "  Forty  days  after  date, 
pay  to  the  order  of  T.  L.  fifty  pounds,  value  received,  which  place 
to  the  account  of  the  Durham  bank,  as  advised,"  signed  "  C.  F.," 
it  was  held  to  be  the  bill  of  C.  F.,  though  he  was  known  at  the 
time  to  be  the  agent  of  the  Durham  bank.  Said  Lord  Ellenbo- 
ROUGH  :  "  Is  it  not  an  universal  rule  that  a  man  who  puts  his  name 
to  a  bill  of  exchange  thereby  makes  himself  personally  liable,  un- 
less he  states  upon  the  face  of  the  bill  that  he  subscribes  it  for 
another,  or  by  procuration  of  another,  which  are  words  of  exclu- 
sion %  Unless  he  says  plainly  '  I  am  the  mere  scribe,'  he  becomes 
liable.  Now  in  the  present  case,  although  the  plaintiff  knew  the 
defendant  to  be  the  agent  of  the  Durham  bank,  he  might  not  know 
but  that  he  meant  to  offer  his  own  responsibility.  Every  person, 
it  is  to  be  presumed,  who  takes  a  bill  of  the  drawer,  expects  that 
his  responsibility  is  to  be  pledged  to  its  being  accepted.  Giving 
full  effect  to  the  circumstance  that  the  plaintiff  knew  the  defen- 
dant to  be  agent,  still  the  defendant  is  liable,  like  any  other 
drawer  who  puts  his  name  to  a  bill  without  denoting  that  he  does 
it  in  the  character  of  a  procurator."  * 

•  GitAY,  J.,    in  Tucker  Mn'fg  Co.  »  Leadbitter  v.  Farrow,  5  Maule  & 

f>.  Fairbanks',  98  Mass.  101.  Bel.   345.    To  the  same  effect    see: 

» First  National  Bank  v.  Gay,  63      Penkivil  v.   Connell.   5  Exch.    881; 
Mo.  33,  21  Am.  Rep.  430;  Forsyth  v.      May  hew  ».  Prince,  11  Mass.  64. 
Day,  41  Me.  382. 

267 


I  435.  THE    LAW   OF   AGENCY.  [Book  III. 

And  ao-ain  where  a  note  was  executed  in  these  words :  "  For 
value  received,  we,  the  subscribers,  jointly  and  severally  promise 
to  pay  Messrs.  J.  and  T.  B.  or  order,  for  the  Boston  Glass  Manu- 
factory, thirty-five  hundred  dollars,  on  demand,  with  interest," 
and  was  signed,  "  J.  H.,  S.  G.,  C.  F.  K.,"  it  was  held  to  be  the  note 
of  the  signers  and  not  of  the  manufactory.  Chief  Justice  Shaw, 
in  delivering  the  opinion  of  the  court,  said;  "The  main  question 
in  the  present  case,  arises  from  the  form  of  the  contract ;  and 
the  question  is,  whether  in  this  form  it  binds  the  persons  who 
signed  it,  or  the  company  for  whose  use  the  money  was  borrowed. 
As  the  form  of  words  in  which  contracts  may  be  made  and 
executed,  are  almost  infinitely  various,  the  test  question  is,  wheth- 
er the  person  signing  professes  and  intends  to  bind  himself,  and 
adds  the  name  of  another  to  indicate  the  capacity  or  trust  in 
which  he  acts,  or  the  person  for  whose  account  his  promise  is 
made ;  or  whether  the  words  referring  to  a  principal  are  intended 
to  indicate  that  he  does  a  mere  ministerial  act  in  giving  effect  and 
authenticity  to  the  act,  promise  and  contract  of  another.  Does 
the  person  signing  apply  the  executing  hand  as  the  instrument 
of  another,  or  the  promising  and  engaging  mind  of  a  contract- 
ing party  ? "  * 

And  in  a  subsequent  case  in  the  same  court,  it  is  said :  "  It 
seems  to  be  well  settled  in  this  court,  and  supported  by  English 
authority,  that  the  mere  insertion  of  '  for'  or  'for  and  in  behalf 
of '  the  principal,  in  the  body  of  the  note  does  not  make  it  the 
contract  of  the  principal  if  signed  by  the  mere  name  of  the  agent 
without  addition."  * 

In  accordance  with  the  same  rules,  it  was  held  that  a  note 
running  "  we,  the  trustees  of  the  Methodist  Episcopal  Church," 
promise,  etc.,  and  signed  by  the  trustees  as  individuals,  with  no- 
thing to  indicate  that  they  signed  as  trustees,  was  their  indivi- 
dual promise;*  and  the  same  ruling  was  made  where  a  note 
running  "  we,  the  directors  of  the  Big  Eagle  and  Harrison  Turn- 

'  Bradlee  v.  Boston  Glass  Manufac-  Am.  Rep.  71 ;  but  see  the  decision  of 

tory,  16  Pick.  (Mass.)  347;  See  also  the  same  court  where    the    trustees 

Morell    e.   Codding,  4  Allen  (Mass.)  added  that  word  to  their  signatures, 

403  Powers  v.  Briggs,  79  111.  493,  22  Am. 

« Barlow  «.  Congregational  Socie-  Rep.  175.     See    also    Burlingame  c. 

ty.  8  Allen  (Mass.)  460.  Brewster,  79  111.   615,  22  Am.   Rep. 

'»  Hypes  t>.   Griffin,  89  111,  134,  31  177. 

268 


Chap.  III.]  EXECUTION   OF   SIMPLE   OONTBAOTS.  §  436. 

pike  Company  promise,"  was  signed  by  those  officers  in  their  in- 
dividual names.' 

But  a  contrary  conclusion  was  reached  in  Maine,  where  a  note, 
besfinninff  "  We,  the  subscribers,  for  the  Carmel  Cheese  Manu- 
facturing  Company,  promise  to  pay,"  etc.,  was  signed  by  the 
makers  in  their  individual  name.*  But  this  conclusion  was  based 
largely  upon  the  provisions  of  a  statute  of  that  State,  which  as 
the  court  say  in  an  earlier  case :  •  "  was  passed  soon  after  the  de- 
cision of  Stinchfield  v.  Little  (to  which  reference  has  been  made 
before),  and  was  undoubtedly  intended  to  modify  the  technical 
rule  of  the  common  law  as  declared  by  the  court  in  that  case." 
That  statute  provides  that  "  deeds  and  contracts,  executed  by  an 
authorized  agent  of  an  individual  or  corporation  in  the  name  of 
the  principal,  or  in  his  own  name  for  his  principal,  are  to  be  re- 
garded as  the  deeds  and  contracts  of  such  principal,"  "  'For  his 
principal,' "  says  the  court,  "  are  the  words  used  in  our  statute 
above  cited,  in  regard  to  the  proper  execution  of  a  contract  by 
an  agent ;  and  '  for '  when  so  used,  means  '  in  behalf  of.'  *  * 
The  words  used  in  the  body  of  the  note,  tending  to  show  the 
meaning  of  the  parties,  should  have  the  same  force  and  effect  as 
if  following,  or  written  against  the  defendants'  signatures." 

§  436.  Same  Subject— Where  Intent  to  charge  Principal  is 
manifest.  But  where  the  body  of  the  instrument  discloses  that  it 
is  evidently  executed  for  or  in  behalf  of  a  principal  therein 
named,  and  the  person  signing  adds  to  his  signature  such  words 
as  indicate  that  he  was  acting  in  a  representative  and  not  in  a 
personal  capacity,  the  instrument  will  be  deemed  to  be  the  obli- 
gation of  the  principal.  Thus  where  the  contract  ran  "  We,  the 
undersigned  committee  for  the  first  school  district,  promise  in 
behalf  of  said  district,"  etc.,  and  was  signed  with  the  individual 
names  of  the  committee  with  the  addition  of  the  word  "  commit- 
tee," it  was  held  that  the  intention  to  bind  the  district  was  appar- 
ent upon  the  face  of  the  contract  and  that  the  members  of  the 
committee  were  not  personally  bound.*  For  the  same  reason, 
where  a  check  with  the  words  "  JEtna  Mills"  printed  on  the  mar- 
gin was  given  in  payment  of  a  debt  due  from  the  mills  and  was 

»  Pack  ».  White,  78  Ky.  243.  Am.  Rep.  23.    See  also  Purinton  t>. 

«  Simpson  «.  Garland,  72  Me.  40,  89      Insurance  Co.  73  Me.  33. 
Am.  Rep.  297.  *  Andrews  o.  Estes,  11   Me.  367,  26 

»  Nobleboro  c.  Clark,  68  Me.  87,  38      Am.  Dec.  531. 

269 


§  436.  THE   LAW    OF    AGENCY.  [Book  III. 

signed  "I.  D.  F.,  Treasurer,"  the  court  held  it  to  be  manifestly  tlie 
check  of  the  mills  and  not  the  personal  check  of  F.'  And  so 
where  a  note  beginning  "  We  promise"  and  signed  "W.  B.  S., 
"  Sec'j,"  had  impressed  upon  it  the  seal  of  the  company  containing 
the  words  "  Neal  Manufacturing  Co.,  Madison,  Ind.,"  of  which 
company  S.  was  the  secretary,  it  was  held  to  be  the  note  of  the 
company  and  not  of  S.*  And  the  same  effect  was  given  to  the  seal 
of  the  company  in  Oregon  and  Illinois.  Thus  a  note  stating, 
"We  promise  to  pay"  etc.,  signed  "  J.  I.,  Pres.,  J.  J.  L,  Sec.  Q. 
M.  Co.,"  which  had  impressed  upon  it  the  seal  of  the  company 
containing  the  words,  '*  Granger  Market  Co.,"  is  the  note  of  the 
company  and  not  of  the  officers ;'  and  so  is  a  note  reading  "  We 
promise  to  pay,"  etc.,  signed  "  S.  L.  K.,  Pres.,  Chicago  Ready 
Roofing  Co.,  W.  H.  K.,  Sec'y, "  impressed  with  the  seal  of  the 
"  Chicago  Ready  Roofing  Company."  *  But  a  different  conclu- 
sion was  reached  in  England.' 

Again,  a  note  reading,  "  We  promise  to  pay,"  etc.,  "  on  account 
of  the  London  and  Bermingham  Iron  Hardware  Company,"  and 
signed  "J.  M.,  H.  W.,  J.  W.,  Directors,"  and  countersigned  "K 
G.,  Secretary,"  was  held  to  be  the  note  of  the  company  ;•  a  note 
beginning  "  I,  the  subscriber,  treasurer  of  the  Dorchester  Turn- 
pike Corporation  promise,"  etc.,  signed  "  A.  B.,  treasurer  of  the 
Dorchester  Turnpike  Corporation,"  was  held  to  be  the  note  of 
the  corporation  and  not  of  the  treasurer ;  '  a  note  reading,  "  the 
president  and  directors  of  the  Woodstock  Glass  Company  prom- 
ise," etc.,  and  signed  "  W.  H.,  President,"  binds  the  company  and 
not  the  president  individually  ; '  a  note  beginning  "  we  as  Trus- 
tees of  the  Amador  and  Nevada  Wagon  Road  Company  prom- 
ise," etc.,  and  signed,  "  J.  M.  K.,  L.  JS".,  J.  T.,  Trustees,  of  the 
Amador  and  Nevada  Wagon  Road  Company,"  is  the  note  of  the 
company  and  not  of  the  trustees ;  •  and  a  note  beginning  "  we, 
as  the  trustees  of  the  Methodist  church,  promise  to  pay,"  etc.. 


•  Carpenter     v.    Farnsworth,     106  »  Button  «.  Marsh,  L.  R.  6  Q.  B. 
Mass    561,  8  Am.  Rep.  360.  861. 

«  Means  v.  Swormstedt,  33  Ind.  87,  •  Lindus  t>.  Melrose,  2  Hurl.«S;  Nor. 

3  Am.  Rep.  330.  293. 

8  Guthrie  «.  Imbrie,12  Oregon.  183,  'Mann  ».  Chandler,  9  Mass.  335. 

63  Am.  Rep.  331,  6  Pac.  Rep.  664.  «  Mott  v.  Hicks,  1  Cow.  (N.T.)  513; 

*  Scanlan  v.  Keith,  103  111.  634,  39  13  Am.  Dec.  550. 

Am.  Rep,  303.  »  Blanchard  v.  KauU,  44  CaL  440. 

270 


Chap.  III.]  EXECUTION    OF    SIMPLE    C0NTEA0T8.  §  437. 

and  Bigned,  "  J.  W.  K.,  J.  A,  P.,  K.  G.  C,  Trustees,"  is  the  note 
of  the  church  and  not  of  the  trustees.' 

A  note  reading,  "  we,  the  trustees  of  the  First  Free  Will  Bap- 
tist Society  of  Chicago,  promise,"  etc.,  and  signed  "  Trustees  of 
the  First  Free  "Will  Baptist  Society,  of  Chicago,  Illinois,  A.  P. 
D.,  P.  W.  G.,"  and  seven  others,  was  held  to  be  the  note  of  the 
society ;  *  while  a  note  reading  "  we,  the  trustees  of  the  Seventh 
Presbyterian  Church,  promise,"  etc.,  and  signed  "  A.  H.  B.,  L. 
B.  K.,  J.  C.  and  F.  D.  M.,  Trustees,"  was  held  by  the  same  court 
to  be  the  individual  note  of  the  trustees,  and  not  of  the  society; ' 
the  distinction  being  based  upon  the  fact  that  in  the  first  case  the 
exact  corporate  name  of  the  society,  i,  e.  "  The  Trustees  of  the 
First  Free  Will  Baptist  Society,  of  Chicago,"  had  been  used  both 
in  the  body  of  the  note  and  in  the  signature,  while  in  the  second 
case  it  had  not  been,  the  corporate  name  there  being  "  Trustees 
of  the  Society  of  the  Seventh  Presbyterian  Church,  of  Chicago." 
The  distinction  here  made  cannot  be  reconciled  with  many  of 
the  cases  cited  above. 

§  437.  Same  Subject— Other  Cases.  A  bill  or  note  drawn  by 
an  agent  with  such  directions  or  expressions  upon  its  face  as 
indicate  that  it  is  drawn  upon,  or  is  to  be  charged  to,  the  account 
of  his  principal,  and  which  is  signed  by  the  agent  with  such 
additions  as  to  disclose  that  he  is  acting  in  his  character  as  agent, 
will  be  deemed  to  be  a  charge  upon  the  principal  and  not  upon 
the  agent. 

And  it  has  been  held  that  it  is  not  necessary  that  the  bill  or 
note  itself  should  unequivocally  disclose  the  name  of  the  princi- 
pal in  order  to  exonerate  the  agent ;  but  that  it  will  be  sufficient 
if  enough  appears  upon  the  face  of  the  transaction  to  put  a  pru- 
dent man,  before  taking  the  bill  or  note,  upon  inquiry.* 

Thus  a  bill  drawn  by  an  agent  upon  his  principal  concluding 
"and  charge  the  same  to  the  account  of  your  agency  at  Natchez," 
and  signed  "J.  D.  H.,  Agent "  sufficiently  indicates  that  the  agent 
was  acting  in  a  representative  character ;  •    so  a    bill  headed 

»  Leach  ».  Blow,  8  Smedes  &  M.  'Powers  «.  Briggs,  79  Dl.  493,  23 
(Miss. )  221.  Am.  Rep.  175. 

•New    Market    Savings    Bank    v.  *  Davis  ?>.  Henderson,  25  Miss.  549, 

Gillett,  100  111.  254,  39  Am.  Rep.  59  Am.  Dec.  229;  Mott  v.  Hicks,  1 
89.  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550. 

■  Davis  «.  Henderson,  supra. 

271 


§  437.  THE    LAW    OF    AGENCY.  [Book  111. 

"  Office  of  Tioga  Navigation  Company,"  concluding,  "  charge  to 
motive  power  and  account,"  and  signed,  J.  R.  W.,  "  Pres.  T.  N. 
Oo.,"  purports  upon  its  face  to  be  the  bill  of  the  corporation  and 
not  the  individual  bill  of  the  signer;'  and  a  draft  headed  "  New 
England  Agency  of  the  Pennsylvania  Fire  Insurance  Company," 
having  the  words  "  Foster  &  Cole,  General  Agents  for  the  New 
England  States"  printed  in  the  margin,  and  appearing  on  its 
face  to  be  drawn  upon  said  insurance  company  in  payment  of  a 
claim  against  it,  is  the  draft  of  the  company  and  not  of  Foster  & 
Cole,  although  it  is  signed  by  them  in  their  own  names ; '  and  a 
bill  headed  "  Office  of  Belleville  Nail  Mill  Co.,"  and  concluding, 
<'  charge  same  to  account  of  Beljeville  Nail  Mill  Co.,  W.  C.  B., 
Pres.,  J,  C.  W.,  Sec'y,"  is  the  bill  of  the  company." 

So  where  a  draft  was  headed  "  Pompton  Iron  Works "  and 
directed  that  the  amount  should  be  placed  "  to  the  account  of 
Pompton  Iron  Works,"  it  was  held  to  be  clearly  the  draft  of  the 
Iron  Works  and  not  of  Burtt,  though  it  was  signed  "  W.  Biirtt, 
Agt,"  *  and  a  bill  headed  "Adams  &  Co.'s  Express  and  Banking 
House,"  drawn  on  Adams  &  Co.,  concluding,  "  and  charge  same 
to  account  of  this  office,"  and  signed  "  C.  P.  N.  per  Gr.  W.  C, 
Ag'ts,"  is  the  bill  of  the  company.* 

So  where  a  bill  headed  "  Office  of  Portage  Lake  Manufactur- 
ing Company  "  and  concluding,  "  charge  the  same  to  account  of 
the  company,  I.  R.  Jackson,  Agt.,"  was  drawn  upon  "  E.  T. 
Loring,  Agent,"  and  was  accepted  by  him  in  the  same  manner, 
it  was  held  in  Massachusetts  that  so  far  as  the  drawer,  Jackson, 
was  concerned,  there  was  enough  upon  the  face  of  the  instru- 
ment to  show  that  the  bill  was  drawn  as  agent  of  the  company, 
but  it  was  further  held  that  this  conclusion  exhausted  the  opera- 
tion of  the  words  showing  that  intent,  and  that  they  could  not 
be  nsed  again  to  indicate  that  the  acceptance  of  Loring  was  made 
in  the  same  capacity.* 

But  on  the  other  hand,  in  accordance  with  cases  cited  in  a  pr©- 

lOlcott  V.  Tioga  R.  R.  Co.,  27  N.  « Fuller  «.  Hooper,  8  Gray  (Mass.) 

Y.  546,  84  Am.  Dec.  298.  834. 

«Chipmant».  Foster,  119. Mass.  189;  »Sayre  v.  Nichols,  7  Cal.  635,  68 

to    same    effect,    Tripp  v.  Swanzey  Am.  Dec.  280. 

Paper  Co.,  13  Pick.  (Mass.)  291.  «  Slawson  v.  Loring,  5  AUeu  (Mass.) 

•Hitchcock  V.  Buchanan,  105  U.  8.  840,  81  Am.  Dec.  750. 
416. 

272 


Chap.  III.]  EXECUTION    OF    SIMPLE   00NTEA0T8.  §  438. 

ceding  section,  a  draft  concluding,  "  and  charge  the  same  to  the 
account  of  Proprietors  Pembroke  Iron  Works.  Joseph  Barrell," 
was  held  to  be  the  draft  of  Barrell  because  he  had  not  added 
anything  to  his  signature  to  indicate  that  he  was  acting  in  a  rep- 
resentative character.* 

§  438.  When  no  Principal  is  disclosed,  Agent  is  bound  not- 
withstanding he  signs  as  "Agent."  Where,  however,  no  princi- 
pal is  disclosed  upon  the  face  of  the  instrument,  for  whom  or  in 
whose  behalf  it  appears  to  have  been  made,  the  agent  will  be 
held  personally  bound  notwithstanding  the  fact  that  he  adds  the 
word  "  agent,"  "  trustee,"  "  president,"  etc.,  to  his  name.  It  is 
to  be  presumed  that  he  intended  to  bind  some  one  by  the  instru- 
ment, and  as  he  has  used  no  apt  words  to  bind  the  principal,  and 
no  other  contracting  party  appears,  he  must  be  held  to  have  in- 
tended to  charge  himself,  and  the  words  "  agent,"  "  trustee,"  etc., 
will  be  regarded  as  mere  descriptio  yersonm. 

Thus  a  note  in  the  usual  form,  "  I  promise  to  pay,"  etc.,  signed 
«  A.  B.,  Treas.  St.  Paul's  Parish,"  *  C.  H.,  President  of  the  Dor- 
chester Avenue  Railroad  Company ;"  '  "  J.  S.  E.,  Trustee  of 
Sullivan  Railroad ;"  *  «  A.  B.,  Treasurer  of  Eagle  Lodge  ;"  «  «W. 
H.  E.,  Pres.  and  Treas.  Chelsea  Iron  Foundry  Company  ;"•  "  J. 
B.,  Agent  for  Lewis  County ;"  '  or  a  draft  signed  "  W.  P.  C, 
Treas.,"  •  etc.,  with  nothing  in  the  body  of  the  note  to  indicate 
that  the  promise  is  not  the  promise  of  the  signer,  will  be  held  to 
be  the  personal  obligation  of  him  whose  name  is  subscribed,  not- 
withstanding the  addition. 

>  Bank  of  North  America  «.  Hooper,  Robinson  «.  Kanawha  Valley  Bank, 

6  Gray  (Mass.)  567,  66  Am.  Dec.  390;  44  Ohio  St.  441;  Barker  v.  Mechanics' 

and  to  the  same  effect,  is  Newhall  «.  Fire  Ins.   Co.,  3.  Wend.  (N.  Y.)  94; 

Dunlap,  14  Me.  180,  81  Am.  Dec.  45.  Hills  v.  Bannister,  8  Cow.  (N.  Y.)  31; 

aStur'divant  v.  Hull,  59  Me.  173,  8  Pentz  d.   Stanton,    10  Wend.  (N    Y.) 

Am.  Rep.  409;  Mellen  c.  Moore,  68  271;  Savage  ©.    Rix,   9  N.   H.   2G3; 

Me.  390,  28  Am.  Rep.  77.  Chadsey  v.   McCreery,   27  111.    253; 

3  Haverhill  M.  F.  Ins.  Co.  «.  New-  Drake    v.    Flewellen,    33    Ala.    106; 

hall,  1  Allen  (Mass.)  130.  Fowler    e.    Atkinson,    6  Minn.   578; 

<Fiske  V.  Eldridge,  12  Gray  (Mass.)  Rand  w.  Hale,  3  W.  Va.  495,  100  Am. 

474_  Dec.  761;  Collins  t>.  Ins.  Co.,  17  Ohio 

eSeaver*.  Coburn,  lOCush.  (Mass.)  St.  215,  93  Am.   Dec.   612;    Bickford 

824.  «.  First  Nat.    Bank,  43  111.    238,  89 

•  Davis  V.  England,  141  Mass.  587.  Am.  Dec.  436. 

7  Exchange  Bank  v.  Lewis  County,  •  Bank  c.  Cook,  38  Ohio  St.  443. 
28  W.  Va.   273;  to  like  effect,   see, 

18  273 


I  439.  THE   LAW    OF   AGENOT.  [Book    111. 

And,  as  is  said  by  a  learned  judge,  "  Why  should  it  not  be 
sol  That  is  the  plain  and  direct  import  of  the  language  he  uses. 
*  I '  is  not  the  language  of  a  corporation  or  association.  It  is 
that  of  an  individual  signer.  If  a  signer  appends  to  his  signa- 
ture a  description  of  himself  as  agent,  president,  trustee,  or  treas- 
urer of  a  corporation,  it  may  import  a  declaration  on  his  part 
that,  having  funds  of  such  corporation  in  his  possession,  he  is 
willing  to  be  responsible,  and  accordingly  makes  himself  respon- 
sible for  a  debt  of  theirs.  And  this  descriptio  jpersonm  may  aid 
him  in  the  keeping  and  adjustment  of  his  accounts  with  his  dif- 
ferent principals.  But  without  some  words  in  the  contract  im- 
porting that  he  promises  for  or. on  behalf  of  his  principal,  he 
cannot  avoid  the  personal  liability  he  has  assumed."  ' 

What  is  true  of  one  individual  signer  is  also  true  of  several, 
whether  the  form  adopted  be  "  I "  or  "  we  "  promise.  Thus  a 
note  in  the  usual  form  signed  by  several  with  the  addition 
"  vestryman,  Grace  church  "  *  or  "  President  and  Directors  of 
the  P.  and  S.  Cheese  Co.,"  »  or  "  Trustees  of  First  Universalist 
Society,"*  or  "Trustees  of  the  A.  Lodge,"  •  is  the  note  of  the 
individual  signers. 

S  439.  Negotiable  Paper  drawn  payable  to  an  Agent  and 
indorsed  by  him.  Where  a  bill  or  note  is  drawn  payable  to  the 
ao-ent  of  a  private  individual,  and  is  indorsed  by  the  agent,  the 
same  general  rules  apply  to  his  liability  upon  the  indorsement,  as 
where  he  signs  the  bill  or  note  in  the  same  form  as  maker. 

But  where  a  bill  or  note  is  drawn  payable  to  an  individual  as 
an  oflBcer  of  a  corporation,  a  different  rule  has  generally  been 
applied.  In  such  a  case,  the  note  or  bill  is  considered  to  be  in 
reality  payable  to  the  corporation  of  which  he  is  such  officer,  and 

»  Barrows,    J.,   in   Sturdivant  t).  «Burlingame  e.   Brewster,    79  111. 

Hull,  »ufra.  615,  22  Am.  Rep.  177;  to  like  effect, 

« Tilden  t.  Barnard,  43  Mich.  876,  Powers  v.  Briggs,  79  111.  493,  23  Am. 

88  Am.  Rep.  197.  Rep.    175;  Hypes  «.  Griffla,   89   111. 

•  Rendell  n.  Harriman,  75  Me.  497,  134,  31  Am.  Rep.  71;  Barlow  v.  Con- 

46  Am.   Rep.   421.     But  contra,   see  gregational  Society.  8  Allen  (Mass  ) 

Farmers' &  Mechanics' Bank®. Colby,  460;     Coburn   n.   Omega  Lodge.    71 

64   Cal.    ^53,    where   a  note  reading  Iowa,   581;  .Hayes  v.   Brubaker,   65 

"  we  promise,"  and  signed  "G.  A.  C,  Ind.  27. 

Pres.  Pac.  Peat  Coal  Co.,  D.  K.  T.,  sMcClellan  u  Robe,  93   Ind.    298; 

Sec.  ;)7-o  <cOT."washeld  tobe  the  note  Williams  «.  Second  National  Bank, 

of  the  company,  B3  Ind.  237. 

274 


Chap.  III.]  EXECUTION    OF    SIMPLE    C0NTKA0T8.  §  440. 

his  indorsement  of  it  in  the  same  way  is  generally  regarded  as 
the  indorsement  of  the  corporation,  and  not  of  the  officer.  Thus 
where  the  paper  is  drawn  payable  to  the  "  cashier  "  of  a  bank,  or 
to  "A.  B.,  Cashier"  or  to  "A.  B.,  Cas."  or  to  the  order  of  an 
officer  of  the  corporation,  as  to  "  L.  M.,  Pres.  M.  F.  &  M.  Ins. 
Co.,"  the  bank  or  other  corporation  is,  in  the  judgment  of  the 
law,  the  payee,'  and  the  indorsement  of  the  cashier  or  officer 
is  regarded  as  the  indorsement  of  the  corporation  and  not 
the  individual  undertaking  of  the  agent' 

And  the  same  rule  is  reached  where  paper  is  drawn  upon  an  offi- 
cer of  a  corporation  as  such,  as  upon  "A.  B.,  Treasurer"  or  "A.  B., 
Agent,"  and  is  accepted  by  him  in  the  same  form,' 

So  where  a  note  or  bill  payable  to  a  corporation  by  its  corporate 
name  has  been  indorsed  by  an  authorized  agent  or  official,  with 
the  title  of  his  office  appended,  it  is  regarded  as  the  indorsement 
of  the  corporation ;  as  where  a  note  was  payable  to  the  "  Globe 
Mutual  Insurance  Co.  or  order,"  and  was  indorsed  "L.  G., 
President."  * 

§  440.  How  when  made  by  Publio  Agents.  As  has  been  seen, 
in  the  preceding  chapter,"  contracts  made  by  public  agents  while 
acting  in  the  exercise  of  their  public  functions  are  presumed  to 
be  made  in  behalf  of  the  public,  and  are  not  binding  upon  them 
personally  unless  the  intent  to  be  so  charged  is  very  clear. 
Whether  the  same  rule  applies  to  the  execution  of  nego- 
tiable instruments  by  public   agents   is   not   so  clear,  although 

•First  National  Bank  of  Angelica  man,  19  Me.  440;  Vater  v.  Lewis,  86 

V.   Hall,  44  N.  Y.   395,  4  Am.  Rep.  Ind.  288,  10  Am.  Rep.  29. 

698;  Bank  of  New  York  v.  Bank  of  »Hager  v.  Rice,  4  Colo.  90,  34  Am. 

Ohio,  29  N.  Y.  619;  Nichols  v.  Froth-  Rep.  68;  Laflin  &  Rand  Powder  Co.  v. 

ingham,  45  Me.   220,    71   Am.   Dec.  Sinsheimer,  48  Md.  411,  30  Am.  Rep. 

539  472;  Shelton  v.  Darling,  2  Conn.  435; 

2  Bank  of  Genesee  v.  Patchin  Bank,  Amison  v.  Ewing,  2  Cold.  (Tenn.)  366. 

19  N.  Y.  312;  Burnham  v.  Webster,  But  to  the  contrary  are.  Slawson  o. 

19  Me.  232;  Robb  v.  Bank,  41  Barb.  Loring,   5  Allen  (Mass.)  340,    81  Am. 

(N.  Y.)  586;  Mechanics'Bank  «.  White  Dec.  750;  Moss  v.  Livingston,  4  N. 

Lead  Co.,   35  N.  Y.   505;   Bank  v.  Y.  208. 

Wheeler,    21    Ind.    90;    Baldwin®.  ••  El  well  «.  Dodge,  33  Barb.  (N.  Y.) 

Bank,  1  Wall.  (U.  S.)  234;  Houghton  336;  same  point,  Northampton  Bank 

V.  First  Nat.  Bank  of  Elkhorn,  26  «.  Pepoon,  11  Mass.  288;  Nicholas  o. 

Wis.  663,  7  Am.  Rep,  107;  Naves.  Oliver,  36  N.  H.  219;   Mclntyre  o. 

Lebanon  Bank,  87  Ind.  204;  Russell  Preston,  5  Gil.  (111.)  4a 

V.  Folsom,  72  Me.  436;  Farrar  v.  Gil-  »  Ante,  %  426. 

275 


§  440.  THB   LAW   OF   AGENOT.  [Book  IIL 

in  reason,  it  would  seem  that  it  should,  as  between  the  imme- 
diate parties  where  the  principal  is  known  or  disclosed,  and 
as  against  third  persons  where  enough  is  shown  to  fairly  put  a 
prndent  man  upon  his  guard. 

The  cases  upon  this  subject  are  not  harmonious  and  in  many  of 
them  the  distinction  between  public  and  private  agents  does  not 
seem  to  have  received  attention.  Thus  where  a  note  reading,  "  I 
promise  to  pay "  etc.  was  signed  by  G,  H.  and  A.  P.,  "  School 
trustees,"  it  was  held  that  the  note  was  the  individual  obligation 
of  the  signers,  and  that  the  words  "  School  trustees  "  were  but 
descriptive  of  the  persons  ;  *  and  a  similar  ruling  was  made  where 
the  paper  was  headed  "  State  of  Iowa,  County  of  Jones,  Town- 
ship of  Hale,"  and  was  signed,  W.  H.  G.,  "  Pres.  School  Board  " 
and  I.  B.  S.,  "  Sec'y  School  Board."  *  So  where  notes  were 
signed  J.  B.,  "  Agent  for  Lewis  County  "  it  was  held  that  J.  B. 
was  personally  bound.*  So  a  note  reading  "  For  value  received 
as  treasurer  of  the  town  of  Monmouth,  I  promise  to  pay  "  etc., 
and  signed  "Wm.  G.  Brown,  Treasurer,"  was  held  to  be  the 
individual  note  of  Brown.* 

But  upon  the  ground  that  they  were  public  agents,  it  was  held, 
where  two  notes  headed  "  Monticello,  Ind."  and  reading  "  we 
promise  to  pay "  etc.  were  signed,  one,  H.  P.  A.,  W.  S.  H.,  C. 
W.  K.,  "  Trustees  of  Monticello  School,"  and  the  other  H.  P.  A., 
C.  W.  K.,  "  School  trustees,"  that  the  words  "  Trustees  of  Monti- 
cello School,"  and  "  School  trustees,"  were  not  mere  desoriptio 
personcB,  but  indicated  an  intent  to  charge  the  school  town,' 
and  this  doctrine  is  reaflBrmed  in  later  cases  in  the  same  court.* 
A  fortiori  would  the  rule  of  this  case  apply  where  a  note  read- 

•  Village  of  Cahokiac.  Rautenberg,  President,  J.  A.  C,  Secretary,  E.  S., 

88  111.219.     To  same  effect,  see  Fow-  Director,"  was  held  to  be  the  in di- 

leriJ.  Atkinson,  6  Minn.  579,  vidual  note  of  the  signers.    Amer- 

«  Wing  «.  Glick,  56  Iowa,  473,  also  lean  Insurance  Co.   v.   Stratton,   5d 

reported  in  note  to  37  Am.  Rep.  143.  Iowa,  696. 

See  also  Bayliss  v.  Peterson,  15  Iowa,  »  Exchange    Bank    of   Virginia  v, 

279,    where    persons  who  signed  as  Lewis  County,  28  W.  Va.  273. 

"  Committeemen  for  the  erection  of  a  *  Ross  v.  Brown,  74  Me.  352. 

school-house  in  District  No.  1."  were  »  School  Town    of    Monticello   ». 

held  liable.     But  see  Baker  v.  Cham-  Kendall,  72  Ind.  91,  37  Am.  Rep.  139. 

bles,   4  Greene  (Iowa)  428.     And  in  •  Moral  School  Tp.  ».  HarrisoQ,  74 

the  same  state  a  note  signed  "  E.  G.,  Ind.  93. 

276 


Chap.  III.]  EXEOUTION    OF    SIMPLE    0ONTEACT8.  §  441. 

ing  "  I  promise  to  pay  "  etc.  "  to  be  paid  out  of  the  township 
funds  "  is  signed  F.  K.  M.,  "  Trustee  of  Johnson  Tp."  ' 

And  where  a  sealed  note  reading  "  we,  A.  S.  0.,  W".  M.  C,  and 
J.  H.  K.,  members  of  the  townsliip  committee  of  the  township 
of  Harrison,  *  *  *  and  our  successors  in  office  promise  to 
pay "  was  signed  by  the  parties  in  their  individual  names,  the 
court  applied  the  doctrine  in  regard  to  public  agents  and  held  the 
signers  not  personally  liable.* 

§  441.  Admissibility  of  parol  Evidence  to  show  Intent.  The 
question  of  the  admissibility  of  parol  evidence  to  show  who  was 
intended  to  be  bound  by  an  instrument  executed  by  an  agent 
is  one  not  free  from  difficulty,  and  the  decisions  are  in  conflict. 

Thus  where  an  agent  drew  a  bill  upon  his  principal,  signing 
it  "  T.  R  T.,  agent  for  S.  T.,"  and  there  was  nothing  in  the  body 
of  the  bill  to  show  that  it  was  drawn  as  the  act  of  the  principal, 
the  Supreme  Court  of  Colorado  held,  1.  That,  contrary  to  the 
preponderance  of  authority  that  the  form  "  C  D,  agent  for 
A  B,"  is  sufficient  to  bind  the  principal,  it  was  the  individual 
obligation  of  T.  K  T. ;  and,  2.  That  even  as  between  the  original 
parties,  parol  evidence  was  not  admissible  to  prove  that  the  bill 
was  drawn  in  a  representative  capacity,  and  not  individually,  and 
that  the  payee  had  full  knowledge  of  this  fact.' 

But  this  case  was  practically  overruled  by  a  subsequent  case 
in  the  same  court,  where  it  was  held  that  in  the  case  of  a  bill 
drawn  upon  "T.  D.  H.,  Treas."  and  accepted  by  him  in  the  same 
form,  parol  evidence  was  admissible  to  show  that  the  accept- 
ance was  in  an  official  capacity  and  was  known  by  the  payee  to 
be  so.*  And  the  same  ruling  was  made  in  a  similar  case  in 
Maryland.* 

And  in  accordance  with  these  cases,  the  Supreme  Court  of 
Mississippi  held  that  where  a  bill  was  drawn  upon  an  agent  and 
accepted  by  him,  "  Accepted,  W.  S.  B.,  agent  of  H.  W.  H.,'' 
parol  evidence  was  admissible,  as  between  the  original  parties,  to 

'  Wallis  V.  Johnson  School  Tp.,  75  *  Hager  v.  Rice  (1877),  4  Colo.  90, 

Ind.  368.  34  Am.  Rep.  68. 

2  Knight  V.  Clark,  48  N.  J.  L.  23,  »  Laflin    &    Rand  Powder    Co.  «. 

67  Am.  Rep.  534.  Sinsheimer  (1877),  48  Md.  411,  80  Am, 

»  Tannatt  v.  Rocky  Mt,  Nat.  Bank  Rep.  473. 
(1871),  1  Colo.  278,  9  Am.  Rep.  156. 

277 


5  441.  THE   LAW   OF    AGENOT.  [Book  III. 

show  that  it  was  the  intent  at  the  time  to  bind  H.^  the  princi- 
pal, only.' 

Again,  where  a  note  was  drawn  "  we  promise  to  pay,"  etc.,  and 
was  signed  by  four  individuals,  adding  "  President  and  Directors 
of  the  Prospect  and  Stockton  Cheese  Company,"  the  Supreme 
Court  of  Maine  held  that  evidence  was  not  admissible  to  show 
that  it  was  intended  to  be  the  obligation  of  the  company ;  •  but 
where  the  note  read  "  we,  the  president  and  directors  "  of  a 
turnpike  company  "  promise  to  pay"  etc.,  and  was  signed  by  C. 
T.  H.,  "  President,"  J.  H.  H.  and  J.  G.  D.,  "  directors  "  and  E. 
R.  S.,  "secretary,"  the  Court  of  Appeals  of  Maryland  held  that 
parol  evidence  was  admissible  to  show  that  the  signers  of  the  note 
did  80  as  the  agents  of  the  company  and  not  as  individuals  and 
that  the  note  was  accepted  as  the  note  of  the  company.* 

So,  again,  where  the  note  ran,  "  we,  the  trustees  of  the  Meth- 
odist Episcopal  Church  in  Lebanon,  promise  to  pay,"  etc.,  and 
was  signed  with  the  individual  names  of  the  makers,  the  Su- 
preme Court  of  Illinois  decided  that  it  was  the  individual  note  of 
the  signers  and  that  parol  evidence  could  not  be  admitted  to 
show  "that  it  was  well  understood  by  the  payee  when  the 
makers  executed  the  note,  they  were  acting  in  their  capacity  as 
trustees  of  the  church;  that  they  intended  to  obligate  the  church 
corporation,  having  full  authority  in  that  regard,  and  did  not  in- 
tend to  bind  themselves  personally  or  individually  by  their 
writing."  * 

But  in  New  York,  where  the  makers  of  a  note  designated 
themselves  "  Trustees  of  the  First  Baptist  Society  of  the  Village 
of  Brockport,"  it  was  held  that  \^\viiQ,  jprima  fade  they  were  per- 
sonally liable,  yet  that  the  presumption  might  be  rebutted  by 
parol  evidence  that  the  note  was,  to  the  knowledge  of  the  payees, 
given  as  the  obligation  of  the  Society,"  and  this  principle  was 
reaffirmed  in  later  cases.  • 

>  Hardy  ».  Pilcher  (1879),   57  Miss.  <  Hypes  p.  Griffin  (1878),  89  111,  134, 

18,  34  Am.  Rep.  433.     To  same  effect  81  Am.  Rep.  71. 

see  Martin  ©.    Smith,    —  Miss.  — ,  8  »  Brockway  e.  Allen,  17  Wend.  (N. 

South.  Rep.  33.  T.)  40. 

«Rendell5.  Harriman  (1883),75  Me.  'See  White  n.  Skinner,  13  Johns. 

497,  46  Am.  Rep.  421.  (N.  Y.)  307;  Barker  v.  Mechanic  Ins. 

"Haile  t.  Peirce  (1869),  32  Md.  327.  Co.  3  Wend.  (N.  Y.)  94;  Babcock  «. 

3  Am.    Rep.    139;  and   see  Laflin  «&  Beman,  11  N.  Y.  200;  Bank  of  Utica 

Rand  Powder  Co.  s.Sinsheimer,su/?ra.  e.  Magher,  18  Johns.    (N.    Y.)  343; 

278 


Chap.  III.]  EXECUTION    OF    SIMPLE    C0NTKACT8.  §  441. 

So  where  a  note  reading  "We  promise  to  pay,"  etc.,  was  signed 
"Pioneer  Mining  Company,  John  E.  Mason,  Snpt.,"  parol  evi- 
dence was  held,  by  the  Supreme  Court  of  California,  to  be  ad- 
missible to  show  that  it  was  understood  by  the  payee  to  have 
been  the  note  of  the  company  alone  and  to  have  been  given  for 
a  consideration  passing  to  the  compan3^^ 

So  where  a  bill  was  signed  "  John  Kean,  President  Elizabeth- 
town  &  Somerville  R.  R.  Co.,"  the  Court  of  Errors  and  Appeals 
New  Jersey  held  that  parol  proof  was  admissible,  as  against  a 
party  who  was  apprised  of  that  fact  when  he  took  it,  to  show 
that  the  bill  was  the  bill  of  the  company,  and  not  of  Kean,  in- 
dividually.' 

And  the  same  ruling  has  been  made  in  Alabama'  and  Virginia,* 
but  a  directly  opposite  conclusion  has  been  reached  in  Ohio. 
Thus  where  a  bill  was  accepted  by  J.  A.  R.,  "  Agent  K.  &  O. 
C.  Co.,"  parol  evidence  was  rejected  to  show  that  he  was  the 
duly  authorized  agent  of  Kanawha  &  Ohio  Coal  Company ;  that 
he  accepted  the  bill  for  and  on  account  of  the  company  and  that 
the  payee  knew  these  facts.* 

In  Kentucky,  where  a  due  bill  was  signed  "  for  Thomas  D. 
Owings,  James  Grubbs,"  parol  evidence  was  held  to  be  admissi- 
ble as  against  the  payee,  to  show  that  Grubbs  was  the  manager 
of  Owings'  works,  and  that  he  executed  and  delivered  the  due 
bill  as  the  obligation  of  Owings ;  •  and  the  same  ruling  was  made 
in  Connecticut,  where  a  note  was  signed  A.  W.  M.,  "  agent  for 
the  Middletown  Manufacturing  Company."  ' 

In  Missouri,  where  a  note  reading  "I  promise  to  pay,"  etc., 
"  for  building  a  school-house  in  Dist.  No.  3,"  was  signed  by  P. 
T.  R.,  "Local  Director,"  it  was  held  in  an  action  against  the 

Bank  of  Genesee  v.  Patchin  Bank,  19  *  Richmond.    &c.    R.    R.    Co.     v. 

N.  Y.  312;  Randall  v.  Van  Vetchen,  Snead,  19  Gratt.  (Va.)  354. 

19  Johns.    (N.    Y.)    60;  Newman  v.  *  Robinson     v.     Kanawha    Valley 

GreefE,  101  N.  Y.    663.   6  North.   E.  Bank,  44  Ohio  St.  441,  8  N.  E.  Rep. 

Rep.  335.  583;  see  also  to  same  effect:  Collins  v. 

'  Bean     v.    Pioneer    Mining     Co.  Insurance  Co.  17  Ohio  St.  215;  Titus 

(1885),  66  Cal.  451,  56  Am.  Rep.  106.  v.  Kyle.  10  Ohio  St.  445. 

«  Kean  v.  Davis  (1847),   21  N.  J.  L.  •  Owings  v.  Grubbs,  6  J.  J.  Marsh. 

683,  47  Am.  Dec.  182.  (Ky.)  31;  Webb  t».  Burke,  5  B.  Mon. 

»  Lazarus  v.  Shearer,  2  Ala.  (N.  S.)  (Ky.)  51. 

718.  ''  Hovey  c.  Magill,  3  Conn.  680. 

279 


§  441.  THE   LAW    OF   AGENCY.  [Book   III. 

director  that  he  might  show  by  parol  evidence  that  it  was  not 
intended  to  be  his  note  but  that  of  the  district.^ 

In  Illinois,  where  a  bill  headed  "  OfiBce  of  De  Steiger  Glass 
Company  "  was  signed  "  Phil.  R.  De  Steiger,  Pres.,"  it  was  held 
by  the  Appellate  Court,  after  an  exhaustive  review  of  the  au- 
thorities, that  parol  evidence  was  admissible  to  show  that  it  was 
the  draft  of  the  glass  company  and  not  of  the  president  individ- 
ually." » 

Such  evidence  has  also  been  freely  admitted  by  the  Supreme 
Court  of  the  United  States.  Thus  where  a  check  headed  "  Me- 
chanics' Bank  of  Alexandria,"  drawn  on  the  cashier  of  the  Bank 
of  Columbia,  was  signed  "  Wm.  Paton,  Jr.,"  parol  evidence  was 
held  to  be  admissible  to  show  that  Paton  was  the  cashier  of  the 
Mechanics'  Bank ;  that  he  drew  the  check  as  such  cashier  and 
that  the  Bank  of  Columbia  knew  it;"  but  where  a  note  drawn 
payable  to  the  order  of  "  Geo.  Moebs,  Sec.  and  Treas.,"  by  the 
"Peninsular  Cigar  Co.,  Geo.  Moebs,  Sec.  and  Treas.,"  was  indorsed 
"  Geo.  Moebs,  Sec.  and  Treas.,"  it  was  held  that  the  indorsement 
was  clearly  that  of  the  cigar  company  and  that  parol  evidence 
was  not  admissible  to  show  that  the  indorsement  was  intended  to 
be  that  of  Moebs  personally.* 

■McClellan  v.  Reynolds,    49  Mo.  where  it  is  held  that  where  a  check  was 

312;  and  the  same  ruling  was  made  in  signed  "  W.  Q.  Williams,  V.  Pres't," 

other  cases,  Shuetze  v.  Bailey,  40  Mo.  parol  evidence  was  admissible  to  show 

69;  Musser  v.  Johnson,  42  Mo.  74,  97  that  the  person  taking  it,  took  it  as  the 

Am.  Dec.  316;  Turner  ».  Thomas,  10  check  of  the  corporation  of  which 

Mo.  App.  342.  Williams  was  vice-president. 

2  La  Salle  National  Bank  v.  Tolu  *  Falk  v.  Moebs,  127  U.  8.  597. 
Rock  &  Rye  Co.,  14  111.  App.  141.  "  We  conclude,  therefore,"  says  Mr. 

3  Mechanics'  Bank  v.  Bank  of  Justice  Lamar,  in  this  case,  "  that 
Columbia,  5  Wheat.  (U.  S.)  326;  see  the  notes  involved  in  this  contro- 
also,  Baldwin  v.  Bank  of  Newbury.  1  versy,  upon  their  face,  are  the  notes 
Wall.  (U.  8.)  234.  where  it  is  held  of  the  corporation.  In  the  language 
that  where  negotiable  paper  is  drawn  of  the  court  below,  they  were  '  drawn 
to  a  person  by  name,  with  addition  by,  payable  to  and  indorsed  by,  the 
of  "Cashier"  to  his  name,  but  with  corporation.'  There  is  no  ambiguity 
no  particular  designation  of  the  par-  in  the  indorsement,  but,  on  the  con- 
ticular  bank  of  which  he  is  cashier,  trary,  such  indorsement  is,  in  terms, 
parol  evidence  is  allowable  to  show  that  of  the  Peninsular  Cigar  Com- 
that  he  was  the  cashier  of  a  bank  pany.  This  being  true,  it  follows 
which  is  plaintiff  in  the  suit,  and  that  that  the  court  below  was  right  in  ex- 
in  taking  the  paper  he  was  acting  as  eluding  from  the  jury  the  evidence 
cashier  and  agent  of  that  corporation;  offered  to  explain  away  and  modify 
and  Metcalf  e.  Williams,  104  U.  8.  93,  the    terms    of    such    indorsement." 

280 


Chap.  III.]  EXECUTION    OF   SIMPLE   CONTRACTS.  §  442. 

But  in  Massachusetts,  where  a  draft  headed  "  OflBce  of  Portage 
Lake  Manufacturing  Company,"  drawn  upon  "E.  T.  Loring, 
Agent,"  and  concluding  "  and  charge  the  same  to  the  account  of 
the  company,"  was  signed  by  "  J.  R.  Jackson,  Agt.,"  and  was 
accepted  as  follows,  "  Accepted  June  15,  E.  T.  Loring,  Agent," 
it  was  held  in  an  action  against  the  acceptor,  that  parol  evidence 
was  not  admissible  to  show  that  the  defendant  was  in  fact  the 
agent  of  the  company  named  on  the  face  of  the  draft,  that  the 
plaintiff  knew  that  he  was  so,  and  that  the  defendant  had  no 
personal  interest  in  the  company.  In  this  case,  as  has  been  seen, 
the  court  construed  the  words  disclosing  the  name  of  the  com- 
pany and  upon  whose  account  the  bill  was  drawn,  as  showing  that 
the  bill  was  drawn  as  the  bill  of  the  company,  and  that  they 
could  not  be  again  used  to  show  that  it  was  also  accepted  in  that 
character ; '  and  where  a  note  reading  "  I  promise  to  pay,"  etc., 
was  signed  by  W.  H.  E.,  "  Pres.  and  Treas.  Chelsea  Iron  Foun- 
dry Company,"  the  same  court  held  that  it  was  the  individual 
promise  of  W.  H.  E.,  and  that  it  was  erroneous  to  admit  oral 
testimony  to  show  that  at  the  time  the  note  was  given  and  after- 
wards, it  was  understood  and  agreed  by  the  parties  that  it  was 
the  note  of  the  foundry  company.* 

So  in  Iowa,  where  a  note  containing  an  individual  promise  was 
signed  "E.  G.,  President,  J.  A.  C,  Secretary,  E,  S.,  Director," 
it  was  held  that  it  was  the  individual  promise  of  the  signers  and 
that  parol  evidence  was  not  admissible  to  show  that  it  was  in- 
tended to  be  the  promise  of  the  school  district  of  which  the 
signers  were  the  respective  officers  indicated.' 

Where,  however,  the  note  or  bill  is  signed  in  the  individual 
name  of  the  maker,  with  nothing  in  the  body  of  the  instrument 
or  in  the  signature  to  show  that  he  acted  in  a  representative 
capacity,  parol  evidence  is  inadmissible  to  exonerate  him  and  to 
charge  another.* 

§  442.     Same  Subject— "What  Bules  applied.     The  trouble  that 

Citing  White  «.  Bank,  102  U.  8.  658;  »  American  Ins.  Co.  t».  Stratton,  59 

Martin  v.  Cole,  104  U.  S.  30;  Metcalf  Iowa,  696. 

••  "Williams,  Id.  93.  <  Phelps  ».   Borland.   30  Hun    (N. 

'  Slawson  «.  Loring,6  Allen  (Mass.)  Y.)  363;  Auburn  Bank  v.  Leonard,  40 

840,  81  Am.  Dec.  750.  Barb.  (N".  Y.)  119;  Babbett  ©.  Young, 

»  Davis  t>.  England,  141  Mass.  587;  51  N.  Y.  238. 
6  N.  East,  Rep.  73. 

281 


§  442.  THE   LAW   OF   AGENCY.  [Book    III. 

has  been  experienced  in  dealing  with  this  question  does  not  arise 
80  much  from  a  lack  of  appreciation  of  the  proper  principle  in- 
volved, as  from  the  difficulty  of  applying  it,  although  the  courts 
have  not  always  agreed  even  upon  the  principle. 

Thus  the  rule  has  been  stated  by  a  learned  judge  in  this  way : 
"  Ordinarily,  no  extrinsic  testimony  of  any  kind  is  admissible  to 
vary  or  explain  negotiable  instruments.  Such  paper  speaks  its 
own  language,  and  the  meaning  which  the  law  affixes  to  it  cannot 
be  changed  by  any  evidence  aliunde.  One  of  the  few  exceptions 
to  this  rule  is  where  anything  on  the  face  of  the  paper  suggests 
a  doubt  as  to  the  party  bound,  or  the  character  in  which  any  of 
the  signers  has  acted  in  affixing  his  name ;  in  which  case,  testi- 
mony may  be  admitted  between  the  original  parties  to  show  the 
true  intent.  Thus,  where  one  has  signed  as  agent  of  another, 
while  \\\Q  prima  facie  presumption  is  that  the  words  are  merely 
desoriptio personoBy  and  that  the  signer  is  individually  bound,  yet 
it  may  be  shown  in  a  suit  between  the  parties  that  it  was  not  so 
intended,  but  that,  on  the  contrary,  the  true  intention  was  that 
the  payee  should  look  to  the  principal  whose  name  was  disclosed 
in  the  signature  of  his  agent,  or  who  was  well  known  to  be  the 
true  party  to  be  bound.  The  principle,  though  not  recognized 
in  all  the  cases,  is,  we  think,  a  sound  one,  and  supported  by  the 
weight  of  authority."  * 

And  the  principle  has  been  asserted  in  another  case  as  follows  : 
"  The  established  rule  seems  to  be,  that  an  agent,  in  making  a 
promise  for  his  principal,  is  liable  on  the  promise  unless  it  be 
expressed  in  terms  which  show  that  it  was  made  for  and  on  behalf  of 
the  principal ;  and  where  an  agent  makes  a  promissory  note  to  a 
third  person,  in  terms  sufficient  to  bind  himself  as  principal,  the 
mere  addition  of  the  word  'agent'  or  other  description  of  his 
office  or  capacity,  to  his  signature,  does  not  change  or  vary  the 
legal  effect  of  the  promise  itself.'     *     *     * 

But  sometimes  the  agent  may  attach  to  his  signature  the  char- 
acter in  which  he  signs  the  instrument  without  any  correspond- 

'  Chalmers,  J.,  in  Hardy  B.Pilcher,  Mechanics' Bank  e.  Bank  of  Colnm- 
57  Miss.  18,  34  Am.  Rep.  433.  citing  bia,  5  Wheat.  (U.  S.)  826,  1  Am.  Lead. 
1  Dan.  on  Neg.  Inst.  §  418;  Haile  v.       Cas.  633 


Peirce,  32  Md.  327,  3  Am.  Rep.  139 
McClellan  v.  Reynolds,  49  Mo.  812 
Baldwin  v.  Bank,  1  Wall.  (U.  S.)  234 


s  Citing  Sumwalt  ».  Ridgely,  20  Md. 
114. 


282 


Chap.  III.]  EXECUTION    OF    SIMPLE    CONTRACTS.  §  4i2. ' 

ent  or  other  description  in  the  body  of  the  note — or  he  may,  in 
the  body  of  the  instrument,  disclose  the  name  of  his  principal 
and  sign  his  own  individual  name  without  any  additional  descrip- 
tion whatever, — or  he  may  sign  his  own  name,  without  apt  terms 
to  charge  himself,  and  in  the  body  of  the  note  use  doubtful 
expressions  to  describe  the  principal,  leaving  the  precise  meaning 
of  the  instrument  to  be  gathered  from  the  terras  on  its  face,  so 
ambiguous  or  obscure  as  to  render  its  interpretation,  jper  se,  too 
difficult  and  uncertain  for  just  and  sound  construction.  When 
the  note  is  of  this  last  description,  that  is  where  its  language  or 
terms  are  so  unintelligible  as  to  admit  of  no  rational  interpreta- 
tion of  the  meaning,  or  are  not  sufficiently  decisive  of  the  inten- 
tion of  the  parties,  but,  on  the  contrary,  are  equivocal  and  uncer- 
tain, extraneous  proof,  as  between  the  original  parties,  may  be 
admitted  to  show  the  true  character  of  the  instrument,  and  what 
party, — the  principal  or  the  agent,  or  both, — is  liable. 

Where  individuals  subscribe  their  proper  names  to  a  promis- 
sory note,  prima  facie  they  are  personally  liable,  though  they 
add  a  description  of  the  character  in  which  the  note  is  given  ; 
but  such  presumption  of  liability  may  be  rebutted,  as  between 
the  original  parties,  by  proof  that  the  note  was  in  fact  given  by 
the  makers,  as  agents,  with  the  payee's  knowledge."  ^ 

And  still  again  it  has  been  said  that  "  The  rule  is  that  when 
words  which  may  be  either  descriptive  of  the  person,  or  indica- 
tive of  the  character  in  which  he  contracts,  are  affixed  to  the 
name  of  the  contracting  party,  j^ima  facie  they  are  descriptive 
of  the  person  only ,  but  the  fact  that  they  were  not  intended  by 
the  parties  as  descriptive  of  the  person,  but  were  understood  as 
determining  the  character  in  which  the  party  contracted,  may  be 
shown  by  extrinsic  evidence ;  but  the  burden  of  proof  rests  upon 
the  party  seeking  to  change  t\ie  prima  facie  character  of  the  con- 
tract." ' 

In  Kean  v.  Davis,'  where  the  form  of  signature  was  "  John 
Kean,  President  Elizabethtown  and  Somerville  K  R.  Co.,"  Chief 
Justice  Green  said  :  "  It  is  at  best,  upon  the  face  of  the  instru- 
ments, doubtful  by  whom  they  were  executed.  It  is  not  clear 
who  was  the  contracting  party,  whether  the  obligation  was 
assumed  by  the  agent,  or  whether  he  contracted  on  behalf  of  his 

•Haile  «.  Peirce,  82  Md,  827,  8  Am.  'Pratt  v.  Beaupre,  13  Minn.  187. 

Rep.  139.  »  21  N.  J.  L.  683,  47  Am.  Dec.  182, 

283 


§  442.  THE    LAW    OF    AGENCY.  [Book  III. 

principal.  May  extrinsic  evidence  be  resorted  to,  to  remove  this 
doubt?  Is  parol  evidence  admissible  to  show  by  whom  this  eon- 
tract  was  in  fact  made, — whether  it  is  the  contract  of  the  agent 
or  the  contract  of  the  principal? 

If  this  were  a  verbal  and  not  a  written  contract,  it  is  not  ques- 
tioned that  the  evidence  offered  is  both  pertinent  and  competent  to 
discharge  the  agent,  and  fix  the  liability  upon  the  principal. 
The  objection  urged  to  the  evidence  is,  that  the  contract  is  in 
writing ;  that  the  construction  of  a  written  agreement  is  matter 
of  law,  to  be  settled  by  the  court  upon  the  terms  of  the  instru- 
ment itself;  and  that  evidence  aliunde  cannot  be  received  to 
contradict  or  to  vary  the  terms  of.  a  valid  written  instrument. 

It  is  material  to  observe  that  the  T)ody  of  this  instrument  con- 
tains not  a  word  indicating  by  whom  the  contract  was  made. 
The  language  of  the  instrument  is  equally  applicable  to  a  con- 
tract made  by  the  individual  or  by  the  corporation.  It  cannot  be 
said  that  this  evidence  will  either  contradict  or  vary  the  terms 
of  the  instrument.  The  whole  difficulty  lies,  not  in  the  con- 
struction of  the  instrument,  but  in  the  import  of  the  signature. 
That  signature,  as  we  have  seen,  may  import  either  the  act  of 
the  company  or  of  the  individual.  The  terms  of  the  instrument 
are  neither  varied  nor  contradicted  by  proof  that  it  was  the  con- 
tract of  the  one  or  of  the  other. 

The  question  is  not  what  is  the  true  construction  of  the  lan- 
guage of  the  contracting  party,  but  who  is  the  contracting  party  I 
Whose  language  is  it?  And  the  evidence  is  not  adduced  to  dis- 
charo-e  the  agent  from  a  personal  liability  which  he  has  assumed, 
but  to  prove  that  in  fact  he  never  incurred  that  liability.  Not  to 
aid  in  the  construction  of  the  instrument,  but  to  prove  whose 
instrument  it  is. 

Kow  it  is  true  that  the  construction  of  a  written  contract  is  a 
question  of  law,  to  be  settled  by  the  court  upon  the  terms  of  the 
instrument.  But  whether  the  contract  was  in  point  of  fact 
executed,  when  it  was  made,  where  it  was  made,  upon  what  con. 
sideration  it  was  made,  and  by  whom  it  was  made,  are  questions 
of  fact  to  be  settled  by  a  jury,  and  are  provable  in  many  instances 
by  parol  even  though  the  proof  conflicts  with  the  language  of 
the  instrument  itself," 

So  in  the  United  States  Supreme  Court,  Mr.  Justice  Bradley 
said :     "  The  ordinary  rule  undoubtedly  is  that  if  a  person  merely 

284 


Chap.  III.]  EXECUTION    OF    SIMPLE    0ONTKA0T8.  §  442. 

adds  to  the  signature  of  his  name  the  word  *  agent,'  '  trustee,' 
*■  treasurer,'  etc.,  without  disclosing  his  principal,  he  is  personally 
bound.  The  appendix  is  regarded  as  a  mere  descriptio  personm. 
It  does  not  of  itself  make  third  persons  chargeable  with  notice  of 
any  representative  relation  of  the  signer.  But  if  he  be  in  fact  a 
mere  agent,  trustee  or  officer  of  some  principal,  and  is  in  the 
habit  of  expressing  in  that  way  his  representative  character  in 
his  dealings  with  a  particular  party,  who  recognizes  him  in  that 
character,  it  would  be  contrary  to  justice  and  truth  to  construe 
the  documents,  thus  made  and  used,  as  his  personal  obligations 
contrary  to  the  intent  of  the  parties."  * 

The  reasons  given  for  the  contrary  ruling  are  numerous. 
Thus  in  the  Colorado  case  above  cited,'  the  court  said  :  "  If  the 
defendant  is  liable  as  drawer  of  this  negotiable  instrument,  that 
liability  must  be  determined  by  the  instrument  itself.  Parol 
evidence  can  never  be  admitted  for  the  purpose  of  exonerating 
an  agent  who  has  entered  into  a  written  contract  in  which  he 
appears  as  principal,  even  though  he  should  propose  to  show,  if 
allowed,  that  he  disclosed  his  agency  and  mentioned  the  name  of 
his  principal  at  the  time  the  contract  was  executed.  When  a 
simple  contract,  other  than  a  bill  or  note,  is  made  by  an  agent, 
the  principal  whom  he  represents  may,  in  general,  maintain  an 
action  upon  it  in  his  own  name,  and  parol  evidence  is  admissible, 
although  the  contract  is  in  writing,  to  show  that  the  person 
named  in  the  contract  was  an  agent,  and  that  he  was  acting  for 
his  principal.  Such  evidence  does  not  deny  that  the  contract 
binds  those  whom  on  its  face  it  purports  to  bind,  but  shows  that 
it  also  binds  another." 

In  Massachusetts,  the  court  says :  "  The  rule  excluding  all 
parol  evidence  to  charge  any  person  as  principal,  not  disclosed 
on  the  face  of  a  note  or  draft,  rests  on  the  principle  that  each 
person  who  takes  negotiable  paper  makes  a  contract  with  the 
parties  on  the  face  of  the  instrument,  and  with  no  other  person." 

*  Metcalf  ».  Williams,  104  U.  S.  93.  Robbins.  16  Gray  (Mass.)  77;  Forster 

sTannatt  v.   Rocky  Mountain  Na-  v.  Fuller,    6  Mass.    58;    Thacber   u 

tional  Bank,  1  Colo.  279,  9  Am.  Rep.  Dinsmore,    5  Mass.    299;    Fuller    v. 

156;   see  contra:    Hager  «.    Rice,   4  Hooper,  3  Gray,  (Mass  )  334;  Bank  of 

Colo.  90,  34  Am.  Rep.  68.  Britisb   N.    A.    v.    Hooper,    5   Gray, 

•Slawson  v.  Loring,  5  Allen  (Mass.)  (Mass.)  567,  66  Am.  Dec.  3S0;  Draper 

840,  81  Am.   Dec.    750;    Williams  v.  v.  Mass.  Steam  Heat.    Co.,   5  Allen, 

285 


§  44:3.  THE    LAW    OF    AGENCY.  [Book    III. 

In  Maine,  the  court  recognize  tlie  rule  that  an  ambiguity  may 
be  made  plain  by  the  use  of  parol  evidence,  but  deny  that  where 
a  note  beginning  "  We  promise  to  pay,"  etc.,  is  signed  by  several 
individuals,  adding  the  words  "  President  and  Directors  of  the 
Prospect  and  Stockton  Cheese  Company,"  any  such  ambiguity 
exists.'  And  the  general  doctrine  in  this  State  as  expressed  by 
the  court  is,  "  that  the  liability  or  non-liability  of  the  parties 
must  be  determined  by  an  inspection  of  the  note  itself;  that 
resort  cannot  be  had  to  parol  evidence  to  show  an  intention 
other  than  that  expressed  by  the  instrument  itself." ' 

In  Illinois  it  is  said  "  Whatever  may  be  the  decisions  elsewhere 
on  analogous  questions,  the  authorities  in  this  State  are  full  to 
the  point  that  a  party  will  not  be  permitted  to  show  by  oral  testi- 
mony that  his  written  agreement,  understandingly  entered  into, 
was  not  in  fact  to  be  binding  upon  him.  Accordingly  it  was  held 
in  Hypes  v.  Griffin,*  mainly  on  the  authority  of  Powers  v. 
Briggs,*  that  where  trustees  of  a  church  corporation  made  a  note 
in  their  individual  names,  although  they  described  themselves  as 
trustees  of  the  church,  parol  evidence  was  inadmissible  to  show 
it  was  the  intention  of  the  parties  that  it  was  to  be  the  note  of 
the  church  corporation  and  not  the  note  of  the  trustees  execut- 
ing it.  The  principle  running  through  that  and  other  cases  is 
that  such  instruments  will  be  construed  as  the  parties  made  them 
without  the  aid  of  extrinsic  evidence.  That  rule  of  interpreta- 
tion would  seem  to  be  as  well  settled  in  this  State  as  any  rule  can 
be."  • 

§  443.  Same  Subject— The  true  Rule.  To  extract  general 
principles  from  these  cases  whose  conflict  is  so  great  as  to  amount, 
in  the  language  of  a  recent  case,  almost  to  anarchy,  is  manifestly 
difficult.  It  will  be  obvious  that  the  question  is  of  importance 
in  two  classes  of  cases  : 

1.  Those  involving  the  rights  of  the  immediate  parties  to  the 
instrument  only. 

2.  Those  involving  the  rights  of  third  persons. 

(Mass.)  338;    Davis  «.   England,  141  8  Am.  Rep.  409;  Mellen  «.  Moore,  68 

Mass.  587,  6  N.  E.    Rep.    731;  Bart-  Me.  390,  28  Am.  Rep.  77. 

lett  V.  Hawley.  120  Mass.  92.  "89  111.  134.  31  Am.  Rep.  71. 

'  Rendell  v.  Harriman,  75  Me.  497,  <  79  111.  493,  22  Am.  Rep.  175. 

46  Am.  Rep.  421.  »Scaiilan  v.  Keith,  102  111.  634,  40 

sSturdivant  v.  Hall,   59  Me.    172,  Am.  Rep.  624. 

286 


Chap.  III.]  EXECUTION   OF    SIMPLE    CONTRACTS.  §  443. 

Respecting  this  question,  however,  these  general  rules  may  be 
evolved : 

I.  Where  the  paper  on  its  face  is  the  undertaking  of  the  agent 
only,  no  reference  being  made  on  its  face  to  representative  capac- 
ity,' and  where  the  paper  on  its  face  is  unmistakably  the  princi- 
pal's,' parol  evidence  will  not  be  received,  in  the  one  case  to  ex- 
onerate, and  in  the  other  to  charge  the  agent. 

II.  But  where  the  paper  bears  on  its  face  some  reference  to  a 
principal,  or  some  appellation  indicating  representative  charac- 
ter, while  it  is  undoubtedly  true  that  the  mere  addition  of  the 
word  "  agent,"  "  trustee,"  "  treasurer  "  and  the  like,  or  the  mere 
recital  in  the  body  of  the  instrument  that  the  person  signing  is 
such  agent,  treasurer,  or  trustee  of  a  principal  named  or  unnamed, 
is,  as  has  been  seen,  to  be  regarded  prima  facie^  as  descriptio 
personcB  merely  and  not  as  characterizing  the  act  as  one  done  in 
a  representative  capacity ;  and  while  it  is  also  true,  as  a  general 
rule,  that  parol  evidence  is  not  admissible  to  exonerate  an  agent 
from  a  contract  into  which  he  has  personally  entered,  yet  it  is 
believed  that  the  preponderance  of  authority  will  warrant  the 
statement  of  the  rule  that : 

1.  Between  the  immediate  parties  to  a  bill  or  note,  parol  evi- 
dence is  admissible  to  show  : 

a.  That,  by  a  course  of  dealing  between  the  parties,  that  form 
of  execution  has  become  to  be  the  recognized  and  adopted  form 
by  which  the  obligation  of  the  principal  is  entered  into  ; '  or 

« Phelps  f).  Borland,   30  Hun  (N.  and  used  aa  his  personal  obligations, 

Y.)  362;  Auburn  Bank  v.   Leonard,  contrary  to  the  intent  of  the  parties." 

40    Barb    (N.    Y.)  119;    Babbett    v.  Metcalf  t).  Williams,  104 U.  8.  93,  99; 

Young,  51  N.    Y.   238;    Hancock  v.  Hovey  v.    Magill,    2  Conn.    680;  La 

Fairfield,  30  Me.  299;  Collins?).  Buck-  Salle  Nat.  Bank  v.  Tolu,  &c.  Co.,  14 

eye  State  Ins.  Co.,  17  Ohio  St.  215;  111.  App.  141;  Milligan  «.   Lyle,   24 

Browne.  Parker,  7  Allen  (Mass.)  339,  La.  Ann.    144;    Qerber  c.    Stuart,  1 

«Falk  V.  Moebs,  127  U.  S.  597.  Montana,  172. 

>  Says  Mr.  Justice  Bradley,  "But  So  it  may  be  shown  that  the  prin- 

if  he  be  in  fact  a  mere  agent,  trustee  cipal  was  doing  business  in  the  agent's 

or  officer  of  some  principal,  and  is  in  name;    Bank  of  Rochester  v.    Mon- 

the  habit  of  expressing,  in  that  way,  teath,  1  Denio  (N.  Y.)  403,    43  Am. 

his    representative    character  in  his  Dec.    681.      See   also  Devendorf    «. 

dealings  with  a  particular  party,  who  West  Virginia.  &c.  Co.,   17  W.  Va. 

recognizes  him  in  that  character,  it  135;  Pease  v.   Pease,   35   Conn.   131; 

would  be  contrary  to  justice  and  truth  Stevenson  v.  Polk,  —  Iowa,  — ,  32  N. 

to  construe  the  documents,  thus  made  W.  Rep.  340. 

287 


§443. 


THE   LAW   OF   AGENCY. 


[Book  III. 


1.  That  the  instrnraent  was,  to  the  knowledge  of  the  parties,  in- 
tended to  be  the  obligation  of  the  principal  and  not  of  the  agent, 
and  that  it  was  given  and  accepted  as  such ;  ' 

e.  That  an  instrument  which  is  so  ambiguous  upon  its  face  as 
to  render  it  uncertain  who  was  intended  to  be  bound,  was  known 
to  be  intended  to  be  the  obligation  of  the  principal.' 

2.  Between  one  of  the  original  parties  and  a  third  party,  such 
evidence  is  admissible  to  make  either  of  the  lines  of  proof  men- 
tioned above : 

a.  Where  the  third  person  is  not  a  honafide  holder  ;*  or 
h.  Where  the  instrument  bears  sufficient  evidence  upon  its  face, 
or  is  so  ambiguous,  as  to  fairly  put  a  reasonably  prudent  man  up- 
on inquiry.* 

As  to  this  last  subdivision  it  may  be  said  that  the  mere  addi- 
tion of  the  word  "agent,"  "trustee,"  etc,  without  disclosing  the 
principal  is  not  sufficient  to  make  third  persons  chargeable  with 
notice  of  any  representative  relation  of  the  signer ;  •  but  the  form 
of  executing  may  be  such  as  to  well  awaken  the  suspicion  of 
third  persons.'     Thus  where  a  check  was  signed  "  W.  G.  Wil- 


»Say8  Gray,  J.:  "As  a  general 
proposition,  it  is  undoubtedly  trae, 
that  one  who  signs  a  writing  as  agent, 
trustee  or  president  is  to  be  regarded 
as  merely  describing  himself,  and 
hence  is  to  be  held  personally  liable. 
But  where  a  writing  is  thus  executed, 
with  full  authority  from  the  princi- 
pal, the  party  upon  whose  account  it 
is  executed  is  alone  liable."  Bank  of 
Genesee  v.  Patchen  Bank,  19  N.  Y. 
312;  Brockway  v.  Allen,  17  Wend. 
(N.  Y.)  40;  Owings®.  Grubbs,  6  J.  J. 
Marsh.  (Ky.)  31;  McClellan  v.  Reyn- 
olds, 49  Mo.  312;  La  Salle  Nat.  Bank 
V.  Tolu,  &c.  Co.,  14  111.  App.  141; 
Markley  v.  Quay,  14  Phila.  164. 

See  also  the  cases  cited  in  detail  in 
the  preceding  section. 

See  also  Whitney  v.  Wyman,  101 
U.  S.  392. 

*  This  principle  does  not  seem  to  be 
strongly  controverted,  but,  as  has 
been  seen,  the  courts  have  not  always 
agreed  as  to  what  constitutes  such  an 


ambiguity.  It  is  certainly  sustained 
by  the  great  weight  of  authority. 
Kean  v.  Davis,  21  N.  J.  L.  683,  47 
Am.  Dec.  182;  Haile  v.  Peirce,  32 
Md.  327,  3  Am.  Rep.  139;  Richmond, 
(fee.  R.  R.  Co.  e.  Saead,  19  Gratt. 
(Va.)  354;  Early  v.  Wilkinson,  9 
Gratt.  (Va.)  68;  Lazarus  v.  Shearer,  2 
Ala.  718;  Hardy  v.  Pilcher.  57  Miss. 
17.  34  Am.  Rep.  433;  Martin©.  Smith, 
—  Miss.  — ,  3  South.  Rep.  33;  Hager 
«.  Rice,  4  Colo.  90,  34  Am.  Rep.  68; 
Lacy  V.  Dubuque  Lumber  Co.,  43 
Iowa,  510;  Mechanics'  Bank  v.  Bank 
of  Columbia,  5  Wheat.  (U.  S.)326; 
Baldwin  v.  Bank  of  Newbury,  1 
Wall.  (U.  S.)234;  Newman  u.Greeff, 
101  N.  Y.  663,  5  N.  E.  Rep.  335. 

•Metcalf  V.  Williams,  104  U.  8.  93; 
Condon  v.  Pearce,  43  Md.  83. 

♦  Metcalf  «.  Williams,  supra. 

»  Metcalf  V.  Williams,  supra;  Slaw- 
son  V.  Loring,  5  Allen  (Mass.)  340,  81 
Am.  Dec.  750. 

•Metcalf  V.  Williams,  supra;  Davis 


288 


Chap.  III.]  EXECUTION    OF   SIMPLE   C0NTKA0T8.  §  445. 

liams,  V-Pres."  and  "E.  P.  Aistrop,  Sec'j,"  the  Supreme 
Court  of  the  United  States  said:  "The  fact  that  it  bore 
two  official  signatures,  that  of  the  complainant  as  vice-president, 
and  of  Aistrop  as  secretary,  is  so  unusual  on  the  hypothesis  of 
its  being  an  individual  transaction  and  points  so  distinctly  to 
an  official  origin,  that  it  may  very  well  be  doubted  whether  any 
holder  could  claim  to  be  innocently  ignorant  of  its  true  charac- 
ter." • 

III.  As  between  the  principal  and  the  agent,  the  more  mod- 
ern cases  hold  that  it  is  competent  for  the  agent  to  show  that 
what  appears  to  be  the  agent's  obligation  is  in  fact  the  princi- 
pal's." 

§  444.  Further  of  this  Riile,  Consideration  of  these  rules 
will  show  that  they  are  not  in  conflict  with  established  princi- 
ples. They  are  not  for  the  purpose,  nor  have  they  the  effect,  to 
exonerate  the  agent  from  a  liability  assumed  by  him.  They  go 
deeper  than  that.  They  permit  the  agent  to  show  that  what 
appears  upon  its  face  to  be  his  contract  never  was  his  contract, 
but  is  in  reality  the  contract  of  another  ;  and  the  rule  is  limited 
in  its  operation  to  those  who  either  had  actual  knowledge  of  the 
true  state  of  the  case  at  the  time  of  its  inception,  or  who  have 
taken  the  paper  under  such  circumstances  as  would  put  a  reason- 
ably prudent  man  upon  inquiry. 

IL 

OF   THE    EXECUTION   OF   OTHER   SIMPLE   CONTRACTS. 

§  445.  The  proper  Manner.  Much  that  has  been  said  in  pro- 
ceding  sections  in  reference  to  the  proper  method  of  executing 
contracts  applies  here. 

All  considerations  of  propriety  and  convenience  suggest  such  a 
clear  and  unequivocal  statement  of  the  character  and  purpose  of 
the  act  that  there  can  be  no  misunderstanding.  Hence  a  proper 
and  formal  execution  would  require  that   the  relations   of  the 

•.  Henderson,  25  Miss.  549,  59  Am.  P.  C.  94;  Sharp  v.  Emmet,  5  Whart. 

Dec.  229;  Mott  v.  Hicks,  1  Cow.  (N.  (Penn.)  288;  Lewis  e.  Brelime,  33  Md. 

Y.)  513,  13  Am.  Dec.  550.  412.  3  Am.  Rep.  190;  Miles  e.  O'Hara, 

•Metcalf  V.  Williams,  supra.  1  Serg.  &  R.  (Penn.)  32;  Whitlock  «. 

'Castrique  v.  Buttigieg,  10  Moore,  Hicks,  75  Dl.  460. 

19  289 


§  446.  THE  LAW   or   AGENCY.  [Book  III. 

[parties  be  set  forth,  and  that  the  instrument  be  declared  to  be  the 
contract  of  the  principal  executed  by  his  agent.  As  to  the 
method  of  signing,  the  forms  found  to  be  sufficient  for  the 
execution  of  negotiable  instruments  may  appropriately  be 
followed. 

Notwithstanding  this,  however,  it  is  a  matter  of  every-day 
experience  that  in  the  haste  and  press  of  business,  contracts  are 
drawn  not  only  in  inartificial,  but  frequently  in  equivocal  and 
ambiguous  language,  and  by  persons  ignorant  not  only  of  the 
technical  meaning  of  legal  phrases,  but  often  of  the  accepted 
construction  of  the  vernacular.  From  the  very  necessities  of  the 
case,  therefore,  as  well  as  from  a  desire  to  give  effect  to  the 
intention  of  the  parties,  courts  look  with  indulgent  eyes  upon  such 
contracts.  The  strict  rules  of  the  common  law  which  govern  the 
execution  of  solemn  instruments  under  seal,  do  not  apply  here  ; 
neither  is  there  the  same  necessity  that  they  should  tell  their  own 
story  in  that  direct  and  positive  manner  that  has  been  seen  to  be 
required  of  negotiable  paper.' 

§  446.  Intention  of  the  Parties  the  true  Test.  In  determining 
whether  a  given  form  of  execution  is  sufficient  to  bind  the  prin- 
cipal, the  primary  consideration  is.  What  is  the  true  intention  of 
the  parties  as  expressed  in  this  contract  ?  In  settling  this  question 
it  must  be  borne  in  mind  that  no  particular  form  of  words  is 
required,  and  that  the  intention  is  to  be  gathered  from  the 
whole  instrument  and  not  from  any  isolated  portion  of  it.*  The 
situation  of  the  parties  and  the  circumstances  of  the  case  are  to 
be  taken  into  consideration.  So,  too,  a  valid  usage  or  custom 
may  be  resorted  to  in  the  proper  cases  to  aid  in  arriving  at  the 
intention,  but  not  to  contradict  or  vary  the  terms  expressly 
employed.' 

If  upon  a  survey  of  the  whole  instrument,  it  can  be  collected 

»See  Merchants'  Bank  t>.   Central  275;  Magill  «.  Hinsdale,  6  Conn.  464, 

Bank,  1  Ga.  418,  44  Am.  Dec.  665;  16  Am.  Dec.  70;  Hovey  v.  Magill,  2 

Andrews®.  Estes,  11  Me.  267,26Am.  Conn.    682;    Spencer    v.    Field,     10 

Dec.   521;    New   England  Insurance  "Wend.  (N.  Y.)  87;  New  England  Ins. 

Co.  V.  De  Wolf,  8  Pick.  (Mass.)  56;  Co.  v.  De  Wolf,  8  Pick.  (Mass.)  56; 

Rice  V.  Gove,  22  Pick.  (Mass.)  168,  33  City  of  Detroit  v.  Jackson,  1  Doug. 

Am.  Dec.  724.  (Mich.)  106;  Fowle  «.   Kerchner,  87 

•Rogers    v.    March,    83    Me.   106;  N.  C.  49. 

Whitney*.  Wyman.  101  U.    S.  392;  sOelricksr.  Ford,  23  How.  (U.  8.) 

Pentzc.  Stanton,  10  Wend.  (N.   Y.)  49. 

290 


Chap.  III.]  EXECUTION   OF   SIMPLE    00NTEA0T8. 


§447. 


that  the  true  object  and  intent  of  it  are  to  bind  the  principal  and 
not  the  agent,  courts  of  justice  will  adopt  that  construction  of  it, 
however  informally  it  may  be  expressed.* 

§  447.  Agent  may  bind  himself  by  express  Words.  But 
although  where  an  agent  acts  within  the  scope  of  his  authority 
and  professes  to  act  in  the  name  and  behalf  of  his  principal, 
he  is  not  personally  liable ;  still  if  by  the  terms  of  the  contract 
he  binds  himself  personally,  and  engages  expressly  in  his  own 
name  to  pay  money  or  to  perform  other  obligations,  he  will  be 
personally  responsible  even  though  he  describes  himself  as 
"  agent,"  etc.*  As  in  the  case  of  negotiable  paper,  the  mere 
recital  of  the  fact  of  agency,  and  the  mere  addition  to  his  signa- 
ture of  the  title  of  his  respresentative  character,  are  prima  facie 
to  be  construed  as  descriptive  of  the  person  only,  and  not  as  indi- 
cating an  intention  to  charge  a  principal. 

Thus  where  the  committee  of  a  town  entered  into  a  contract 
stated  to  be  made  "between  Horace  Heard,  Eli  Sherman  and 
I^ewell  Heard,  committee  of  the  town  of  "Wayland,  on  the  one 
part,  and  William  Simonds  and  John  Chapin  on  the  other  part," 


>  Merchants'  Bank  v.  Central  Bank, 
1  Ga.  418,  44  Am.  Dec,  665;  Abbey 
«.  Chase,  6  Cush.  (Mass.)  56,  and 
cases  cited  in  note  3,  above. 

In  Whitney  v.  Wyman,  supra,  Mr. 
Justice  SwATNE  says:  "  Where  the 
question  of  agency  in  making  a  con- 
tract arises,  there  is  a  broad  line  of 
distinction  between  instruments  under 
seal  and  stipulations  in  writing  not 
under  seal,  or  by  parol.  In  the  for- 
mer case  the  contract  must  be  in  the 
name  of  the  principal,  must  be  under 
seal,  and  must  purport  to  be  his  deed 
and  not  the  deed  of  the  agent  cove- 
nanting for  him.  Stanton  v.  Camp, 
4  Barb.  (N.  Y.)  274. 

In  the  latter  cases  the  question  is 
always  one  of  intent;  and  the  court, 
being  untrammeled  by  any  other  con- 
sideration, is  bound  to  give  it  effect. 
As  the  meaning  of  the  law-maker  is 
the  law,  so  the  meaning  of  the  con- 
tracting  parties    is  the     agreement. 


Words  are  merely  the  symbols  they 
employ  to  manifest  their  purpose  that 
it  may  be  carried  into  execution.  If 
the  contract  be  unsealed  and  the 
meaning  clear,  it  matters  not  how  it 
is  phrased,  nor  how  it  is  signed, 
whether  by  the  agent  for  the  princi- 
pal or  with  the  name  of  the  principal 
by  the  agent  or  otherwise. 

The  intent  developed  is  alone  ma- 
terial, and  when  that  is  ascertained  it 
is  conclusive.  Where  the  principal 
is  disclosed  and  the  agent  is  known 
to  be  acting  as  such,  the  latter  can- 
not be  made  personally  liable  unless 
he  agreed  to  be  so." 

*  Simonds  fl.  Heard,23  Pick.  (Mass.) 
120,  34  Am.  Dec.  41;  Andrews  v. 
Estes,  11  Me.  267,  26  Am.  Dec.  521; 
Burrell  v.  Jones,  3  Bam.  &,  Aid.  47; 
Fiske  V.  Eldridge,  13  Gray  (Mass.) 
474;  Morell  c.  Codding,  4  Allen 
(Mass.)  403;  Guernsey  v.  Cook,  117 
Mass.  548. 


291 


§  44:8.  THE    LAW    OF   AGENCY.  [Book    III. 

and  in  and  by  which,  after  a  specific  description  of  the  work  to 
be  done,  the  committee  promised  as  follows:  "  Said  committee 
are  to  pay  said  Simonds  &  Chapin  the  sum  of  three  hundred  and 
seventy-five  dollars  when  said  work  is  completed,"  etc.,  and 
signed  it  as  individuals,  it  was  held  that  the  members  of  the 
committee  had  made  themselves  personally  liable.  Said  the 
court,  by  Shaw,  Chief  Justice :  "  Two  things  are  here  observable, 
the  first  is  that  they  do  not  profess  to  act  in  the  name  or  behalf  of 
the  town,  otherwise  than  as  such  an  intention  may  be  implied  from 
describing  themselves  as  a  committee.  But  such  description, 
although  it  may  have  some  weight,  is  far  from  being  conclusive  ; 
and  in  many  of  the  cases  a  similar  designation  was  used,  which 
was  held  to  be  a  mere  descrijptio  personarum,  and  designed 
to  show  for  whose  account  the  contract  was  made,  and  to 
whose  account  the  amount  paid  under  such  contract  should  be 
charged. 

The  second  and  more  decisive  circumstance  respecting  this 
contract  is,  that  here  is  an  express  undertaking  on  the  part  of 
the  committee  to  pay,  "  Said  committee  are  to  pay  said  Simonds 
&  Chapin,"  etc.  Having  described  themselves  as  a  committee, 
this  undertaking  is  as  strong  and  direct  as  if  the  names  had  been 
repeated,  and  Heard,  Sherman  and  Heard  had  promised  to  pay. 
The  court  are  therefore  of  the  opinion  that  by  the  terms  of  this 
contract,  the  committee  intended  to  bind  themselves  and  did 
become  personally  responsible,  and  that  the  action  is  well 
brought  against  them." ' 

So  where  a  contract  was  made  "between  T.  W.  Matthews, 
Secretary  of  the  Mutual  Endowment  Association  of  Baltimore, 
Md.,  and  S.  T.  Jenkins,  of  Atlanta,  Ga.,"  and  all  the  agreements 
were  in  the  form  "  The  said  Matthews  agrees,"  etc.,  and  the  con- 
tract was  signed  "  T.  W.  Matthews,  S.  T.  Jenkins,"  it  was  held 
to  be  the  personal  contract  of  Matthews.* 

§  448.  Same  Subject— Contrary  Intention  manifest  But 
where,  notwithstanding  the  failure  to  use  precise  and  appropriate 
language,  it  still  can  be  gathered  from  the  whole  instrument  that 
the  agent  acted  in  a  representative  character,  the  words  used  will 

•  Simonds  e.  Heard  (1839),  supra.         Bee  also  Grau  v.  McVicker,  8   Biss. 

•  Matthews  v.  Jenkins,  80  Va.  463.      (U.  S.  C.  C.)  18. 

292 


Chap.  III.]  EXECUTION    OF    SIMPLE   CONTRACTS.  §  449. 

be  regarded  as  employed  with  that  intention,  and  not  merely  as 
descriptive  of  the  person.' 

Thus  where  a  lease  began  "  This  agreement,  made  this  25th 
day  of  December,  1880,  between  Randolph  Marshall,  agent  of 
Oliver  Dougherty,"  etc.,  and  was  signed  "Randolph  V.  Mar- 
shall, agent  of  O.  R.  Dougherty,"  the  Supreme  Court  of  Indiana, 
while  recognizing  the  general  rule  that  such  expressions  are 
ordinarily  regarded  as  descriptive  of  the  person,  said :  "  While 
accepting  the  general  rule  to  be  that  stated,  the  American  au- 
thorities agree  that  if  the  contract  itself  shows  that  the  words 
were  not  used  as  merely  descriptive  of  the  person  they  will  not 
be  so  regarded,  but  will  be  assigned  their  real  meaning.  In  the 
instrument  before  us  it  clearly  appears  that  Marshall  was  the 
agent  of  the  lessor,  and  acted  as  such,  for  we  find  this  recited, 
*That  the  said  Marshall,  agent  as  aforesaid,  has  rented,  etc' 
There  are  other  provisions  in  the  instrument  clearly  showing  that 
Marshall  executed  the  lease  as  the  agent  of  Dougherty,  and  we 
have  no  doubt  that  it  should  be  treated  as  having  been  executed 
by  him." ' 

And  where  an  order  for  goods,  beginning  "  our  company  being 
so  far  organized,  by  direction  of  the  officers,  we  now  order  from 
you,"  etc.,  was  signed  "  Charles  Wyman,  Edward  P.  Ferry,  Carl- 
ton L.  Storrs,  Prudential  Committee,  Grand  Haven  Fruit  Basket 
Co.,"  and  was  accepted  by  a  letter  addressed  to  the  "  Grand 
Haven  Fruit  Basket  Company,"  the  Supreme  Court  of  the  United 
States  held,  in  an  action  brought  to  charge  the  members  of  the 
committee  personally,  that  it  was  entirely  clear  that  both  parties 
understood  and  meant  that  the  contract  was  to  be,  and  in  fact 
was,  with  the  corporation,  and  not  with  the  committee.' 

§  449.  The  Admissibility  of  parol  Evidence  to  show  Intent. 
Where  an  agent  has  entered  into  a  contract  which  in  terms 
charges  himself,  parol  evidence  is  not  admissible  to  discharge 

>  Rogers  v.    March,   33    Me.    106;  Am.  Dec,  429;  Hall  «.  Huntoon,  17 

Goodenough  v.   Thayer,    133    Mass.  Vt.  244;    Traynham  v.   Jackson,  15 

152;  Green  v.  Kopke,  18  C.  B.  549  Tex.  170;  Texas  Land  «fc  Cattle  Co.  v. 

(9  J.  Scott);  Cook  V.  Gray,  133  Mass.  Carroll.  63  Tex.  48. 

106 ;  Lyon  ».  Williams,  5  Gray  (Mass.)  «  Avery  «.  Dougherty  (1885),    103 

557;   McGee  t>.    Larramore,   50  Mo.  Ind.  443,  52  Am.  Rep.  680. 

425;  Smith  c.  Alexander,  31  Mo.  193;  'Whitney  v.  Wyman,    101    U.  S. 

Ogden  V.  Raymond,  22  Conn.  379,  58  392:  Post  v.  Pearson.  108  Id.  418. 

293 


§  449.  THB   LAW   OF   AGENCY.  [Book  III. 

him  by  showing  that  he  intended  to  charge  the  principal,* 
although  it  is  admissible  to  show  that  it  was  the  intention  to 
charge  himself  personally,*  but  where  the  contract  bears  upon  ita 
face  evidence  that  the  person  signing  was  in  fact  an  agent,*  and 
where  the  contract  is  so  framed  as  to  render  it  uncertain  whether 
the  agent  or  the  principal  was  intended  to  be  bound,*  parol  evi- 
dence may  be  received  to  show  that  it  was  the  intention  to  bind 
the  principal  and  not  the  agent. 

But  although  parol  evidence  may  not  be  admissible  to  release 
the  agent,  it  may  be  made  use  of  to  charge  the  principal.  Thus 
the  principal,  as  will  be  seen  hereafter,  may  be  charged  as  such 
by  parol  evidence  upon  a  simple  contract  made  by  his  agent,  even 
though  the  contract  gives  no  indication  on  its  face  of  an  inten- 
tion to  charge  any  other  person  than  the  signer.  And  this  doc- 
trine applies  as  well  to  those  contracts  which  are  required  to  be 
in  writing  as  to  those  to  whose  validity  a  writing  is  not  essen- 
tial.' This  rule  is  not  obnoxious  to  the  principle  which  forbids 
the  contradiction  of  written  instruments  by  parol  testimony,  for 
the  effect  is  not  to  show  that  the  person  appearing  to  be  bound 
is  not  bound,  but  to  show  that  some  other  person  is  bound  also.* 

>  Bryan  v.  Brazil,  52  Iowa,  350.  open  to  proof  that  it  was  the  inten- 

« Black  River  Lumber  Co.  v.  War-  tion  to  bind  hia    principal  and  not 

ner,  93  Mo.  374;  Ferris  v.  Thaw,  72  himself.      Bingham  v.    Stewart,    13 

j^Q  446.  Minn.  106,  B.C.  14  Minn.  214;  Pratt  v. 

»  Deering  t).  Thom,  29  Minn.   120;  Beaupre,  18  Minn.  187." 
Pratt  «.  Beaupre.  13  Minn.  187;  Haile  *  Mechanics'  Bank  v.  Bank  of  Co- 
V.  Peirce.  82  Md,  827,  3  Am.   Rep.  lumbia,  5  Wheat.  (U.  S.)  326;  Deer- 
139.     In  Deering  v.  Thom  the  agent  ing  v.  Thom.  mpra. 
gave  the  purchaser  of  a  machine  an  •  Byington  v.  Simpson,  134  Mass. 
instrument  as  follows:  "If  the  Marsh  169,45    Am.    Rep.    314;    Briggs  t>. 
harvester  don't  work  to  his  satisfac-  Partridge,  64  N.  Y.  357,  21  Am.  Rep. 
tion,   he,  W.  Thom,   can  return  the  617;  Huntington  v.   Knox,   7  Cush. 
machine'to  me,  and  I  will  return  his  (Mass.)  371;  Eastern  Railroad  v.  Ben- 
note  for  the  same.     A.  M     Schnell,  edict,  5  Gray  (Mass.)  561;  Lerned  ». 
agent."  Gilfillan,  C.J.  said:  "The  Johns,  9  Allen  (Mass.)  419;  Hunter 
memorandum    signed  by  Schnell  is  t.  Giddings,  97  Mass.  41;  Exchange 
Btandin?  alone  and  without  anything  Bank  v.   Rice,   107  Mass.  37,  9   Am. 
to  explain  it  prima /aa'e  his  contract,  Rep.  1;  National   Ins.   Co.  e.  Allen, 
and  not  that  of  his  principal,  and  the  116  Mass.  398;  Texas  Land  &   Cattle 
word  •  agent'  affixed  to  his  signature  Co.  v.  Carroll,  63  Tex.  48;  Higginse. 
IB  prima  facie,  descriptio  personcB  and  Senior,  8  M.  «S5  W.  834. 
not  as  determining  the  character  in  •  See  Higgins  e.  Senior,  iupra. 
which  he  contracted.     But  it  was 

294 


Chap.  III.]  EXECUTION    OF    SIMPLE    CONTRACTS.  §  449. 

The  fact  that  tho  contract  was  one  which  the  Statute  of 
Frauds  requires  to  be  in  writing,  makes  no  difference.  Such  a 
contract  may  be  signed  for  the  principal  by  a  person  thereunto 
lawfully  authorized,  and  though  the  agent  sign  in  his  own  name 
alone,  the  principal  may  still  be  charged  by  parol  evidence.'  The 
rule  is  otherwise,  however,  where  the  agent  has  entered  into  a 
contract  in  his  own  name  and  under  seal.' 

>  Neaves  ©.North  State  Mining  Co.,  principal's  name,  is  a  sufficient  memo- 

90  N.  C.  413,  47  Am.   Rep.  529.     In  randum  to  charge  the  principal  under 

this  case  it  was  held  that  a  draft  for  the  Statute  of  Frauds, 

the  purchase  money  of  land,  drawn  •  Briggs  v.  Partridge,  64  N.  Y.  857, 

by  an  agent  without  disclosing  his  21  Am.  Rep.  617. 

295 


§  450.  THE   LAW    OF   AGENCY.  [Book  lY. 


BOOK    IV. 

OF  THE   RIGHTS,  DUTIES  AND   LIABILITIES  ARISING 
OUT  OF  THE  RELATION. 


CHAPTER    I. 
IN  GENERAL. 

450.  Purpose  of  Book  IV. 

451.  "What  Parties  interested. 
453.  How  Subject  divided. 

I  450.  Purpose  of  Book  IV.  Having  heretofore  considered 
how  the  relation  of  principal  and  agent  may  be  created ;  by 
what  rules  the  nature  and  extent  of  the  authority  conferred  shall 
be  determined ;  and  in  what  manner  the  authority  so  conferred 
and  construed  shall  be  executed,  it  remains  to  consider  in  this 
Book,  what  are  the  rights,  duties  and  liabilities  of  all  of  the  par- 
ties concerned,  growing  out  of,  or  based  upon,  the  actual  or 
attempted  execution  of  the  agency. 

§  451.  What  Parties  interested.  It  will  be  obvious  that  the 
persons  who  are  interested  in  this  inquiry  are  numerous,  involv- 
ing all  of  the  possible  parties  to  the  transaction,  and  that  their 
several  rights,  duties  and  liabilities  inter  sese  will  not  always  be 
identical  or  reciprocal,  or  determined  by  the  same  standards. 
Thus,  as  has  already  been  seen,  the  circumstances  may  be  such 
that  a  given  act  of  the  agent  must,  in  questions  arising  between 
the  principal  and  third  persons,  be  deemed  to  be  fully  author- 
ized ;  while  the  same  act  in  questions  arising  between  the  prin- 
cipal and  the  agent,  will  be  deemed  to  be  wholly  unauthorized. 
So,  as  has  been  seen,  the  acts  of  one  who  was  before  a  mere 
stranger  to  an  assumed  principal  may  become,  by  the  Otter's 
words  or  conduct,  binding  upon  him  as  an  actual  principal;  while, 

296 


Chap.  I.]  IN   GENERAL.  §  452. 

the  acts  of  an  agent  fully  authorized,  may  from  defective  or  ex- 
cessive execution  fail  to  bind  the  principal  at  all,  and  be  binding 
only  upon  the  agent  himself  in  some  cases,  and  in  others,  upon 
no  one. 

When  the  agent  has  fully  and  properly  executed  his  authority 
in  the  name  and  for  the  benefit  of  his  ostensible  principal,  his 
mission  is  performed  and  his  rights  and  liabilities  are  determined. 
Henceforth  his  principal  is  entitled  to  the  benefits  and  is  subject 
to  the  liabilities  arising  from  the  transaction. 

Where,  however,  he  has  executed  his  authority  in  his  own 
name,  or  so  ambiguously  as  to  render  it  uncertain  upon  the  face  of 
the  transaction  in  what  character  and  capacity  he  acted,  it  will  be 
found  in  many  cases  that  dual  rights  and  liabilities  have  been 
created,  and  that  one  or  other  of  the  parties  is  entitled  to  elect 
upon  whom  to  fasten  the  liability. 

§  452.  How  Subject  divided.  Such  being  the  general  nature 
of  the  subject,  it  will  be  found  convenient  to  treat  it  under  the 
following  heads : 

1.  The  duties  and  liabilities  of  the  agent  to  his  principal. 

2.  The  duties  and  liabilities  of  the  agent  to  third  persons. 

3.  The  duties  and  liabilities  of  the  principal  to  the  agent. 

4.  The  duties  and  liabilities  of  the  principal  to  third   persons. 

5.  The  duties  and  liabilities  of  third  persons  to  the  agent. 

6.  The  duties  and  liabilities  of  third  persons  to  the  principal. 

No  separate  consideration  of  the  rights  of  the  parties  is  in- 
tended, because,  as  will  be  seen,  the  duties  and  liabilities  of  one 
party  are  generally  reciprocally  the  rights  of  the  other. 

297 


THB  LAW   OF   AQEKOT. 


[Book  lY. 


CHAPTER    II. 

OF   THE   DUTIES  AND   LIABILITIES   OF    THE   AGENT    TO    HIS 

PRINCIPAL. 


§  453.  In  general — Duty  the  Measure 
of  Liability. 

I.  Agent  must  bb  loyal   to  his 
Trust. 

454.  Loyalty  to  his  Trust  the  first 

Duty  of  the  Agent. 

455.  May  not  put  himself  in  Rela- 

tions antagonistic  to  hia  Prin- 
cipal. 

456.  May  not  deal  in  Business  of 

his  Agency  for  his  own  Ben- 
efit. 

457.  Agent  authorized  to  purchase 

for  his  Principal  may  not 
purchase  for  himself. 

458.  Same  Subject — Same  Princi- 

ple applies  to  Leases. 

459.  Same    Subject  —  What    Evi- 

dence of  Trust  sufficient. 

460.  Same    Subject  — When    Rule 

does  not  apply. 

461.  Agent  authorized  to  sell  may 

not  become  the  Purchaser. 

462.  Agent  authorized  to  purchase 

may  not  purchase  of  himself. 

463.  To    what    Agents   this   Rule 

applies. 

464.  Further  of  this  Rule — Indirect 

attempts — Ratification . 

465.  This  Rule  cannot  be  defeated 

by  Usage. 

466.  Agent     may     purchase    with 

Principal's  Consent. 

467.  Agent    employed     to     settle 

Claim,  may  not  buy  and 
enforce  it  against  his  Princi- 
pal 

298 


468.  Agent  may  not  acquire  Rights 

against  his  Principal  based 
on  his  own  Neglect  or  De- 
fault. 

469.  Profits  made  in  the  Course  of 

the  Agency  belong  to  the 
Principal. 

470.  Same  Subject — Illustrations. 

471.  When   Principal    entitled    to 

Agent's  Earnings. 

472.  Same  Subject — Rule  does  not 

extend  to  mere  Gratuities  re- 
ceived by  the  Agent. 

II.  To  OBEY  Instructions. 

473.  Agent's  Duty  to  obey  Instruc- 

tions. 

474.  Results    of     Disobedience  — 

Agent  liable  for  Losses 
caused  by  it. 

475.  Same  Subject — Illustrations. 

476.  Form  of  Action — When  Agent 

liable  in  Trover. 

477.  Same  Subject— The  Rule  sta- 

ted— Intent  immaterial. 

478.  How  when  Agency  is  gratu- 

itous. 

479.  Exceptions  to  this  Rule. 

480.  Agent  not  bound  to  perform 

illegal  or  immoral  Act. 

481.  Departure   from   Instructions 

may  be  justified  by  sudden 

Emergency. 
48^.  Same  Subject — Limitations. 
483.  Where  the  Authority  has  been 

substantially  pursued,  Agent 

not     liable    for    immaterial 

Departure. 


Chap.  II.]  LIABILITY   OF   AGENT  TO   PRINCIPAL. 


§  484.  Where  Instructions  are  am- 
biguous, and  Agent  acts  in 
good  Faith. 

485.  How  affected  by  Custom. 

486.  Same    Subject  —  When    Pre- 

sumption conclusive. 

487.  No    Presumption  of  Disobe- 

dience. 

III.  Not  to  be  Negligent 

488.  In  general. 

489.  Difficulty   of  defining  Negli- 

gence. 

490.  The  general  Rule. 

491.  Consideration  of  this  Rule. 

492.  Same  Subject. 

493.  Same   Subject— Agent  bound 

to  exercise  usual  Precautions. 

494.  Same  Subject— Not  bound  to 

exercise  highest  Care. 

495.  Same  Subject— Good  Faith- 

Reasonable  Diligence. 

496.  Same  Subject  —  When  Agent 

warrants  Possession  of  Skill. 

497.  How  when  Agency  ia  gratui- 

tous. 

498.  Same  Subject— When  employ- 

ed in  a  Capacity  which  im- 
plies Skill. 

499.  Same  Subject— Bound  to  ex- 

ercise the  Skill  he  possesses. 

500.  Reasonable    Skill  — How  de- 

termined. 

601.  Agent   not  liable  for  unfore- 

seen Dangers. 

602.  Agent  presumed  to  have  done 

his  Duty. 

503.  Agent  not  liable  if  Principal 
also  negligent. 

604.  When  Agent  liable  for  Neg- 
lect of  Subagents. 

505.  Effect  of  Ratification  upon  the 
Agent's  Liability. 

606.  The  Measure  of  Damages. 

507.  Same  Subject  —  Judgments, 
Costs,  Counsel  Pees. 

608.  Illustrations  of  this  Rule. 

1.  Neglect  of  Agent  in  making  Loans. 
509.  Liable  for  resulting  Loss. 


S.  Neglect  of  Agent  to  Effect  Insurance. 

§  510.  When  liable  for  Loss. 

S.  Neglect  of  Agent  in  making  Col- 
lections. 

511.  Liable  for  Loss  from  Negli- 

gence. 

512.  Same    Subject  —  Neglect    in 

making  Remittances. 

513.  Same    Subject— Liability   for 

Neglect  of  Correspondents 
and  Subagents. 

514.  Same   Subject  —  Liability  of 

Banks. 

515.  Same    Subject — Liability    of 

Attorneys. 

516.  Same  Subject  —  Liability    of 

Mercantile  or  Collection 
Agencies. 

517.  Same  Subject  —  Liability    of 

Express  Companies. 

518.  Same  Subject — The  Measure  of 

Damages. 

519.  Principal's  Right    of  Action 

against  Subagents. 

520.  Del  Credere  Agents— How  li- 

able to  Principal. 

621.  When  Agent  liable  for  selling 

to  irresponsible  Parties. 

IV.  To  Account  for  Money  and 
Property. 

622.  In  general. 

523.  Account  only  to    Principal — 

Joint  Principal. 
534,  Subagents  —  Account     to 

whom. 
525.  Agent    may  not    dispute  hia 

Principal's  Title. 

626.  May  not  allege    Illegality  of 

Transaction  to  defeat  Prin- 
cipal's Claim. 

627.  When    may    maintain    Inter- 

pleader. 

528.  Agent's  Duty  to  keep  correct 

Accounts. 

529.  Duty  to  keep  Principal's  Prop- 

erty and  Funds  separate 
from  his  own — Liability  for 
commingling. 


299 


§453. 


THE   LAW   OF    AGENCY. 


[Book  lY. 


630.  When  Agent  should  account. 

631.  Necessity  for  Demand  before 

Action. 
633.  When  Agent  liable  for  Interest. 

633.  When    Liability     barred    by 

Statute  of  Limitations. 

634.  Form  of  Action — When  equi- 

table. 


§  535.  Of  the  Right  of  Set-ofT. 
536.  How  far  Principal  may  follow 

trust  Funds. 
637.  Same  Subject— Illustrations. 

V.   To  GIVB  NOTICB. 

538.  Duty  to  give  Notice  of  Facts 
material  to  his  Agency. 


§  453.  In  general— Duty  the  Measure  of  Liability,  It  is  evi- 
dent that  the  extent  of  the  liability  of  the  agent  to  his  principal 
is  to  be  determined  by  ascertaining  the  nature  and  scope  of  the 
duty  owed  to  him.  Liability  follows  from  the  non-performance 
of  a  legal  duty ;  and  if,  in  what  sliall  be  hereafter  said,  that  fact 
may  not  in  each  instance  be  mentioned,  it  must  be  constantly 
understood. 

The  duties  which  the  agent  owes  his  principal  are  numerous, 
and  many  of  them  are  peculiar.  It  is  scarcely  within  the  limits 
of  an  ordinary  treatise  to  enter  minutely  into  all  the  questions  that 
may  arise,  but  it  is  possible  to  so  group  them  under  the  respective 
principles  that  govern  them  as  to  furnish  a  rule,  not  only  for  the 
same  states  of  fact,  but  also  for  similar  ones. 


AGENT  MUST  BE  LOYAL  TO  HIS  TRUST. 

§  454.     Loyalty  to  his  Trust,   the  first  Duty  of  the  Agent, 

Loyalty  to  his  trust  is  the  first  duty  which  the  agent  owes  to  his 
principal.  Without  it,  the  perfect  relation  cannot  exist.  Reli- 
ance upon  the  agent's  integrity,  fidelity  and  capacity  is  the  mov- 
ing  consideration  in  the  creation  of  all  agencies ;  in  some  it  is  so 
much  the  inspiring  spirit,  that  the  law  looks  with  jealous  eyes  up- 
on the  manner  of  their  execution,  and  condemns,  not  only  as  in- 
valid as  to  the  principal,  but  as  repugnant  to  the  public  policy, 
everything  which  tends  to  destroy  that  reliance.' 

8  455.  May  not  put  himself  in  Relations  antagonistio  to  hia 
Principal.  It  follows  as  a  necessary  conclusion  from  the  princi- 
ple last  stated,  that  the  agent  must  not  put  himself  into  such  re- 
lations that  his  interests  become  antagonistic  to  those  of  his  prin- 

•  Keighler  v.  Savage  Mnfg  Co.  12  Md.  383,  71  Am.  Dec.  600. 
300 


Cliap.  II.]  LIABILITY    OF    AGENT   TO    PKINCIPAL.  §  457. 

cipal.  Indeed,  this  rule  is  but  a  restatement  of  the  previous  one, 
and  is  based  upon  the  same  fundamental  principles.  The  agent 
will  not  be  permitted  to  serve  two  masters,  without  the  intelli- 
gent consent  of  both.'  As  is  said  by  a  learned  judge :  "  So  care- 
ful is  the  law  in  guarding  against  the  abuse  of  fiduciary  relations, 
that  it  will  not  permit  an  agent  to  act  for  himself  and  his  princi- 
pal in  the  same  transaction,  as  to  buy  of  himself,  as  agent,  the 
property  of  his  principal,  or  the  like.  All  such  transactions  are 
void,  as  it  respects  the  principal,  unless  ratified  by  him  with  a 
full  knowledge  of  all  the  circumstances.  To  repudiate  them,  he 
need  not  show  himself  damnified.  Whether  he  has  been  or  not 
is  immaterial.  Actual  injury  is  not  the  principle  the  law  pro- 
ceeds on  in  holding  such  transactions  void.  Fidelity  in  the  agent 
is  what  is  aimed  at,  and  as  a  means  of  securing  it,  the  law  will  not 
permit  the  agent  to  place  himself  in  a  situation  in  which  he  may 
be  tempted  by  his  own  private  interest  to  disregard  that  of  his 
principal."*  "  This  doctrine,"  to  speak  again  in  the  beautiful  lan- 
guage of  another,  "  has  its  foundation,  not  so  much  in  the  commis- 
sion of  actual  fraud,  as  in  that  profound  knowledge  of  the  human 
heart  which  dictated  that  hallowed  petition  *  Lead  us  not  into 
temptation  but  deliver  us  from  evil,'  and  that  caused  the  an- 
nouncement of  the  infallible  truth  that  '  a  man  cannot  serve  two 
masters.' "  ' 

§  456.  May  not  deal  in  Business  of  his  Agency  for  his  own 
Benefit.  Akin  to  these  rules  and  founded  upon  the  same  princi- 
ples, is  the  other  rule  that  the  agent  may  not  deal  in  the  business 
of  his  agency  for  his  own  benefit.  His  duty  to  his  principal  re- 
quires that  his  efforts  shall  be  in  the  behalf  and  for  the  benefit 
of  his  principal.  He  cannot  perform  this  duty  if  he  is  constantly 
attempting  to  use  his  agency  for  his  own  purposes.* 
Following  these  principles  into  details,  we  have : — 
§  457.  Agent  authorized  to  purchase  for  his  Principal  may  not 
purchase  for  himself.     An  agent  instructed  to  purchase  property 

*  Bentley  e.   Craven,  18  Beav.  76;  dale,   2  Sneed.  (Tenn.)  596,  64  Am. 

European,  &c.   Ry  Co.   «.  Poor,  59  Dec.  775. 

Me.    277,   re-reported  in  note  to  59  *  Switzer  v.  Skiles,   3  Oilman  (111.) 

Am.  Rep.  468.  529;    44  Am.   Dec.    723;   Bunker   v. 

»  Manning,  J.  in  People  t>.  Town-  Miles,  30  Me.  481,  50  Am.  Dec.  632; 

ship  Board,  11  Mich.  222.  Miller  v.   Davidson,    3   Oilman  (111.) 

»  Cakuthkrs,  J.  in  Tisdale  v.  Tis  518,  44  Am.  Dec.  715. 

301 


§45S. 


THE    LAW   OF    AGENCY. 


[Book  lY. 


for  his  principal  will  not  be  permitted,  without  his  principal's 
knowledge  and  consent,  to  become  the  purchaser  of  the  same 
property  for  himself ;  and  if  he  makes  such  purchase,  he  will,  al- 
though he  purchased  with  his  own  money,  be  considered  as  hold- 
ing the  property  in  trust  for  his  principal,  and  the  latter  upon 
repaying  or  tendering  him  the  amount  of  the  purchase  price  and 
his  reasonable  compensation,  may  by  proper  proceeding  in  equity 
compel  a  conveyance  to  himself,*  or  where  ejectment  is  an  equi- 
table remedy,  he  may  maintain  that  action.' 

And  what  the  agent  cannot  do  directly  he  will  not  be  permitted 
to  do  indirectly,  as  by  causing  the  property  to  be  purchased  osten- 
sibly by  another,  but  in  reality  for  his  own  benefit.  The  court 
will  look  behind  the  appearance  sought  to  be  put  upon  the  trans- 
action, and  determine  the  case  according  to  its  true  inwardness.* 

§  458.     Same   Subject.  —  Same   Principle   applies   to   Leases. 


•  Rose  V.  Hayden,  35  Kan.  106,  57 
Am.  Rep.  145 ;  Van  Home  v.  Fonda, 
5  Johns.  (N.  Y.)  Ch.  38S;  Sweet  t>, 
Jacocks,  6  Paige  (N.  T.)  355,  31  Am. 
Dec.  253;  Pinnock  v.  Clough,  16  Vt. 
500,  42  Am.  Dec.  521;  Dennis  v.  Mc- 
Cagg,  33  111.  444;  Hitchcock  v.  Wat- 
son, 18  111.  289 ;  McMurry  v.  Mobley, 
39  Ark.  309;  Ringo  v.  Binns,  10  Pet. 
(U.  S.)  269;  Wolford  v.  Herrington, 
74  Penn.  St.  311,  15  Am.  Rep.  548; 
Von  Hurter  v.  Spengeman,  17  N.  J. 
Eq.  185;  Van  Epps  v.  Van  Epps,  9 
Paige  (K  T.)  237;  Torrey  v.  Bank  of 
Orleans,  Id.  649;  Eshleman  v.  Lewis, 
49  Penn.  St.  410;  Smith  v.  Brother- 
line,  62  Penn.  St.  461;  Krutz  v. 
Fisher,  8  Kans.  90;  Fisher  v.  Krutz,  9 
Id.  501;  Winn  v.  Dillon,  27  Miss. 
494;  Wellford  v.  Chancellor,  5  Gratt. 
(Va.)  39;  Church  v.  Sterling,  16  Conn. 
383;  Rhea  v.  Puryear,  26  Ark.  344; 
Matthews*.  Light,  33  Me.  305;  Mc- 
Mahon  v.  McGraw,  26  Wis.  615;  Bar- 
ziza  V.  Story,  39  Tex.  354;  Chastaint). 
Smith,  30  Ga.  96;  Cameron®.  Lewis, 
56  Miss.  76;  Gillenwaters  v.  Miller, 
49  Miss.  150;  Sanford  v.  Norris,  4 
Abb.  App.  Dec.  (N.  Y.)  144;  Parkist 
•.  Alexander,   1  Johns.    (N.  Y.)  Ch. 


394;  Wood  v.  Rabe,  96  N.  Y.  414,  48 
Am.  Rep.  640;  Burrell  v.  Bull,  3  San- 
ford (N.  Y.)  Ch.  15;  Bennett  v.  Aus- 
tin, 81  N.  Y.  308;  Hargrave  v.  King, 
5Ired.  (N.  C.)  Eq.  430;  KendalU. 
Mann.  11  Allen  (93  Mass.)  15;  Jack- 
son V.  Stevens,  108  Mass.  94;  McDon- 
ough  V.  O'Neil,  113  Mass.  92;  Sand- 
f  OSS  V.  Jones,  35  Cal.  481 ;  Snyder  v. 
Walford,  33  Minn.  175;  Soggins  v. 
Heard,  31  Miss.  426;  Seichrist's  Ap- 
peal, 66  Penn.  St.  237;  Peebles  v. 
Reading,  8  Serg.  &  R.  (Penn.)  484; 
Onson  V.  Cown,  22  Wis.  329;  Bryant 
V.  Hendricks,  5  Iowa,  256;  Judd  v. 
Mosely,  30  Iowa,  424;  Jenkins  v.  Eld- 
redge,  3  Story,  183;  Baker  t>.  Whit- 
ing, 3  Sumner,  476;  Rothwell  v. 
Dewees,  2  Black,  613. 

s  Rose  V.  Hayden,  supra  ;  McKay  « 
Williams  (Mich.),  35  N.  W.  Rep.  159. 

•  Cameron  t>.  Lewis,  56  Miss.  76; 
Eldridge  ».  Walker,  60  111.  230; 
Hughes  «.  Washington,  72  111.  84; 
Rogers  ».  Rogers,  1  Hopk.  (N.  Y.) 
524;  Kruse  v.  Steflens,  47  111.  112; 
Forbes  <o.  Halsey,  26  N.  Y.  53;  Da- 
voue  t).  Fanning,  3  Johns.  (N.  Y.) 
Ch.  257;  Beaubien  v.  Poupard,  Harr. 
(Mich.)  Ch.  200. 


302 


Oliap.  11. ]  LIABILITY    OF    AGENT   TO    PKINCIPAL.  §  459. 

This  principle  is  of  course  not  confined  to  transactions  involving 
an  absolute  purchase ;  it  includes  leasings  and  other  similar  ar- 
rangements as  well.  And  it  is  immaterial  that  the  agent  was  not 
directly  authorized  to  purchase  or  lease ;  he  will  not  be  permitted 
to  avail  himself  of  the  knowledge  that  his  principal  desires  or 
is  attempting  to  negotiate  such  a  transaction  in  order  to  forestall 
him  or  to  make  a  profit  to  himself. 

An  illustration  of  this  principle  is  found  in  a  recent  case  in 
California.  There  a  warehouseman,  occupying  premises  under  a 
lease  about  to  expire,  was  negotiating  for  a  renewal.  His  clerk, 
who  from  his  access  to  his  principal's  books  and  papers  and  his 
knowledge  of  the  business,  knew  of  these  facts,  secretly  obtained 
a  lease  of  the  premises  to  himself  and  another  person,  who  was 
a  party  to  the  scheme,  by  telling  the  landlord  that  his  principal 
would  probably  give  up  the  premises  at  the  expiration  of  his 
term.  But  the  court  directed  a  conveyance  to  the  principal,  say- 
ing that  an  agent  should  not,  any  more  than  a  trustee,  adopt  a 
course  that  will  operate  as  an  inducement  to  postpone  the  princi- 
pal's interest  to  his  own  ;  and  that  an  agent  or  subagent  who 
uses  the  information  he  has  obtained  in  the  course  of  his  agency 
as  a  means  of  buying  or  leasing  for  himself  will  be  compelled  to 
convey  to  the  principal.' 

And  the  same  result  was  reached  in  a  similar  case  in  Illinois, 
where  a  confidential  agent  of  the  lessee  of  a  theater,  shortly  be- 
fore his  principal's  lease  would  expire,  secretly  procured  a  lease 
of  the  theater  for  a  new  term  to  himself  though  at  a  larger  rent, 
denying  to  his  principal  that  he  was  trying  to  secure  the 
lease.  The  court  held  that  the  lease  was  acquired  in  violation  of 
the  agent's  duty  and  presumably  because  of  his  peculiar  means 
of  knowledge  of  the  profits  of  the  business,  and  that  a  personal 
benefit  thus  obtained  by  an  agent  would,  in  equity,  inure  to  the 
benefit  of  the  principal.* 

§  459.  Same  Subject  —  What  Evidence  of  Trust  sufacient. 
In  order  to  establish  such  a  trust  in  real  estate,  if  it  be  denied,  it 
has  been  regarded  as  the  settled  rule  that  the  evidence  of  it  must, 
to  satisfy  the  statute  of  frauds,  be  in  writing,  or  the  principal 

1  Gower  v.  Andrews  (1881),  59  Cal.      39,    48    Am.    Rep.    541.      See    also 

119,  43  Am.  Rep,  242.  Gnimley  v.   Webb,  44  Mo.  444,   100 

•Davis  e.  Hamlin  (1883),   108  HI.       Am.  Dec.  804;    Vallette  v.  Tedens, 

122  111.  607,  3  Am.  St.  Rep.  502. 
303 


§459. 


THE   LAW    OF    AGENCY. 


[Book  lY. 


must  have  paid  or  furnished  the  purchase  money."  But  in  a  re- 
cent case  in  Kansas,  it  is  held  after  an  elaborate  resum^  of  the 
authorities  that,  though  the  agent  was  orally  employed,  and  though 
he  purchased  with  his  own  money,  the  trust  arose,  and  that  the 
principal  on  tendering  the  amount  so  paid,  and  a  reasonable  com- 
pensation for  his  services,  could,  if  the  agent  refused  to  convey  to 


•  "Where  a  man  merely  employs  an- 
other person  by  parol,  as  an  agent  to 
buy  an  estate,  who  buys  it  for  him- 
self and  denies  the  trust,  and  no  part 
of  the  purchase  money  is  paid  by  the 
principal,   and  there    is  no  written 
agreement,    he    cannot    compel    the 
agent  to  convey  the  estate  to  him,  as 
that  would  be  directly  in  the  teeth  of 
the  statute  of  frauds."    2  Sugden  on 
Vendors  (14th  ed.)  703.     Same  rule: 
Burden  v.  Sheridan,  36  Iowa,  125,  14 
Am.  Rep.  505;  Bartlettc.  Pickersgill, 
1  Eden, 515,  cited  in  1  Cox,  15,  4  East, 
577.  note,  4  Burr,  2255;  Botsford  v. 
Burr,  a  Johns.  (N.  Y.)  Ch.  405;  Perry 
V.  McHenry,    13  111.  227;    Collins  v. 
Sullivan,  V^C  Mass.   461;  Kendall  9. 
Mann,  11  Allen  (Mass.)  15;  Davis  v. 
Wetherell    11  Allen  (Mass.)  19;  Par- 
sons t.  Phelan,  134  Mass.  419;  Bar- 
nard 'J.  Jewett,  97  Mass.  87;  Dodd  v, 
Wakeman,  26  N.  J.  Eq.  484;  Fickett 
V.  Durham.  109  Mass.  419;  Firestone 
V.   Firestone,   49   Ala.    128;  Allen  «. 
Richard,  83  Mo.  55;  Nixon's  Appeal, 
63  Penn.  St.  279;  Steere  v.  Steere,  6 
Johns.  (N.  T.)  Ch.  1,  9  Am  Dec.  256; 
Walter  e.  Klock,  55  111.  362;  Watson 
V.  Erb,  33  Ohio  St.   35;  Pinnock  v. 
Clough,  16  Vt.  500,  43  Am.  Dec.  521; 
Hidden  v.  Jordan,   21   Cal.    92.     In 
Fickett  V.  Durham,  supra,  Ambs,  J., 
says: — 

"  There  is  no  doubt  of  the  correct- 
ness of  the  doctrine,  that,  where  the 
purchase  money  is  paid  by  one  per- 
son and  the  conveyance  taken  by  an- 
other, there  is  a  resulting  trust  created 
by  implication  of  law  in  favor  of  the 


former.     And  where  a  part  of  the 
purchase  money  is  paid  by  ono,  and 
the  whole  title  is  taken  by  the  other, 
a  resulting  trust  pro  tanto  may  in  like 
manner,   under  some  circumstances, 
be  created."  McGowan  v.  McGowan, 
14  Gray  (Mass.)  119;   Livermore  v. 
Aldrich,   5  Gush.  (Mass.)  431,     The 
ordinary  case  of  trusts  of  this  charac- 
ter is,  where  the  purchaso  money  is 
paid  by  one  party  and  the  conveyance 
is  made    to    another.     "  The  whole 
foundation  of  the  trust  is  the  pay- 
ment of  the  money,  and  that  must  be 
clearly  proved.      If,    therefore,    the 
party  who  sets  up  a  resulting  trust 
made  no  payment,  he  cannot  be  per- 
mitted to  show  by  parol  proof  that 
the  purchase  was  made  for  his  benefit 
or  on  his  account."   Botsford  v.  Burr, 
a  Johns.  (N.  Y.)  Ch.   405.   409.     He 
may  show  that  although  not  paid  by 
his  own  hand  it  was  substantially  his 
money,  by  proof  that  the  defendant 
who  made  the  payment  had  agreed  to 
lend  him  the  money,  to  be  repaid  at 
an  agreed  time  with  interest,  and  to 
hold    the  title    in  the   meantime   as 
security.     Page  v.  Page,  8  N.  H,  187. 
But  this  has  been  said  to  be  a  danger- 
ous species  of  evidence,  and  the  pay- 
ment by  the  party  setting  up  such  a 
trust  is  required  to  be  clearly  proved. 
Getman  v.  Getman,  1  Barb.   Ch.  (N. 
Y.)  499.     Kendall  v.  Mann,  11  Allen, 
(Mass.)  15.    It  must  clearly  appear 
that  it  was  the  plaintiff's  money  when 
paid.     Davis  v.  Wetherell,  11  Allen 
(Mass. )  19. 


S04 


Chap.  II.]  LIABILITY   OF   AGENT   TO    PRINCIPAL.  §  459. 

him,  recover  the  land  in  ejectment,  ejectment  being  in  that  State 
an  equitable  as  well  as  a  legal  remedy.* 


•  Rose  V.  Hayden,  35  Kans.  106,  57 
Am.  Rep.  145.     In  this  case  Valen- 
tine, J.,  says:     "la  this  State,  the 
action  of  ejectment  is  an  equitable 
remedy  as  well  as  a  legal  remedy,  and 
in  such  action  the  party  holding  the 
paramount     title,  whether  legal     or 
equitable,  or  both,  or  partly  one  and 
partly  the  other,  may  recover.     The 
only  question  then  for  us  to  consider 
in  this  case  is,  which   has  the  para- 
mount title  to  the  property  in  con- 
troversy—  the  plaintiff  or  the  defend- 
ant?   That  the  defendant  with  his 
partner  was  the  agent  of  the  plaintiff 
to  carry  on  negotiations  for  the  pur- 
chase of  the  lots  in  controversy  for 
the  plaintiff,  there  can  be  no  question, 
and    but    little    question    as   to  the 
nature  and  character  of  the  agency. 
The  defendant,  with  his  partner,  was 
simply  to  carry  on  negotiations  for 
the  purchase  of  the  lots,   under  the 
directions    and    instructions  of   the 
plaintiff  and  for  the  plaintiff.    Under 
such  circumstances  could  the  defend- 
ant purchase  the  property  for  himself, 
in  his  own  name  and  with  his  own 
money,  and  take  the  title  to  himself 
without  becoming  a  trustee,  for  the 
plaintiff,  at  the  option  of  the  plaintiff, 
and    holding    the  legal   title  to   the 
property  merely  in  trust  for  the  plain- 
tiff, and  until  the  plaintiff  should  re- 
pay him  the  amount  which  he  had 
expended    in    the    purchase  of    the 
property    and    reasonable    compen- 
sation    for    his    services?     Except 
for    the    statute    of     frauds,    which 
we     shall     hereafter    consider,    we 
think  he  could  not.     Krutz  v.  Fisher, 
8  Kans.  90;  Fisher  v.  Krutz,  9  Kans. 
501;  Lees  v.  Nutall,  IRuss.  &  M.  Ch. 
63;  same  case,   on  appeal,  2  Myl.  & 
K.  819;  Taylor  v.  Salmon,  4  Myl.  & 
Cr.  134;    Heard  v.   Pilley,  L.   R.,  4 


Ch.  App.  548;  Massie  ».  Watts,  10 
U.  S.  (6  Cranch.)  148;  Winn  v.  Dil- 
Ion.  27  Miss.  494;  Wellford  v.  Chan- 
cellor, 5  Gratt.  (Va.)  39;  Church  v. 
Sterling,  16  Conn.  383;  Rhea  v.  Pur- 
year,  26  Ark.  344;  Sweet  v.  Jacocks, 
6  Paige  (N.  Y.  Ch.)  355,  464;  s.  c,  31 
Am.  Dec.  252;  Matthews??.  Light,  33 
Me.  305;  McMahon  v.  McGraw,  26 
Wis.  615;  Barziza ».  Story,  39  Tex. 
354.  See  also  the  various  cases  here- 
after cited. 

"But  can  the  statute  of  frauds 
make  any  difference  ?  Under  the 
authorities  cited  by  the  defendant, 
plaintiff  in  error,  he  claims  that  it 
not  only  can  but  does.  Under  such 
authorities  he  claims  that  plaintiff 
has  no  remedy  and  is  not  entitled  to 
any  relief.  The  following  are  the 
principal  authorities  cited  by  the 
defendant:"  Citing,  2  Sugd.  Ven- 
dors, 2  Story  Eq.  Jur. ;  Bartlett  v. 
Pickersgill;  Burden  v.  Sheridan; 
Allen  V.  Richard;  Botsford  v.  Burr; 
Nixon's  Appeal;  Steere  v.  Steere; 
Perry  v.  McHenry;  Walter©.  Klock; 
Watson  V.  Erb;  Pinnock  v.  Clough, 
Hidden  v.  Jordan,  all  supra,  note  1. 

"  Under  the  authorities  cited  by  the 
plaintiff,  it  is  claimed  that  the  statute 
of  frauds  makes  no  difference.  It  is 
claimed  that  with  or  without  tlie 
statute  of  frauds,  a  trust  resulted 
by  operation  of  law  in  favor  of  the 
plaintiff,  and  that  the  defendant 
simply  holds  the  legal  title  to  the 
property  in  trust  for  the  plaintiff. 
The  principal  authorities  cited  by  the 
plaintiff,  in  addition  to  those  which 
we  have  already  cited  for  hirn  are  the 
following:  Chastain  v.  Smith.  30 
Ga.  96;  Cameron  v.  Lewis,  58  Miss. 
76;  Gillenwaters  v.  Miller,  49  Miss. 
150;  Sanford  v.  Norris,  4  Abb.  App. 
Dec.    144;  Parkist  v.   Alexander,    1 


20 


305 


§460. 


THE   LAW   OF   AGENCY. 


[Book  ly. 


§  460.  Same  Subject— Wlien  Ride  does  not  apply.  But  if 
the  agent  be  not  emploj^ed  to  obtain  the  conveyance,  but  for  an 
entirely  collateral  matter, — as  to  bring  his  principal  into  commu- 
nication with  Bomc  one  who  would  lend  him  the  money  with 
which  to  make  the  purchase,  although  the  agent,  with  secret  in- 
tention to  buy  the  land  himself,  dissuades  the  principal  from 
seeking  other  assistance  in  finding  the  money, — no  trust  is  cre- 
ated which  would   be  violated  if   the  agent  purchases  the  land 


Johns.  Ch.  394;  Wood  v.  Rabe,  96  N. 
T.  414;  8.  c,  48  Am  Rep.  040;  Bur- 
rell  V.  Bull,  3  Sandf,  Ch.  15;  Bennett 
V.  Austin,  81  N.  Y.  808;  Hargrave  v. 
King,  5  Ired,  (N.  0.)  Eq.  430;  Ken- 
dall V.  Mann,  11  Allen  (93  Mass.)  15; 
Jackson  «.  Stevens,  108  Mass.  94; 
McDonough  v.  O'Neil,  113  Mass.  92; 
Sandfoss  v.  Jones,  35  Cal.  481 ;  Sny- 
der «.  Wolford,  33  Minn.  175;  Sog- 
gins  V.  Heard,  31  Miss.  426;  Seichrist's 
Appeal,  66  Penn.  St.  237;  Peebles  v, 
Reading,  8  Serg.  &  R.  484;  Onson  v. 
Cown,  23  Wis.  3'39;  Br3'ant  v.  Hen- 
dricks, 5  Iowa,  256;  Bannon  v.  Bean, 
9  Iowa,  395;  Judd  v.  Mosely,  30  Iowa, 
424;  Jenkins  v.  Eldredge,  3  Story 
(U.  S  CO  183,  283  to  290;  Baker  v. 
Whiting,  3  Sumner  (U.  S.  C.  C.)  476. 
482  et  seq. ;  Rothwell  v.  Dewees,  67  U. 
S.  (2  Black,)  613;  Cave  v.  McKenzie, 
48  L.  J.  Ch.  Div.  564;  37  L.  T.,  N.  S 
218;  Fisher  Dig.  1877,  400;  McCor- 
mick  V.  Grogan,  4  Eng.  &  Irish. 
Appeals,  L.  R.  97;  Bond  v.  Hopkins, 
1  Sch.  &  Lef.  433;  Dale  v.  Hamilton, 
5  Hare  Ch.  369. 

TLie  statute  of  frauds  upon  which 
the  defendant  relies  will  be  found  in 
Bections  5  and  8  of  the  act  of  the  leg- 
islature of  Kansas  relating  to  frauds 
and  perjuries.  The  statute,  so  far  as 
it  is  necessary  to  quote  it,  reads  aa 
follows: 

'Section  5.  No  leases,  estates  or 
interests  of.  In  or  out  of  lands,  ex- 
ceeding one  year  in  duration,  shall  at 
any  time  hereafter  be  assigned  or 
granted,  unless  it  be  by  deed  or  note. 


in  writing  signed  by  the  party  so 
assigning  or  granting  the  same,  or 
their  agents  thereunto  lawfully  au- 
thorized, by  writing  or  by  act  and 
•operation  of  law.' 

'Section  6.  No  action  shall  be 
brought  whereby  to  charge  a  party, 

•  *  *  upon  any  contract  for  the 
sale  of  lands,  tenements  or  hereditar 
ments,  or  any  interest  in  or  concern- 
ing them.  *  *  *  unless  the  agree- 
ment upon  which  such  action  shall 
be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing  and 
signed  by  the  party  to  be  charged 
therewith,  or  some  other  person 
thereunto  by  him  or  her  lawfully  au- 
thorized.' 

The  statute  relating  to  trusts  and 
powers,  so  far  as  it  is  necessary  to 
quote  it,  reads  as  follows: 

'  Section  1.  No  trust  concerning 
lands,  except  such  as  may  arise  by 
implication  of  law,  shall  be  created, 
unless  in  writing,  signed  by  the  party 
creating  the  same,  or  by  his  attorney 
thereto  lawfully  authorized  in  writ- 
ing. ' 

The  statute  relating  to  convey- 
ances, so  far  as  it  is  necessary  to 
quote  it,  reads  as  follows; 

'  Section  8.  Declarations  or  crea- 
tions of  trusts  or  powers,  in  relation 
of  real  estate,  must  be  executed  in 
the  same  manner  as  deeds  of  convey- 
ance; but  this  provision  does  not 
apply  to  trusts  resulting  from  th« 
operation  or  construction  of  law.' 

•  •    »    The  controlling  question 


306 


Chap.  II.]  LIABIi-ITT    OF    AGENT   TO    PKlifCIPAL. 


§461. 


himself  with  his  own  money ; '  and  if  the  agent  first  expressly 
relinquishes  his  agency  and  afterwards  buys  with  his  own  funds 
no  trust  can  arise.* 

So  where  three  parties  agreed  to  make  a  purchase  for  their 
joint  benefit,  but  one  of  them  when  called  upon  to  furnish  his 
«hare  of  the  necessary  funds  declined  to  do  so,  and  the  two  oth- 
ers went  on  and  made  the  purchase,  it  was  held  that  no  trust 
could  arise  in  favor  of  the  one  who  had  not  joined.* 

§  461.  Agent  authorized  to  sell  may  not  become  the  Pur- 
chaser. For  the  same  reasons,  an  agent  authorized  to  sell  or  let 
his  principal's  property,  cannot  without  the  latter's  consent,  be- 
come the  purchaser  or  lessee.*     If  he  does  so,  the  principal  may 


in  this  case  is  not  whether  the  princi- 
pal advanced  the  purchase  money  or 
not,  but  it  is  whether  in  equity  and 
good  conscience  the  agent  who  in 
fact  purchased  the  property  with  his 
own  money  in  his  own  name,  in  vio- 
lation of  his  agreement  with  his  prin- 
cipal and  in  abuse  of  the  confidence 
reposed  in  him  by  his  principal,  can 
be  allowed  to  retain  the  fruits  of  his 
perfidy.  The  weight  of  authority 
is,  we  think,  that  he  cannot.  Sand- 
ford  V.  Norris,  4  Abb.  N.  Y.  Ct.  App. 
144;  Wellford  v.  Chancellor,  5  Gratt. 
(Va.)  39;  Onson  «.  Cown,  32  Wis.  329; 
Winn  V.  Dillon.  27  Miss.  494;  Cam- 
eron V.  Lewis,  56  Miss.  76;  Gillen- 
wuters  V.  Miller,  49  Miss.  150;  Chas- 
tain  V.  Smith,  30  Ga.  96;  Heard  v. 
Pilley,  L.  R.,  4  Ch.  App.  548;  Lees  r. 
Nuttall,  1  Russ.  &  M.  Ch.  53;  same 
cases  affirmed  on  appeal,  2  Myl.  & 
K.  Ch.  819;  Taylor  v.  Salmon,  4  Myl. 
&  C.  Ch.  134;  Cave  v.  Mackenzie, 
Fisher  Ann.  Dig.  (1877),  400,  Baker  i>. 
Whiting.  3  Sumner  (U.  S.  C.  0.)  476; 
Bnyder  v.  Wolford,  33  Minn.  175; 
Peebles  v.  Reading,  8  Serg.  &  R. 
(Peun.)  484,  Burrell  v.  Bull,  3  Sandf. 
Ch.  (N.  Y.)  15;  and  other  cases  here- 
tofore cited." 

•  Collins  V.  Sullivan.  135  Mass.  461, 
distinguishing  Lees  v.  Nuttall,  1  Russ. 
&  Myl.  53,  B.   c,   2  Myl.   &  K.  819, 


and  Parkist  «.  Alexander,  1  Johns. 
(N.  Y.)  Ch.  394,  on  the  ground  that 
there  the  principal  had  a  previous 
interest  in  the  land,  at  least  honor- 
ary, as  by  oral  agreement  with  the 
owner,  and  the  agent  was  employed 
for  the  very  purpose  of  procuring  or 
completing  the  title. 

s  First  Nat.  Bank  v.  Bissell,  2  Mc- 
Crary  (U.  S.  C.  C.)  73. 

3  Yeager's  Appeal,  100  Penn.  St. 
88. 

*  People  «.  Township  Board,  11 
Mich.  223;  Clute  v.  Barron,  2  Mich. 
194;  D  wight  v.  BIackmar,2  Mich.  330, 
57  Am.  Dec.  130;  Moore  v.  Mandle- 
baum,  8  Mich.  433;  Powell  v.  Conant, 
33  Mich.  396;  Merryman  v.  David,  31 
111.  404;  Kerfoot  v.  Hyman,  52  111. 
513;  Coltom  v.  Holliday,  59  111.  170; 
Mason  v.  Bauman,  63  111.  76;  Stone  v. 
Daggett,  73  111.  367;  Tcwksbury  b. 
Spruance,  75  111.  187;  Hughes  v. 
Washington.  72  111.  84;  Ruckman  v. 
Bergholz,  37  N.  J.  L.  437;  Bain  o. 
Brown,  56  N.  Y.  285;  Tynes  v.  Grim- 
stead,  1  Tenn.  Ch.  503;  Cumberland 
Coal  Co.  V.  Sherman,  30  Barb.  (N.  Y.) 
553;  Copeland  v.  Mcrcautile  lus.  Co. 
6  Pick.  (Mass.)  193;  Parker  v.  Vose, 
45  Me.  54;  White  ».  Ward,  26  Ark. 
445;  Stewart  v.  Mather,  ;]3  Wis.  344; 
Marsh  v.  Whitmore,  21  Wall.  (U.  S.) 
178;    Scott   «.    Mann,  36  Tex.    157; 


307 


§  462.  THE   LAW   OF    AGENCY.  [Book  lY. 

repudiate  it  and  recover  back  his  property/  Here,  too,  as  in  the 
ipreceding  cases,  the  law  looks  at  the  natural  and  legitimate  ten- 
dency of  such  transactions,  and  not  at  the  motive  of  the  agent  in 
;any  given  case.  This  tendency  is  demoralizing,  and  the  fact  that 
'in  a  certain  case  the  agent's  motive  was  honorable,  or  that  the 
result  is  more  beneficial  to  the  principal,  will  make  no  difference 
(if  the  latter  chooses  to  repudiate  if  Said  a  learned  judge :  "  If 
Buch  contracts  were  to  be  held  valid,  until  shown  to  be  fraudu- 
lent or  corrupt,  the  result,  as  a  general  rule,  would  be  that  they 
,must  be  enforced  in  spite  of  fraud  or  corruption.  Hence  the 
;only  safe  rule  in  such  cases  is  to  treat  the  contract  as  void,  with- 
out reference  to  the  question  of  .fraud  in  fact,  unless  aflBrmed  by 
the  opposite  party.  This  rule  appears  to  me  so  manifestly  in 
.accordance  with  sound  public  policy  as  to  require  no  authority 
for  its  support." ' 

§  462.  Agent  authorized  to  purchase  may  not  purohase  of 
himself.  An  agent  authorized  to  purchase  or  hire  property  for 
his  principal,  will  not,  without  the  intelligent  consent  of  his 
principal,  be  permitted  to  purchase  or  hire  of  himself;  and  if  he 
does  so,  the  principal  is  not  bound,  but  may  repudiate  the  trans- 
action. This  rule  is  founded  upon  the  same  principles  as  the 
preceding  ones.  The  law  will  not  permit  the  agent  to  put  him- 
self in  a  position  where  there  is  such  abundant  opportunity,  if 
not  temptation,  to  take  advantage  of  his  relations  for  his  own 
benefit.*' 

And  it  makes  no  difference  that  the  intention  of  the  agent  was 
honest  and  the  result  of  his  action  might  be  to  the  advantage  of 

Francis  c.  Kerker,  85  111.  190;  Qrum-  *  Louisville  Bank  «.  Gray,  84  Ky. 

ley  V.  Webb,  44  Mo.  444;  Robertson  665. 

«.  Western  F.  «&  M.  Ins,  Co.,  19  La.  *  People  e.   Township  Board,    11 

227,  86  Am.  Dec.  673;   Florance  v.  Mich.  222. 

Adams,   2  Rob.    (La.)  556,   38  Am.  »  Christianct,    J.    in    People   •. 

Dec.    226;    Butcher   v.    Krauth,    14  Township  Board,  stfpra. 

Bush    (Ky.)  713;  Mosley  v.  Buck,  3  «  Taussig  v.   Hart,   68  N.  T.  425; 

Munf.  (Va.)  232,  5  Am.  Dec.  508;  Mc-  Tewksbury  e.  Spruance,  75   III.    187; 

Kinley?).  Irvine,  13  Ala.  681;  Banks  Harrison  t>.  McHenry,  9  Ga.  164,  52 

«.    Judah,    8  Conn.   145;   Church  v.  Am.  Dec.  435;  Florance  ».  Adams,  3 

Sterling,  16  Conn.  388;  Sturdevant  v.  Rob.  (La.)  556,  38  Am.  Dec.  236;  Ely 

Pike,  llnd.  277;  Matthews «.  Light,  33  «.  Hanford,    65  111.    267;   Conkey  v. 

Me.  305;  Moore  v.  Moore,  5  N.Y.  258;  Bond,  36  N.  Y.  427;  Beal  v.  McKier- 

Shannon  c.  Marmaduke,  14  Tex.  217;  nan,  6  La.    (O.  S.)  407;    Keighler  t>. 

Segar*.  Edwards,  11  Leigh  (Va.)  213.  Savage    Mnfg.    Co.  12  Md.  383,   71 

Am.  Dec.  600. 

308 


Chap.  II.]  LIABILITY    OF   AGENT   TO    PRINCIPAL. 


§463. 


his  principal ;  the  latter  may  still  repudiate  it.  The  tendency  of 
Buch  transactions  is  bad,  and  a  good  intention  in  a  particular 
case  will  not  save  it,  unless  the  principal  sees  fit  to  affirm  it.* 

And  what  was  said  in  a  preceding  section  applies  here  also. 
The  agent  may  not  accomplish  by  indirect  and  covert  means 
what  he  could  not  do  directly  and  openly. 

§  463.  To  what  Agents  this  Rule  applies.— This  rule  is  of 
frequent  application,  not  only  to  agencies  which  are  strictly  pri- 
vate in  their  nature,  but  to  those  which  are  public  or  quasi-public 
as  well. 

Thus  an  administrator,'  executor,'  guardian,*  sheriff,*  deputy 


•  Taussig  e.  Hart,  58  N.  Y.  425; 
Harrison  v.  McHenry,  9  Ga.  164,  53 
Am.  Dec.  435;  People  v.  Townsliip 
Board,  11  Micli.  222. 

"  Tiie  general  rule  stands  upon  our 
great  moral  obligation  to  refrain  from 
placing  ourselves  in  relations  ■which 
ordinarily  excite  a  conflict  between 
self-interest    and   integrity.      It    re- 
strains all  agents,  public  and  private; 
but  the  value  of  the   prohibition  is 
most  felt,  and  its  application  is  most 
frequent,  in  the  private   relations  in 
which  the  vendor  and  purchaser  may 
Btand  toward  each  other.     The  disa- 
bility to  purchase  is  a  consequence  of 
that  relation  between  them  which  im- 
poses on  one  a  duty  to  protect  the 
interest  of  the  other,  from  the  faith- 
ful discharge  of  which  duty  his  own 
personal  interests  may  withdraw  him. 
In  this  conflict  of    interest  the  law 
wisely  interposes.     It  acts  not  on  the 
possibility  that,  in  some  cases,    the 
eense  of  that  duty  may  prevail  over 
the    motives    of  self-interest,    but  it 
provides    against  the  probability  in 
many  cases,    and   the  danger  in  all 
cases,  that  the  dictates  of  self-interest 
will  exercise  a  predominant  influence, 
and  supersede  that  of  duty.    It  there- 
fore prohibits  a  party  from  purchas- 
ing on  his  own  account  that   which 
his  duty  or  trust  requires  him  to  sell 
on  account  of  another;  and  from  pur- 


chasing on  account  of  another,  that 
which  he  sells  on  his  own  account. 
In  effect  he  is  not  allowed  to  unite 
the  two  opposite  characters  of  buyer 
and  seller,  because  his  interests,  when 
he  is  the  seller  or  buyer  on  his  own 
account,  are  directly  conflicting  with 
those  of  the  person  on  whose  account 
he  buys  or  sells."  Mr.  Justice 
Wayne,  in  Michoud  v.  Girod,  4  How. 
(U.  S.)  503. 

2Dwight  V.  Blackmar,  2  Mich.  330, 
57  Am.  Dec.  130;  Pearson  v.  More- 
land,  7  Smedes  &  M.  (Miss.)  609,  45 
Am.  Dec.  319;  Scott  v.  Freeland,  7 
Smedes  &  M.  (Miss.)  409,  45  Am. 
Dec.  310;  Planters'  Bank  v.  Neely,  7 
How.  (Miss.)  80,  40  Am.  Dec.  51;  Mc- 
Gowan  v.  McGowan,  48  Miss.  553; 
Hoffman  v.  Harrington,  28  Mich.  106; 
Obert  V.  Hammel,  8  Har.  (N.  J.  L.) 
74;  Coat  v.  Coat,  63  111.  73;  Kruse  v. 
Steffens,  47  111.  112;  Smith  v.  Drake, 
23  N.  J.  Eq.  302. 

8  Rogers  v.  Rogers,  1  Hopk.  (N.  Y.) 
524;  Schenck  v.  Dart,  22  N.  Y.  420; 
Winters  Geroe,  5  N.  J.  Ch.  319; 
Dunlap  V.  Mitchell,  10  Ohio,  117; 
Worthy  v.  Johnson,  8  Ga.  236;  53 
Am.  Dec.  399;  Scott  v.  Gorton,  14 
La.  115,  33  Am.  Dec.  578. 

*  Ward  V.  Smith,  3  Sandf,  (N.  Y.) 
Ch.  592. 

»  Harrison  v.  McHenry,  9  Ga.  164, 
53  Am.  Dec.  435;  Carr  «.  Houser,  46 


309 


§  464.  THE    LAW    OF    AGENOT.  [Book    lY.i 

eheriflE,'  tmstee,' assignee,*  or  commissioner  in  bankruptcy,*  judge 
of  probate,'  county  treasurer,*  commissioner  to  sell  land,'  etc., 
will  not  be  permitted,  either  directly  or  indirectly,  to  purchase 
of  himself  the  rights  or  property  which  he  is  authorized  in  that 
capacity  to  sell.*  A  public  or  private  agent  *  authorized  to  let 
a  contract  will  not  be  permitted  to  let  it  to  himself.  A  railroad 
agent  authorized  to  furnish  an  excursion  train  to  third  persons, 
will  not  be  permitted  to  furnish  one  ostensibly  to  a  third  person 
but  ifi  reality  for  his  own  benefit.'" 

These  rules  also  apply  to  the  directors  and  officers  of  corpora- 
tionis.  The  former  arc  regarded  in  equity  as  trustees,  and  the 
ministerial  officers  occupy  the  relation  of  agents." 

And  tht  principle  is  applied  not  only  to  the  agent  himself,  but 
to  8ubag3Et8,  clerks  and  assistants  appointed  by  him ;  '*  and  it 
extends  also  to  his  partner  in  business.^*  Whatever  disabilities 
the  agent  labors  under  attach  equally  to  those  whom  he  employf 
under  him. 

§  464.  Further  of  this  Rule— Indirect  attempts— Batiflcatiou. 
It  seems  scarcely  necessary  to  repeat  here,  what  has  already  been 
emphasized,  that  what  the  agent  cannot  do  directly,  he  will  not  be 
permitted  to  do  indirectly,  as  by  having  the  property  acquired 
ostensibly  by  another,  but  in  reality  for  his  own  benefit." 

Ga.  477;  Fluryt>.  Grimes,  52  Ga.  843;  "  Pegram  c.  Charlotte,  &c.  R  R 

Mayor  of  Macon  e.  Hufl,  60  Ga.  228.  Co.,  84  N.  C.  696,  37  Am.  Rep.  639. 

» Perkins  e.  Thompson,  3  N.  H.  144.  "  Cook  ■».  Berlin  Woolen  Mills  Co., 

"Robertson  e.   Western  F.   &  M.  43  Wis.  433;  Cumberland  Coal  Co.  e. 

Ins.  Co.,  19  La.   227,   86  Am.   Dec.  Hoffman  Steam  Coal  Co.,  30  Barb. 

673;  Greene.   Winter,  1  Johns,  (N.  (N.  Y.)  159;  Hodges  ®.  New  England 

Y.)   Ch.   26;  Davoue  v.   Fanning,  2  Screw  Co.,  1  R.  I.  821;    Jackson  e. 

Johns.  (N.  Y.)  Cb.  257.  Ludeling,  21  Wall  (U.   S.)  610;  Wil- 

•  Ex  parte  Lsicey,  6  Yes.  3t.  626.  hurt).  Lynde,  49   Cal.    290;    City  of 
*Expa/rte  Bennett,  10  Ves.  Jr.  884.  San  Diego  v.  San  Diego,  &c.    R.  R. 

•  Walton  V.   Torrey,  Har.    (Mich.)      Co.,  44  Cal.  106;  Commissioners,  &c. 
Ch.  259.  V.  Reynolds,  44  Ind.  509;  Greenfield 

•Clute    «.    Barron,    2    Mich.    192;  Savings  Bank  u.  Simons,    133  Mass. 

Pierce  v.  Boughman,  14  Pick.  (Mass.)  415. 

356.  '2 Gardner  v.  Ogden,  22  N.  Y.  327, 

T  Ingerson  «.  Starkweather,  Walk.  78  Am.  Dec.  192. 

(jVIich.)  Ch.  346.  is  New  York  Cent.  Ins.  Co.  v.  Na 

•People    9.    Township    Board,    11  tional  Protection  Ins.  Co.  14  N.  Y.  85. 

Mich.  222.  '<Eldridge  v.  Walker,  60   111.  230; 

•  Flint,  «fec.  R  R.   Co.  e.   Dewey,  or  by  a  third   person   for  the  joint 
14  Mich.  477.  benefit  of  himself  and  such  third  per- 

810 


Chap.  II.]  LIABILITY   OF   AGENT  TO    PRINCIPAL.  §  466. 

But  the  law  does  not  in  the  case  of  private  agencies,  regard 
such  transactions  as  so  far  absolutely  void  as  to  be  incapable  of 
ratification  by  the  principal.  If  he  is  satisfied  with  it,  after  full 
knowledge,  no  one  else  can  complain  ;  and  here,  as  in  other  cases, 
ratification  may  be  presumed  if  the  principal  does  not  repudiate 
it  within  a  reasonable  time  after  the  facts  come  to  his  knowledge.* 
And  the  same  principle  has  been  extended  to  trustees,  adminis- 
trators, executors  and  guardians.* 

§  465.  This  Rule  cannot  be  defeated  by  TJsage.  The  law  will 
not  permit  these  important  safeguards  to  be  easily  defeated. 
Hence  it  has  been  held  that  the  rule  that  an  agent  who  under- 
takes to  act  for  his  principal  cannot,  without  the  latter's  consent, 
in  the  same  matter  act  for  himself,  cannot  be  avoided  upon  the 
authority  of  any  local  or  temporary  usage.' 

§  466.  Agent  may  purchase  with  Principal's  Consent.  It  is 
not  to  be  inferred,  however,  that  there  is  any  inherent  incapacity 
in  an  agent  to  purchase  from  his  principal  or  to  sell  to  him. 
Where  the  facts  are  fully  disclosed,  and  the  agent  acts  in  good 
faith,  taking  no  advantage  of  his  situation,  the  principal 
may,  if  he  sees  fit,  deal  with  the  agent  as  with  any  other 
person.* 

But,  as  is  said  in  a  recent  case,'  "  while  a  transaction  of  the 
character  disclosed  is  not  necessarily  voidable  at  the  election  of 
the  principal,  a  court  of  equity,  upon  grounds  of  public  policy, 
will  nevertheless  subject  it  to  the  severest  scrutiny.  Its  purpose 
will  be  to  see  that  the  agent,  by  reason  of  the  confidence  reposed 
in  him  by  the  principal,  secures  to  himself  no  advantage  from 

son,  Hughes  «.  Waflhington,  72  111.  Rep.    (Moak)    177;    reversing    same 

84;    mere    fact    that     purchaser    is  case,  L.  R.,  5  C.  P.  646,  and  L.  R.,  7 

brother-in-law  of  the  agent  will  not  C.  P.  84,  1  Eng.  Rep.  .835. 

of  itself  invalidate  the  sale.  Walker  <  Rochester  v.   Levering,  104  Ind. 

t.  Carrington,  74  111.  446,  662,  23  Cent.  L.  Jour.   130;  Fisher's 

'Marsh  «.  Whitmore,  21  Wall.  (U.  Appeal,  34  Penn.  St.    29;  Uhlich  v. 

S.)  178;  Eastern  Bank  v.  Taylor,  41  Muhlke,  61  111.  499, 

Ala.  72;  Bassett  t).  Brown,  105  Mass.  "Rochester    v.     Levering,     supra, 

551.  citing:  McCormick®.  Malln.  SBIackf, 

» Worthy  «.  Johnson,  8  Ga.  236,  52  (lud.)  509,  522;  Cook  v.  Burlin,  &c. 

Am.  Dec.  399.  Co.,  43  Wis.    433;    Porter  v.    Wood- 

» Butcher  r.  Krauth,  14  Bush  (Ky.)  ruff,   36  N.    .L    Eq.    174;    Youug  «. 

713;  see  a  very  exhaustive  discussion  Hughes,  32  N,  J.  Eq.  372;  Faruum  v. 

of  this  question  in  Robinson  «.  Mol-  Brooks,  9  Pick.  (Mass.)  212;  Moore 

lett,  L.  R.,  7  H.  of  L,  802,  14  Eng.  v.  Mandlebaum,  8  Mich.  433. 

311 


§  467.  THE   LAW   OF   AGENOT.  [Book  lY. 

the  contract.  When  the  transaction  is  seasonably  challenged,  a 
presumption  of  its  invalidity  arises,  and  the  agent  then  assumes 
the  burden  of  making  it  affirmatively  appear  that  he  dealt  fairly, 
and  in  the  strictest  of  faith  imparted  to  his  principal  all  the  infor- 
mation concerning  the  property  possessed  by  him.  The  confiden- 
tial relation  and  the  transaction  having  been  shown,  the  onus  is 
upon  the  agent  to  show  that  the  bargain  was  fair  and  equitable  ; 
that  he  gave  all  the  advice  within  his  knowledge  pertaining  to 
the  subject  of  the  sale  and  the  value  of  the  property  ;  and  that 
there  was  no  suppression  or  concealment  which  might  have  in- 
fluenced the  conduct  of  the  principal." 

§  467.  Agent  employed  to  settle  Claim,  may  not  buy  and 
enforce  it  against  his  Principal.  The  principles  now  being  con- 
sidered find  further  illustration  in  the  rule  that  an  agent  who  is 
employed  to  settle  or  compromise  a  claim  against  his  principal, 
will  not  be  permitted  to  avail  himself  of  the  benefit  of  a  favora- 
ble settlement  by  purchasing  the  claim  himself  at  a  discount 
and  enforcing  it  against  his  principal  for  the  full  amount' 

Said  Lord  Cottenham  :  "  Why  is  the  agent  precluded  from 
taking  the  benefit  of  purchasing  a  debt  which  his  principal  is 
bound  to  discharge  1  Because  it  is  his  duty,  on  behalf  of  his 
employer,  to  settle  the  debt  on  the  best  terms  he  can  obtain  ;  and 
if  he  is  employed  for  that  purpose,  and  is  enabled  to  procure  a 
settlement  of  the  debt  for  anything  less  than  the  whole  amount, 
it  would  be  a  violation  of  his  duty  to  his  employer,  or  at  least 
hold  out  a  temptation  to  violate  that  duty,  if  he  might  take  an 
assignment  of  the  debt  and  so  make  himself  a  creditor  of  his 
employer  to  the  full  amount  of  the  debt  he  was  employed  to 
settle."  • 

Thus  where  two  partners  who  were  financially  embarrassed 
employed  an  agent  to  assist  them  in  settling  with  their  creditors 
and  the  agent  while  so  employed,  purchased  an  outstanding  claim 
against  the  firm,  at  a  large  discount,  but  did  not  disclose  the  fact 
of  the  discount  to  his  employers,  who  gave  him  their  note  for 
the  full  amount  of  the  claim,  it  was  held  that  the  benefit  of  the 
discount  inured  to  the  principals  and  that  there  was  a  failure  of 
consideration  of  the  notes  to  that  extent.  * 

» Davis  e.  Smith,  43  Vt,  269;  Case  'Noyea  r.  Landon,  59  Vt   569,  10 

c.  Carroll,  35  N.  Y.  385.  Atl.  Rep.  342. 

« In  Reed  v.  Norris,  2  Myl.  «fc  C.  361. 

312 


Ohap.  II.]  LIABILITY   OF    AGENT   TO    PEINOIPAL.  §468. 

§  468.  Agent  may  not  acquire  Rights  against  his  Principal 
based  on  his  own  Neglect  or  Default.  It  is  the  duty  of  the  agent 
to  protect  the  interests  of  his  principal  confided  to  his  care.  He 
will  not  therefore,  be  permitted  to  build  up  in  himself  rights  and 
interests  against  his  principal  based  upon  his  own  neglect  or 
default  in  the  performance  of  his  duty. 

Thus  an  agent  whose  duty  it  is  to  pay  the  taxes  upon  his  prin- 
cipal's lands,  cannot  by  neglecting  to  pay  such  taxes,  acquire  a 
valid  title  to  the  lands  upon  a  sale  of  them  for  the  non-payment 
thereof,  and  if  such  purchase  be  made,  the  agent  will  be  deemed 
to  hold  it  in  trust  for  his  principal.*  This  rule  applies  although 
the  duty  of  paying  the  taxes  is  not  directly  imposed.  It  is 
enough  that  such  a  course  puts  the  interests  of  the  agent,  in  the 
course  of  his  agency,  in  conflict  with  those  of  the  principal, — a 
result  which  it  is  his  duty  to  avoid.  Thus  an  agent  authorized  to 
care  for,  or  to  manage,  or  to  sell  his  principal's  real  estate,  will 
not  be  permitted  to  acquire  adverse  interests  by  purchasing  the 
same  at  a  tax  sale.* 

The  mere  fact  that  the  principal  has  not  furnished  the  agent 
with  money  with  which  to  pay  the  taxes,  makes  no  difference,' 
nor  will  the  neglect  of  the  principal  to  reimburse  the  agent  for 
money  expended  in  such  a  purchase,  authorize  him  to  acquire  and 
hold  the  title,  unless  he  has  first  made  to  the  principal  a  full  and 
fair  statement  of  the  amount  required.*  So  an  agent  authorized 
to  manage  and  sell  lands  will  not  be  permitted  to  acquire  a  title 
to  them  by  bidding  them  in  at  a  mortgage  sale.'  Nor  will  an 
agent  whose  duty  it  is  to  buy  up  and  remove  an  outstanding 
claim  against  his  principal's  title,  be  permitted  to  buy  it  in  his 
own  name  and  enforce  it  against  his  principal.*  Nor  can  an 
agent  employed  to  settle  a  debt  against  his  principal,  be  permitted 

'Curtst).  Cisna,  7  Biss.  (U.   8.  C.  "Bowman*.  Officer,  53  Iowa,  640; 

C.)  260;  Franks  v.  Morris,  9  W.  Va.  Page  ??.  Webb,  —  Ky.,  —  7  8.  W.  Rep.' 

664;  Barton  ».  Moss,  32  111.  50;   Old-  308. 

hams  «.  Jones,  5  B.  Mon.  (Ky.)  458;  « Bowman  v.  Officer,  supra;   Mc- 

Krutz  V.  Fisher,   8  Kans.    90;    Mat-  Mahon    v.    McGraw,    26    Wis.    614; 

thews  u  Light,  32  Me.  305;  Huzzard  Krulz«.  Fisher,  8  Kans.  90. 

«.  Trego,  36  Penn.  St.  9;  Bartholemew  »  Adams  v.  Sayre,  70  Ala.  318, 

e.  Leech,  7  Watts  (Penn.)  472.  •  Smith   v.    Brotherline,   62  Penn. 

« Ellsworth  V.    Cordrey,   63  Iowa,  St.  461;  Case  v.   Carroll,   35  N.  Y. 

675;  Collins  «.  Rainey,  43  Ark,  531;  885. 
Woodman  v.  Davis,  32  Kans.  344. 

313 


ft  439^  THE   LAW   OF   AOENOT.  [Book    IV. 

to  take  an  assignment  of  it  to  himself  and  enforce  it  against  his 
principal.' 

So  if  an  agent  discovers  a  defect  in  his  principal's  title  he 
cannot  use  it  to  acquire  a  title  for  himself ;  and  if  he  does  so,  he 
will  be  held  to  be  a  trustee  holding  for  his  principal.' 

If  an  agent  wishes  to  acquire  such  a  title,  he  must  first  make  an 
unambiguous  relinquishment  of  his  agency,"  and  if  any  doubt 
exists  as  to  whether  he  had  done  so,  it  will  be  solved  in  the  prin- 
cipal's favor.* 

S  469.  Profits  made  in  the  Coiirse  of  the  Agency  belong  to  the 
Principal.  The  well  settled  and  salutary  principle  that  a  person 
who  undertakes  to  act  for  another  shall  not,  in  the  same  matter, 
act  for  himself,  results  also  in  the  other  rule,  that  all  profits  made 
and  advantage  gained  by  the  agent  in  the  execution  of  the  agency 
belong  to  the  principal.  And  it  matters  not  whether  such  profit 
or  advantage  be  the  result  of  the  performance  or  of  the  violation 
of  the  duty  of  the  agent.  If  his  duty  be  strictly  performed,  the 
resulting  profit  accrues  to  the  principal  as  the  legitimate  conse- 
quence of  the  relation  ;  if  profit  accrues  from  his  violation  of 
duty,  that  likewise  belongs  to  the  principal,  not  only  because  the 
principal  has  to  assume  the  responsibility  of  the  transaction,  but 
also  because  the  agent  cannot  be  permitted  to  derive  advantage 
from  his  own  default. 

It  is  only  by  rigid  adherence  to  this  rule  that  all  temptation 
can  be  removed  from  one  acting  in  a  fiduciary  capacity,  to  abuse 
his  trust  or  seek  his  own  advantage  in  the  position  which  it 
affords  him. 

It  matters  not  how  fair  the  conduct  of  the  agent  may  have 
been  in  the  particular  case,  nor  that  the  principal  would  have 
been  no  better  off  if  the  agent  had  strictly  pursued  his  power,  nor 
that  the  principal  was  not  in  fact  injured  by  the  intervention  of 
the  ao-ent  for  his  own  benefit.  The  result  is  still  the  same.  If  the 
agent  dealing  legitimately  with  the  subject-matter  of  his  agency, 
acquires  a  profit ;  or  if  by  departing  from  his  instructions,  he 
obtains  a  better  result  than  would  have  been  obtained  by  follow- 
ing them,  the  principal  may  claim  the  advantage  thus  obtained, 

I  Reed  V.  Norris,  2  My.  &  C.  374.  »  Continental  L.  Ins.  Co.  v.  Perry, 

«Ringo  «.  Binns,  10  Pet.   (U.    S.)      65  Iowa,  709. 
209  *  Fountain  Coal  Co.  e.  Phelps,  95 

Ind.  271. 
314 


Chap.  II.]  LIABILITY   OF   AGENT  TO   PKINCIPAL.  §  4G9. 

even  though  the  agent  may  have  contributed  liis  own  funds  or 
responsibility  in  producing  the  result.  All  profits  and  every 
advantage  beyond  lawful  compensation,  made  by  the  agent  in  the 
business,  or  by  dealing  or  speculating  with  the  effects  of  his 
principal,  though  in  violation  of  his  duty  as  agent,  and  though 
the  loss,  if  one  had  occurred,  would  have  fallen  on  the  agent,  are 
for  the  benefit  of  the  principal.* 

In  such  a  case  the  principal  may  at  his  option  compel  the 
agent  to  account  for  or  convey  to  him  the  profits  thus  acquired.* 
And  even  though  the  transaction  was  outside  of  the  actual  pur- 
view of  the  agency,  yet  if  the  agent  at  the  time  professed  to  act 
for  the  principal  and  in  his  behalf,  the  benefit  of  the  transaction 
will  inure  to  the  principal.' 

This  principle  is  of  universal  application  in  the  case  of  all 
agencies  involving  fiduciary  relations.  Thus  it  is  well  settled 
that  where  a  trustee  speculates  with  the  trust  funds  he  may  be 
held  liable  for  profits  or  interest,  at  the  option  of  the  cestui  que 
trust — profits  if  the  investment  has  been  a  successful  one,  and 
interest  if  it  has  been  disastrous.  In  no  event  will  the  trustee 
be  allowed  to  make  a  profit  out  of  the  trust  fund.  The  law 
holds  out  no  inducement  to  trustees  so  to  misapply  the  estate.  The 
trustee  may  lose,  but  he  cannot  make  by  so  doing.  It  is  equally 
clear  that  when  the  trust  funds  can  be  traced  into  the  purchase  of 
any  particular  property  the  latter  will  be  held  to  belong  to  the 
estate,  if  the  cestui  que  trust  so  elect.* 

>  Dutton  V.  Willner,  53  N.  Y.  812;  Y.   378;  Moinett  e.  Days,    1   Baxter 

Dodd  e.  Wakemau,  26  N.  J.  Eq.  484;  (56  Tenn.)  431. 

Lafferty  v.  Jelley,  22  Ind.  471 ;  Ack-  9  Gardner  v.  Ogden,   22  N.  Y.  327, 

burg  V.  McCool,  36   Ind.  473;   Moore  78  Am.  Dec.  192;  Holman».  Holman, 

V.    Moore,    5    N.  Y.  250;  Gardner  v.  66  Barb.  (N.  Y.)222;  Buttons.  Will- 

Ogden,  22  N.  Y.    327,  78  Am.  Dec.  uer,    52  TST.  Y.  312;  Greenfield   Sav- 

192;  York    Buildings   Co.  v.  McKen-  iugsBanku  Simons,  133  Mass.  415. 
zie,    3    Paton,    378;  Keech  t.  Sand-  3  Watson «;.  Union  Iron  &  Stsel  Oo., 

ford,  3  Eq.  Gas.   Abr.  741;  Ringo  c.  15  IlLApp.  509. 

Binns,  10  Pet.  (U.  S.)  269;  Barthole-  <  Norris'  Appeal,  71  Penn.  St.  106; 

mew  V.  Leech,  7  Watts   (Penn.)  472;  Hall's  Appeal,  4  Wright,   (40  Penn.) 

Davoue  t).  Fanning,  2  Johns.  (N.  Y.)  409;  Miller's    Appeal,    6   Casey,    (30 

Ch.  252;  Hall  ©.  W eyes,   2    Bro.  Ch.  Penn.)    478;    Robinett's    Appeal,   12 

483;  Crowe   v.    Ballard,    Idem,    117;  Casey,  (36   Penn.)  191;  Oliver  v.   Pi- 

Coursin's  Appeal,  79  Penn.  St.    220;  att,  3  How.  (U.  S.)  333;  Callagban  c, 

Wilson  V.  Wilson,   4  Abb.    (N.   Y.)  Hall,  1  Serg.  &  R.  (Peun.)  241;  Wi- 

App.  Dec.  621;  Leaker.  Sutherland,  ley's  Appeal,    8    Watts   &  S.  (Penn.) 

25  Ark,  219;  Price  e.   Keyes,  62  N.  244;  Docker  v.  Somes,  2  Myl.   &  K 

315 


§  470.  THE    LAW   OF   AGENOT.  [Book    lY. 

§  470.  Same  Subject— Illustrations.  In  accordance  with  this 
rule,  wliere  one  who  while  pretending  to  act  as  the  agent  of  the 
purchaser  of  certain  real  estate,  was  in  reality  acting  as  the  agent 
of  the  seller,  and  received  as  his  compensation  from  the  seller  a 
note  given  by  the  purchaser  as  part  of  the  purchase  price,  it 
was  held  that  he  should  be  restrained  from  enforcing  payment  of 
the  note,  and  that  it  should  be  delivered  up  and  cancelled.' 

And  if  the  agent,  while  secretly  negotiating  a  sale  of  his  prin- 
cipal's land  or  other  property  to  third  persons  for  a  large  sum,  by 
concealment  of  the  facts  as  to  the  value  and  demand  of  the  prop- 
erty, obtains  from  his  principal  a  conveyance  of  it  to  himself  for 
less  than  it  is  worth,  and  then  conveys  it  to  third  persons,  he 
vdll  be  held  to  account  to  his  principal  for  the  excess  so  re- 
ceived.* 

So  if  an  agent  who  is  authorized  to  sell  land  or  other  property 
at  a  given  price,  succeeds  in  realizing  more  than  that  price  for  it, 
the  excess  belongs  to  his  principal ;  *  or  if,  being  authorized  to 
purchase  at  a  given  price,  he  makes  the  purchase  for  less  ;  *  or  if 
being  employed  to  settle  a  claim  at  a  given  sum,  he  obtains  a 
reduction,'  the  amount  saved  belongs  to  the  principal. 

And  one  who  employs  another  to  pursue  and  capture  a  horse 
thief  and  pays  the  person  so  employed  for  his  services  and  ex- 
penses, will  be  entitled  to  receive  a  reward  offered  for  the  appre- 
hension of  the  thief,  which  the  agent  earns  by  such  apprehen- 
sion.* 

So  where  the  treasurer  of  a  savings  bank  who  was  directed  to  sell 
certain  rights  for  not  less  than  a  certain  price  and  buy  shares  in 
a  national  bank  with  the  proceeds,  bought  the  rights  for  himself 
and  others  at  the  minimam  price,  although  they  could  easily  have 

655;  Attorney- General  «.   Alford,  4  Thompson    v.   Hallet,   26    Me.    141; 

DeG.  M.  &  G.  843;  Hartu.  Ten  Eyck,  Moseley  t.  Buck,  3  Munf.  (Va.)  232, 

2  Johns.  (N.  Y.)  Ch.   62.  Lupton  e.  5  Am.  Dec.  608;  Bell  v.   BeU,   3  W. 

White,  ISVes.  Jr.  432;  Chedworth  v.  Va.  183. 

Edwards,  8  Ves.  Jr.  46.  »  Merryman  e.    David,  31  HI.   404; 

»  Moinett «.  Days,  1  Baxt.  (Tenn.)  Kerfoot  v.  Hyman,  52  111.  512. 

431,  «  Bunker  v.  Miles,    30  Me.    431,  50 

«  Stoner  «,  Weiser,   24  Iowa.  434;  Am.  Dec.  632;  Kanada  v.  North,  14 

Bee  also  Bain  v.   Brown,  56  N.  Y.  Mo.  615. 

285;    Savage  v.    Savage,  12  Oregon,  »  J.rt<«,  §  466,  and  cases  cited. 

459;    Northern    Pacific  R.    R.   Co.  •  Montgomery  County  t».  Robinson, 

«.     Kindred,      14     Fed.     Rep.    77;  85111.  174. 

316 


Chap.  II.]  LIABILITY   OF    AGENT   TO   PRINCIPAL.  §  473. 

been  sold  for  more,  it  was  held  that  he  must  account  to  the  bank 
for  the  difference  between  the  minimum  price  and  what  they 
might  have  been  sold  for.* 

§  471.  When  Principal  entitled  to  Agent's  Earnings.  Where 
an  agent  contracts  his  entire  time  to  his  principal  for  a  fixed  salary, 
the  principal  is  entitled  to  receive  money  earned  by  the  agent  in 
performing  services  for  third  persons.* 

§  472.  Same  Subject— Rxile  does  not  extend  to  mere  Gratuities 
received  by  the  Agent.  The  rule  that  all  profits  and  advantage 
made  by  the  agent  in  the  course  of  his  agency  belong  to  the  prin- 
cipal, does  not  apply  to  mere  gratuities  or  gifts  from  third  parties 
tc  the  agent,  which  neither  he  nor  the  principal  had  any  right  to 
expect,  although  they  were  made  in  consideration  of  benefits  in- 
cidentally derived  from  the  performance  of  the  agent. 

Thie  principle  was  applied  where  the  agent  of  an  insurance 
company  had  been  presented  with  a  sura  of  money  by  another 
company  in  recognition  of  the  benefit  the  latter  company  had 
derived  from  an  adjustment  of  a  loss  by  the  agent  for  his  own 
company.* 

II. 

TO   OBEY    IN8TRU0TIO3TS. 

§  473.  Agentte  Duty  to  obey  Instructions.  It  is  also  a  funda- 
mentd  duty  of  the  agent  to  obey  all  of  the  reasonable  and  law- 
ful instructions  givea  him  by  his  principal.  That  the  agent  shall, 
for  the-  time  being  put  his  own  will  under  the  direction  of  an- 
other, is  one  of  the  primary  elements  in  the  relation.  Ii  is  the 
idet:.  the  desire,  the  purpose,  perhaps  the  mere  whim  or  caprice  of 
the  prin»',iprj,  and  not  of  the  agent,  that  is  to  be  executed ;  and 
i'o  is  ordinarily  to  be  executed  in  the  manner,  although  perhaps 
capricious,  which  the  principal  directs. 

§  474.  Results  of  Disobedience  —  Agent  liable  for  Losses 
caused  by  it.  It  is  obvious  that  the  results  of  disobedience  may 
be  dependent  largely  upon  the  nature  of  it.     As  has  been  seen, 

•  Greenfield  Savings  Bank  v.  Sim-  R.  R  Co.,  86  Mo,  27,  56  Am.  Rep. 

ons,  133  Mass.  415.  408. 

«  Stansbury  v.  United  States,  1  Ct.  s  ^tna  Ins.  Co.  v.  Church,  21  Ohio 

of  CI.    123;  Leach  v.  Hannibal  &c.  St.  492. 

317 


§  474.  THE   LAW   OF    AGENCY.  [Book  IV. 

the  principal  has,  in  general,  an  undoubted  legal  right  to  have  the 
agencj  executed  in  his  own  way,  if  it  be  not  an  unlawful  way, 
and  it  is  the  duty  of  the  agent  to  pursue  that  mode  even  though 
he  may  think  or  know  that  a  very  much  better  way  is  open  to 
him." 

If  the  agent  refuses  or  neglects  to  follow  the  instructions  given, 
one,  or  either,  or  both  of  two  remedies  may  be  open  to  the  prin- 
cipal, as  the  peculiar  circumstances  of  the  case  may  determine. 
Thus  if  the  disobedience  be  such  as  affects  merely  the  manner  of 
the  execution  but  does  not  affect  the  result^  and  causes  the  prin- 
cipal no  loss  or  injury,  no  substantial  damages  could  be  recovered 
from  the  agent,  though  he  might  be  liable  to  nomiual  damages 
as  in  the  case  of  any  other  breach  of  duty,  unless  the  departure 
from  the  line  marked  out  were  so  insignificant  as  to  fall  within 
the  domain  of  the  maxim  de  minimis  non  curat  lex.  The  prin- 
cipal might,  however,  very  properly  refuse  to  longer  continue  the 
relation  with  an  agent  who  habitually  disregarded  his  instructions 
even  though  no  actual  loss  or  injury  had  ensued.* 

But  if  the  disobedience  be  not  such  as  affects  the  manner  only, 
but  results  in  actual  loss  or  injury  to  the  principal,  the  latter  may, 
subject  to  the  exceptions  to  be  hereafter  named,  recover  from 
the  agent  such  substantial  damages  as  he  can  show  he  has  sus- 
tained by  reason  of  such  disobedience.*  He  may  also  remove 
the  agent  from  his  trust*  The  general  rules  applicable  to  the 
recovery  of  damages  in  other  cases  obtain  here.  Thus  the  dara- 
a"-es  must  not  be  too  remote  nor  of  a  purely  speculative  or  prob- 
lematical character.  They  must,  in  other  words,  be  the  natural, 
proximate  and  legitimate  result  of  the  act  complained  of."  Aa 
is  said  by  a  learned  judge :  "  It  is  the  first  duty  of  an  agent 

« iSec  an^,  Chapter  VII.,  Book  L  103;  Harvey  t>.  Turner,  4  Rawle 
•  See  idem.  (Penn.)  233;  Brown  v.  Arrott,  6  Watts 
»  Whitney  b.  Merchants  Union  Ex-  <&  S.  (Penn.)  402;  Blot  e.  Boiceau,  3 
press  Co.,  104  Mass.  152;  6  Am.  Rep.  N.  Y.  78;  51  Am.  Dec.  345;  see  also 
207;  Scott  t).  Rogers,  31  N.  Y.  C7G;  pust,  Chapters  on  Attorneys,  Auction- 
Yv^ilts  t).  Morrell,  66  Barb.  (N.  Y.)  eers,  Broliers  and  Factors;  and  see 
Cll;  Adams  v.  Robinson,  65  Ala.  58  cases  cited  in  notes  to  following  sec- 
Dodge  c.  Tileston,  12  Pick.    (Mass.)  tion. 

833;  Dickson  v.  Screven,  23  S.  C.  213;  *  See  anU,  Chapter  on  Termination 

Magnin  v.  Dinsmore,  63  N.    Y.    35;  of  the  Relation. 

Frothingham  v.  Everton,   12  N.    H.  •  8  Sutherland  on  Damages,  6. 
239;   Amory  v.  Hamilton,    17  Mass. 

318 


Chap.  II.]  LIABILITY   OF    AGENT   TO    PRINCIPAL.  §  475. 

whose  authority  is  limited,  to  adhere  faithfully  to  his  instructions, 
in  all  cases  to  which  they  can  be  properly  applied,  If  he  exceeds, 
or  violates,  or  neglects  them,  he  is  responsible  for  all  losses 
which  are  the  natural  consequence  of  his  act."  '  That  ho  acted 
in  good  faith  or  with  the  intention  of  benefiting  the  principal 
does  not  relieve  him  from  tlie  responsibih'ty.* 

§  475.  Same  Subject— Illustrations.  Thus  if  an  agent  who 
was  instructed  to  collect  a  claim  by  the  employment  of  certain 
methods,  elects  to  pursue  other  methods  and  the  claim  is  lost 
thereby,  he  will  be  liable  for  the  loss,  and  it  will  be  no  defense 
that  he  used  reasonable  diligence  in  the  prosecution  of  the  claim 
according  to  the  method  of  his  own  selection,^ 

So  if,  being  instructed  to  ship  goods  at  a  certain  time,  or  by  a 
designated  carrier,  the  agent  ships  at  another  time  or  by  a  dif- 
ferent carrier,  and  loss  thereby  results,  the  agent  will  be  liable. 
By  pursuing  his  own  notions  in  opposition  to  the  express  instruc- 
tions of  his  principal,  the  agent  will  be  held  to  have  assumed 
the  risks  incident  thereto  and  will  be  treated  as  an  insurer  of  the 
goods.* 

And  the  same  result  follows  where  an  agent  being  instructed 
to  insure  his  principal's  goods,  fails  to  do  so.  The  risk  is  his 
own." 

So  if  being  expressly  instructed  to  sell  only  to  persons  of  un- 
doubted responsibility,  the  agent  sells  to  persons  notoriously  in- 
solvent, the  principal  may  recover  of  the  agent  for  the  loss  there- 
by occasioned.  And  in  such  a  case  it  will  be  no  defense  to  the 
agent  that  he  acted  in  pursuance  of  an  alleged  custom  among 
similar  agents  to  rely  upon  the  purchaser's  statements  as  to  his 
own  responsibility,  without  making  further  inquiry.*  But  where 
the  principal  with  knowledge  of  the  facts  has  retained  the  notes 
taken  by  the  agent  for  an  unreasonable  period,  as  for  instance  for 
two  years,  without  complaint,  he  will  not  then  be  permitted  to 

>  Colt,  J.,  in  Whitney  v.  Merch-  Dec.  416;  Ackley  e.  Kellogg,  8  Cow. 

ants  Union  Exp.  Co.  supra.  (N.  Y.)  223. 

«  Rechtsherd  v.   Bank,  47  Mo.  181 ;  »  Sawyer  v.  Mayhew,  51  Me.  898. 

Dickson  v.  Screven,  23  S.  C.  212.  •  Robinson      Machine     Works     v. 

»  Butts  B.  Phelps,  79  Mo.  802.  Vorse,  52  Iowa,   207;  Osborne    v.  Ri- 

<  Johnson    v.     New     York    Cent.  der,  62   Wis.    285;  Clark  p.    Roberts, 

Transp.   Co.   33  N.   Y.  610,  88  Am.  26  Mich.  506;  See  also  ;w.^<  §  519. 

319 


§476; 


THE   LAW   OF   AGENCY.  [Book  lY. 


allege  that  the  agent  violated  his  instructions  by  selling  to  irre- 
sponsible parties.* 

So  where  an  agent  authorized  to  collect  at  a  distant  place,  was 
instructed  to  remit  the  proceeds  to  his  principal  by  express,  but 
made  the  remittance  by  check  of  a  third  person  who  failed  be- 
fore payment,  it  was  held  that  the  loss  must  fall  upon  the  agent ;  • 
and  the  same  result  was  reached  where  such  an  agent,  being  in- 
structed to  send  the  money  in  fifty  or  one  hundred  dollar  bills 
sent  it  in  smaller  bills,  which  were  lost ;  •  and  where,  being  in- 
structed to  remit  by  draft,  the  agent  sent  the  money  in  a  letter 
which  was  lost.* 

An  agent  instructed  to  insure  property,  who  neglects  without 
sufficient  reason  to  do  so  or  to  give  his  principal  timely  inform- 
ation of  his  inability  to  effect  the  insurance,  will  be  liable  if  a 
loss  occurs,  for  the  full  insurable  value  of  the  property  less  the 
amount  of  the  premiums,  unless  the  amount  of  insurance  was 
limited  to  a  less  sum."  And  where  the  agent  of  an  insurance 
company  was  instructed  by  his  principal  to  cancel  a  certain  policy 
of  insurance,  but,  without  sufficient  reason,  delayed  for  a  number 
of  days  to  do  so,  in  which  time  the  property  was  destroyed  by 
fire  and  the  company  was  compelled  to  pay  the  loss,  it  was  held 
that  the  company  could  recover  from  the  agent  the  amount  so 

paid.' 

An  agent  instructed  to  sell  for  cash,  who  accepts  a  check  pay- 
able the  next,'  or  ten  days'  after  the  sale,  will  be  liable  for  the 
loss,  if  the  drawer  fails  before  the  check  can  be  paid.  And  a 
local  custom  to  treat  such  checks  as  cash  will  not  avail  him.» 

8  476.  Form  of  Action— When  Agent  liable  in  Trover.  The 
form  of  action  in  which  the  liability  of  the  agent  is  determined 

I  Piano    Mnfg  Co.  e.   Buxton,   86  Cow.    (N.    Y.)    645;    De    Tastett  e. 

Minn.  203.  30  N.  W.  Rep.  668.  Crousillat,  2  Wash.  (U.  S.  C.  C.)  133; 

8  Walker     v.     Walker,    5    Heisk.  Thome  v.  Deas,  4  Johns.  (N.  Y.)  84; 

(Tenn  )  425.  Shoenfeld  v.  Fleischer,  73  111.  404. 

» Wilson  V.  Wilson,   26  Penn.  St.  •  Phoenix  Ins.  Co.    v.  Frissell.    — 

393  Mass.  — ,  8  North  E.  Rep.  348.     See 

♦  Foster  v.  Preston,  8  Cow.  (N.  Y.)  also  to  same  effect,  Franklin  Ins.  Co. 
198-    Kerr  e.    Cotton,    23  Tex    411;  e.  Sears,  21  Fed.  Rep.  230. 

Bee  Buell  f>.  Chapin,  99  Mass.  594,  97  t  Hall  v.  Storrs,  7  Wis.  253. 

Am.  Dec.  58.  '  Harlan  v.  Ely,  68  Cal.  523. 

•  Park  V.   Hamond,   4  Camp.  344;  »  Hall  «.  Storra,  supra. 
Perkins  c.   Washington  Ins.   Co.,   4 

320 


Ohap.  II.]  LIABILITT   OF   AGENT   TO    PEINCIPAL.  §  476. 

is  usually  assumpsit  or  a  special  action  on  the  case,  but  there  are 
cases  in  which  trover  is  the  proper  remedy,  as  where  the  conduct 
of  the  agent  amounts  to  a  conversion. 

Conversion  is  defined  to  be  an  unauthorized  assumption  and 
exercise  of  the  right  of  ownership  over  goods  belonging  to  an- 
other, to  the  exclusion  of  the  owner's  rights.'  A  constructive 
conversion  takes  place  when  a  person  does  such  acts  in  reference 
to  the  goods  of  another  as  to  amount  in  law  to  an  appropria- 
tion of  the  property  to  himself.  Every  unauthorized  taking 
of  personal  property,  and  all  intermeddling  with  it  beyond  the 
extent  of  the  authority  conferred,  in  case  a  limited  author- 
ity has  been  given,  with  intent  so  to  apply  and  dispose  of  it  as 
to  alter  its  condition  or  to  interfere  with  the  owner's  dominion,  is 
a  conversion.* 

In  many  cases  it  becomes  difficult  to  determine  whether  the 
misconduct  of  the  agent  consists  in  a  mere  breach  of  instructions 
or  amounts  in  law  to  a  conversion  ;  and  the  distinctions  made  in 
many  cases  seem  to  be  exceedingly  technical.  A  distinction  is, 
nevertheless,  to  be  made.  Thus  it  has  been  held  that  if  property 
be  delivered  to  an  agent  with  instructions  to  sell  it  at  a  certain 
price,  and  he  sells  it  for  less  than  that  price,  he  is  not  liable  in 
trover  as  for  conversion.  In  such  a  case  the  agent  had  a  right  to 
sell  and  deliver,  and  in  that  respect  did  no  more  than  he  was 
authorized  to  do.  He  disobeyed  instructions  as  to  price  only,  and 
was  liable  for  misconduct  but  not  for  conversion  of  the  prop- 
erty.* So  where  an  agent  was  authorized  to  deliver  goods  on 
receiving  sufficient  security,  but  delivered  them  on  inadequate 
security,  it  was  held  that  trover  would  not  lie.* 

On  the  other  hand,  where  a  factor  in  Buffalo  was  directed  to 
sell  wheat  at  a  certain  specified  price  on  a  particular  day,  or  if  not 
so  sold  to  ship  to  New  York,  and  did  not  sell  or  ship  it  on  that 
day,  but  sold  it  the  next  day  at  the  price  named,  it  was  held  to 
be  a  conversion."  So  where  the  plaintiff  delivered  to  the  defend- 
ant a  promissory  note  to  get  it  discounted,  but  with  instructions 

•  Adams  ».  Robinson,  65  Ala.  586;  T.)  74;   Dufresne  v.   Hutchinson,   8 

Myers  v.  Gilbert,  18  Ala.  467.  Taunt.  117;  Palmer  t>.  Jarmain,  2  M. 

«Bouv.  Law  Diet.  "Conversion;"  &  W.  283. 

laverty  v.  Snethen,  68  N.  Y.  523,  23  ^Cairnes  v.  Bleecker,  12  Johns.  (N. 

Am.  Rep.  184.  T.)  300. 

•Barjeant  v.  Blunt,  16  Johns.  (N.  »  Scott  v.  Rogers,  81  N.  Y.  676. 

21  321 


§  477.  THE   LAW   OF   AGENCY.  [Book  iV. 

not  to  let  it  go  out  of  his  hands  without  receiving  the  money ; 
and  the  defendant,  without  wrongful  intent,  delivered  it  to  F, 
who  promised  to  get  and  return  the  money  on  it,  but  who,  hav- 
ing obtained  the  money,  appropriated  it  to  his  own  use,  it  was 
held  that  the  defendant  was  liable  for  the  conversion  of  the  note. 
The  court  said  that  the  defendant  had  a  right  to  sell  the  note, 
and  if  he  had  sold  it  for  less  than  the  price  stipulated,  he  would 
not  have  been  liable  in  trover,  but  he  had  no  right  to  deliver  it 
to  F,  to  take  away,  any  more  than  he  had  to  pay  his  own  debt 
with  it.» 

§  477.  Same  Subject — The  Rule  stated— Intent  immaterial. 
The  result  of  the  authorities  may  be  said  to  be,  that  if  the  agent 
parts  with  the  property  in  any  way  or  for  any  purpose  not  auth- 
orized, he  is  liable  for  a  conversion ;  but  if  he  parts  with  it  in 
accordance  with  his  authority,  but  sells  it  at  a  less  price,  or  mis- 
applies the  proceeds,  or  takes  inadequate  security,  he  is  not  liable 
for  a  conversion  of  the  property,  but  only  in  an  action  for  dam- 
ages on  account  of  the  misconduct.* 

In  such  cases  the  question  of  good  faith  is  not  involved.  A 
wrongful  intent  is  not  an  essential  element  of  the  conversion. 
It  is  enough  if  the  owner  has  been  deprived  of  his  property  by 
the  act  of  another  assuming  an  unauthorized  dominion  and  con- 
trol over  it.' 

§  478.  How  when  Agency  is  gratuitous.  The  rules  hereto- 
fore laid  down  are  those  which  apply  to  cases  where  the  service 
is  to  be  performed  for  a  reward.     Where,  however,  the  service 

'  Laverty  v.  Snethen,   supra.     "If  or  that  the  agent  has  without  neces- 

one  man  who  is  intrusted  with  the  sity  sold  or  otherwise  disposed  of  the 

goods  of  another,   put  them  into  the  property  contrary  to  his  instructions, 

hands  of  a  third  person  contrary  to  Where  an  agent  wrongfully  refuses 

orders,  it  is  a  conversion."    Syeds  v.  to  surrender  the  goods  of  his  princi- 

Ha}%   4   T.    R.    260.      Same    point,  pal,  or  wholly  departs  from  his  au- 

Spencer  t>.  Blackman,  9  Wend,   (N.  thority    in    disposing    of    them,    he 

Y.)  167.  makes  the  property  his  own  and  may 

2 Laverty  v.  Snethen,  68  N.  Y.  523,  be  treated  as  a  tort  feasor."    McMor- 

23  Am.    Rep.    184.     "  Trover,"  says  ris  v.  Simpson,  21  Wend.  (N.  Y.)  610; 

Bronson,   J.,  "  may  be  maintained  Galbreath  v.  Epperson,  —  Tenn.  — , 

when  the  agent  has  wrongfully  con-  1  S.  W.  Rep.  157. 

verted  the  property  of  his  principal  'Laverty  r.  Snethen,  68  N.  Y.  523; 

to  his  own  use,  and  the  fact  of  the  83  Am.  Rep.  184;  Scott  v.  Rogers,  31 

conversion   may  be    made    out    by  N.  Y.  676. 
showing  either  a  demand  and  refusal, 

322 


Chap.  II.]  LIABILITY   OF    AGENT   TO    PRINCIPAL. 


§478. 


is  to  be  gratuitous,  certain  other  considerations  become  impor* 
tant. 

If  in  such  a  case  the  agent  refuses  to  enter  upon  and  perform 
the  service  at  all ;  if  his  default  consists  in  the  mere  not  doing 
of  a  thing  which  he  had  promised  to  perform,  and  it  be  not  a  case 
where  the  law  imposes  upon  him  the  duty  to  perform  it,  the  fact 
that  the  performance  was  to  be  gratuitous,  that  the  promise  to 
perform  was  entirely  without  consideration,  will  furnish  a  com- 
plete defense  to  a  claim  for  damages  on  account  of  such  default.' 


>  Balfe  «.  West,  13  0.  B.  466,  23 
Eng.  L.  &  Eq.  506 ;  Elsee  v.  Gatward, 
6  T.  R.  (Eng.)  143;  Thome  v.  Deas,  4 
Johns.  (N.  T.)  84;  Spenceru.  Towles, 
18  Mich.  9. 

See  Nixon  v.  Bogin,  26  S.  0.  611,  3 
S.  E.  Rep.  302. 

Thome  «.  Deas,  supra,  was  an  ac- 
tion on  the  case  for  a  non-feasance  in 
not  effecting  insurance  as  the  defend- 
ant had  gratuitously  undertaken  to 
do.  Chief  Justice  Kent,  in  deliver- 
ing the  opinion  of  the  court,  said: 
"The  chief  objection  raised  to  the 
right  of  recovery  in  this  case  is  the 
want  of  consideration  for  the  promise. 
The  offer  on  the  part  of  the  defend- 
ant to  cause  insurance  to  be  effected 
was  perfectly  voluntary.  Will,  then, 
an  action  lie,  when  one  party  intrusts 
the  performance  of  a  business  to 
another  who  undertakes  to  do  it  grat- 
uitously and  wholly  omits  to  do  it? 
If  the  party  who  makes  this  engage- 
ment, enters  upon  the  execution  of 
the  busiuess.and  does  it  amiss  through 
the  want  of  due  care,  by  which  dam- 
age ensues  to  the  other  party,  an  ac- 
tion will  lie  for  this  misfeasance.  But 
the  defendant  never  entered  upon  the 
execution  of  his  undertaking,  and  the 
action  is  brought  for  the  non-feasance. 
Sir  William  Jones,  in  his  '  Essay  on 
the  Law  of  Bailments,'  considers 
this  species  of  undertaking  to  be  as 
extensively  binding  in  the  English 
law  as  the  contract  of  mandatum  in 


the  Roman  law ;  and  that  an  action 
will  lie  for  damage  occasioned  by 
the  non-performance  of  a  promise  to 
become  a  mandatary,  though  the 
promise  be  purely  gratuitous.  This 
treatise  stands  high  with  the  profes- 
sion as  a  learned  and  classical  per- 
formance, and  I  regret  that  on  this 
point  I  find  so  much  reason  to  ques- 
tion its  accuracy.  I  have  carefully 
examined  all  the  authorities  to  which 
he  refers.  He  has  not  produced  a 
single  adjudged  case;  but  only  some 
dicta  (and  those  equivocal)  from  the 
Tear  Books,  in  support  of  his  opin- 
ion; and  were  it  not  for  the  weight 
which  the  authority  of  so  respectable 
a  name  imposes,  I  should  have  sup- 
posed the  question  too  well  settled  to 
admit  of  an  argument.  A  short  re- 
view of  the  leading  cases  will  show 
that,  by  the  common  law,  a  man- 
datary, or  one  who  undertakes  to  do 
an  act  for  another  without  reward,  is 
not  answerable  for  omitting  to  do  the 
act,  and  is  only  responsible  when  he 
attempts  to  do  it,  and  does  it  amiss. 
In  other  words  he  is  responsible  for  a 
misfeasance,  but  not  for  a  non-feasance 
even  though  special  damages  are 
averred.  Those  who  are  conversant 
with  the  doctrine  of  mandatum  in 
the  civil  law,  and  have  perceived  the 
equity  which  supports  it  and  the  good 
faith  which  it  enforces  may,  perhaps, 
feel  a  portion  of  regret  that  Sir  Wil- 
liam Jones  was  not  successful  in  his 


323 


8  479.  THE    LAW    OF    AGENCY.  [Book  lY. 

This  is  upon  the  familiar  ground  that  the  non-performance  of  a 
gratuitous  executory  contract  constitutes  no  cause  of  action. 

But  where,  on  the  other  hand,  the  agent  has  undertaken  or 
entered  upon  the  performance  of  the  service,  although  it  be 
gratuitous,  it  then  becomes  his  duty  to  conform  to  the  instruc- 
tions given.  If  he  were  not  willing  to  do  so,  he  should  have 
declined  to  serve;  but  having  assumed  the  performance  of  the 
service,  the  trust  and  confidence  reposed  furnish  a  sufficient  con- 
sideration for  the  undertaking  to  obey  instructions,  and  a  failure 
to  do  so,  will  subject  him  to  liability  for  the  loss  or  damage 
occasioned  thereby.* 

§  479.  Exceptions  to  this  Bule.  This  rule  which  requires 
adherence  to  the  instructions  of  the  principal  is  subject  to  cer- 
tain exceptions,  growing  out  of  the  nature  of  the  duty  to  be 
performed,  or  the  necessities  or  circumstances  of  the  case. 
Thus— 

S  480.  Agent  not  bound  to  perform  illegal  or  immoral  Act, 
The  law  will  not  lend  its  sanction  to  the  commission  of  an  illegal 
or  immoral  act.  An  agent  therefore  cannot  be  held  responsible 
for  the  disobedience  of  instructions  which  required  the  perform- 
ance of  an  act  illegal  or  immoral  in  itself,  or  whose  natural  and 
legitimate  result  would  be  of  that  nature." 

attempt  to  ingraft  this  doctrine,  in  all  Am.  Dec.  470;  "Williams  t>.  Higgins, 

its  extent,  into  the  English  law.     I  80  Md.  404;    Short  v.    Skipwitb,    1 

have  no  doubt  of  the  perfect  justice  Brock.  (U.  S.  C.  C.)  104;  Walker  ». 

of  the  Roman  rule,    on  the  ground  Smith,  1  Wash.  (U.  8.    C.    C.)  152; 

that  good  faith  ought  to  be  observed,  Spencer  «.  Towles,  18  Mich.  9. 

because  the  employer  placing  reliance  Thus  if  a  person  undertakes,  even 

upon  that  good  faith  in  the  mandatary  voluntarily  and  gratuitously,  to  invest 

was   thereby  prevented  from  doing  money  for  another,  and  disregards 

the  act  himself  or  employing  another  positive  instructions  given  as  to  the 

to  do  it.      *     *     *     But  there  are  specific  character  of  the  security  to 

many    rights    of    moral    obligation  be  taken,  he  is  liable  if  the  invest- 

which  civil  laws  do  not  enforce,  and  ment  should  fail  on  that  account, 

are  therefore  left  to  the  conscience  of  Williams  v.  Higgins,    30   Md.  404. 

the  individual  as  rights  of  imperfect  But  where  agency  is  gratuitous,  an 

obligation ;  and  the  promise  before  agent  is  not  liable  for  not  collecting 

us  seems  to  have  been  so  left  by  the  without  proof  of  negligence.    Nixon 

common  law  which  we  cannot  alter  v.  Bogin,  26  S.  C.  611,  2  S.  E.   Rep. 

and  which  we    are    bound    to  pro-  303. 

nounce."    See  also  Benden  «.  Mann-  s  Brown  t).  Howard,  14  Johns  (N. 

ing,  2  N,  H.  289.  Y.)  119;  Davis  v.  Barger,  57  Ind.  54; 

j'passano  v.  Acosta,   4  La    26,  23  Elmore  r.  Brooks,  6  Heisk.  (Tenn.)  45. 

324 


Chap.  IL]  LIABILITY    OF   AGENT   TO   PRINCIPAL.  §  483. 

§  481.  Departure  from  Instructions  may  be  justified  by  sud- 
den Emergency.  Another  exception  to  this  rule  is  based  upon 
the  necessities  of  the  case,  as  where,  without  the  agent's  fault  or 
neglect,  some  sudden  emergency  or  supervening  necessity  arises, 
or  some  unexpected  event  happens,  which  will  not  admit  of  delay 
for  communication  or  consultation  with  the  principal,  and  a  lit- 
eral adherence  to  instructions  becomes  impossible  or  would 
defeat  the  very  object  sought  to  be  attained.  In  such  a  case  if 
the  agent,  exercising  prudence  and  sound  discretion,  in  good  faith 
adopts  the  course  which  seems  best  under  the  circumstances  as 
then  existing,  he  will  be  justified  although  subsequent  events 
may  demonstrate  that  some  other  course  would  have  been  better.' 

§  482.  Same  Subject— Limitations.  But  while  extraordinary 
circumstances  may  thus  justify  the  assumption  of  extraordinary 
powers,  it  does  not  necessarily  follow  that  an  agent  may  assume 
any  or  all  extraordinary  powers,  and  bind  his  principal  by  acts 
done  under  such  assumed  powers.  The  same  general  princi- 
ples apply  here  that  govern  the  implication  of  authority  from 
circumstances  in  other  cases.  The  powers  assumed  must  not 
exceed  the  exigencies  of  the  occasion.  They  must  be  limited 
both  in  nature  and  extent  by  the  necessities  of  the  case,  and  must 
bear  as  close  relationship  as  possible  to  the  authority  actually 
conferred.' 

§  483.  Where  the  Authority  has  been  substantially  pursued, 
Agent  not  liable  for  immaterial  Departure.  As  has  been  already 
stated,  no  substantial  damages  can  be  recovered  from  the  agent 
for  a  purely  circumstantial  departure  from  instructions,  not  affect- 
ing the  result.'  Where  it  is  shown  that  the  instructions  have  not 
been  followed  and  that  a  loss  has  ensued,  the  burden  of  proving 
that  the  departure  from  the  course  prescribed  was  immaterial  and 
did  not  cause  the  loss,  is  upon  the  agent.*     The  very  fact  that 

'  Greenleaf   «.   Moody,     13    Allen  Drummond  e.  Wood,  2  Cai.    (N.  Y. 

(Mass.)  363;  Forrestier  v.  Bordman,  1  810;  Liotard  «.  Graves,  3  Cal.  (K  Y.) 

Story  (D.  S.  C.  C.)  43;  Judson  v.  Stur-  226;    Bartlett  c.   Sparkman,  96  Ma. 

ges,  5  Day  (Conn.)  556;  Milbank  «.  136,  6  Am.  St.  Rep.  35. 

Dennistoun.  21 N.  Y.  386;  Qoodwillie  'Foster  v.   Smith,  2  Cold.  (Tenn.) 

V.  McCarthy,   45  111.   186;  Catlin  v.  474,  88  Am.  Dec.  604. 

Bell,  4  Camp.  183;  Jervis  v.  Hoyt,  2  'See  ante,  §  413. 

Hun  (N.  Y.)637;  Foster©.  Smith,  2  <  Wilson  v.    Wilson,  26  Penn.  St. 

Cold.  (Tenn.)  474,  88  Am.  Dec.  604;  393;    Walker   v.    Walker,    5  Heisk. 

Dusarv.  Perit,  4  Binn  (Penn.)  361;  (Tenn.)  425. 

325 


I  484.  THK   LAW   OF    AGENCY.  [Book  IV. 

the  principal  gave  directions  is  evidence  that  he  regarded  them 
as  material,  and  if  the  agent,  except  in  the  case  of  sudden  emer- 
gency before  referred  to,  voluntarily  elects  to  disregard  them  and 
pursue  a  course  of  his  own  election,  he  must  be  prepared  to 
show  that  the  instructions  were  not  in  fact  material.  And  it  is 
evident  from  the  very  nature  of  the  case  that  such  proof  is  often 
difficult  to  make. 

Thus  in  a  case  above  referred  to,  if  the  agent  had  made  his 
remittance  in  large  bills  as  directed,  the  letter  containing  them 
might  have  been  lost  in  the  same  manner  that  the  more  bulky 
package  containing  the  larger  number  of  small  bills  was  lost ;  but 
it  was  obviously  impossible  to '  prove  that  as  a  matter  of  fact  it 
would  have  been  lost ;  and  the  court  properly  held  that  the  agent 
was  the  insurer  of  the  safety  of  the  method  which  he  adopted.' 
In  such  cases,  it  has  been  said,  that  every  doubtful  circumstance 
will  be  construed  against  the  agent."  In  short,  instructions  are 
followed  at  the  principal's  risk ;  they  are  violated  at  the  risk  of 
the  agent. 

§  484.  Where  Instructions  are  ambiguous,  and  Agent  acts  in 
good  Faith,  If  the  principal  desires  his  instructions  to  be  pur- 
sued, it  is  obviously  necessary  that  he  should  make  them  intelli- 
gible and  clear.  If  however  they  are  so  ambiguous  as  to  be  capa- 
ble of  two  interpretations,  and  the  agent  in  good  faith  and  with 
due  diligence  adopts  one  of  them,  he  cannot  be  held  liable  to  the 
principal  for  a  loss  that  may  result,  upon  the  latter's  claim  that 
he  meant  the  other.  * 

This  subject  has  been  discussed  in  a  preceding  section,  and  what 
is  there  said  is  applicable  here.  * 

§  485.  How  affected  by  Custom.  As  has  been  already  seen, 
it  is  not  only  within  the  agent's  power,  but  it  is  also  his  duty,  in 
the  absence  of  countervailing  circumstances,  to  conform  to  such 
valid  and  established  usages  and  customs  as  apply  to  the  subject- 

>  Wilson  fl.  Wilson,  supra.  Roy  «.   Beard,  8  How.  (U.  S.)  451,  1 

«  Adams  ».  Robinson,  65  Ala.  586;  Myers  Fed.  Dec.    §  458;   Loraine  t». 

Dodge  V.  Tileston,  12  Pick.   (Mass.)  Cartwrighl,   3  Wash,    (U.   S.  C.  C.) 

333^  151 ;  De  Tastett  v.  Crousillat,  2  Wash. 

3  Bessent  v.  Harris,  63  N.  C.  642;  (U.  S,  C.  C.)  132;  Pickett?).  Pearsons, 

National  Bank  ».  Merchants  Bank,  91  17  Vt.   470;  Minnesota  Linseed  Oil 

U.  S.  92;  Shelton  v.   Merchants  Dis-  Co.  v.  Montague,  65  Iowa,  67. 
patch  Transp.  Co.  59  N.   Y.  258;  Le         «  AnU,  §§  314.  815. 

326 


Cliap.  II.]  LIABILITT    OF    AGENT   TO    PRINCIPAL.  §  486. 

matter  or  the  performance  of  his  aojency.  One  who  makes  a 
contract  in  the  face  of  an  established  custom  relatinsr  to  the  mat- 
ter,  will,  in  the  absence  of  anything  to  the  contrary,  be  presumed 
to  have  made  it  subject  to  the  custom.  So  a  person  who  employs 
another  to  act  for  him  in  a  particular  place  or  market,  will  be 
presumed,  when  nothing  appears  to  indicate  a  different  intent,  as 
intending  that  the  business  to  be  done,  will  be  done  according  to 
the  usage  or  custom  of  that  place  or  market.^ 

Custom  cannot  however,  as  between  the  principal  and  his  agent, 
override  positive  instructions  to  the  contrary."  If,  in  such  a  case, 
the  agent  is  not  able,  or  does  not  wish,  to  conform  to  the  in- 
structions, he  should  refuse  to  accept,  or  should  renounce  the 
trust. 

So,  as  has  been  seen,  a  custom,  unless  shown  to  have  been 
known  and  assented  to,  will  not  justify  the  changing  of  the  essen- 
tial character  of  the  relation  between  the  principal  and  his  agent,' 
nor  can  it  operate  to  authorize  the  making  of  an  invalid  instead 
of  a  valid  contract,  or  to  bind  the  principal  to  take  one  thing 
when  he  has  ordered  another.* 

But,  as  has  already  been  stated,  where  no  contrary  instructions 
are  given,  it  is  the  duty  of  the  agent  to  conform  to  the  custom, 
and  failure  to  do  so  will  subject  him  to  liability  for  such  losses 
as  may  result  therefrom.* 

§  486.  Same  Subject— When  Presumption  conclusive.  How 
far  the  presumption,  that  the  parties  had  the  custom  in  contem- 
plation, is  conclusive,  is  a  question  not  always  easy  of  determina- 
tion.    Some  customs  are  so  well  established  and  so  universally 

"Bailey  v.  Bensley.  87  111.  556;  Storrs,  7  Wis.  253;  Bliss  «.  Arnold,  8 
Lyon  V.  Culbertson,  83  111.  33;  United  Vt.  252,  30  Am,  Dec.  467;  Hutchings 
Stales  L.  Ins.  Co.  t).  Advance  Co.,  80  «.  Ladd,  16  Mich.  493;  Leland  ®. 
Ill,  549;  Byrne  v.  Schwing,  6B.  Mon,  Douglass,  1  Wend.  (N.  Y.)490;  Clark 
(Ky.)  199;  De  Lazardi  fl.  Hewitt,  7  B.  «.  Van  Northwick,  1  Pick.  (Mass.) 
Mon.  (Ky.)  697;  White  v.  Fuller,  67  343;Catlin  v.  Smith,  24  Vt.  85 ;  Day  c. 
Barb.  (N.  Y.)  267;  Smythec.  Parsons,  Holmes.  103  Mass.  306;  Parsons  z). 
Kan.  — ,  14  Pac.  Rep.  444.  Martin,  11  Gray  (Mass.)  112;  Ledyard 

«  Wanless  v.  McCandless,  38  Iowa,  «.  Hibbard,  48  Mich.  421. 

20;    Robinson     Machine    Works    v.  "Robinson  v.  Mollett,   L.  R.  7  H. 

Vorse,    52    Iowa,    207;    Osborne    v.  L.  803,  14  Eng.  Rep   177. 

Rider,   62    Wis.    235;    Greenstine  v.  «  Perry  v.  Barnett,   15  Q.  B,  Div. 

Borchard,  50  Mich.  434,  45  Am.  Rep.  388. 

51 ;  Barksdale  v.  Brown,  1  Nott.  &  M.  »  Greely  v.  Bartlett,  1  Greenl.  (Me.) 

(S.  C.)  517,  9  Am.   Dec.  720;  Hall  v.  172,  10  Am.  Dec.  54. 

327 


§  437.  THE   LAW    OF   AGENOT.  [Book   lY. 

recognized  as  to  have  become  a  part  of  the  law  of  the  land  and 
a  party  will  not  be  heard  to  allege  his  ignorance  of  them.  Others 
however,  are  so  restricted  as  to  locality  or  trade  or  business,  that 
ignorance  of  them  is  a  valid  reason  why  a  party  may  not  be  held 
to  have  contracted  in  reference  to  them. 

Not  only  the  existence  of  such  a  custom,  but  whether  knowl- 
edge of  it  exists  in  any  particular  case,  are  questions  of  fact  for 
the  jury.  It  is  for  them  to  determine,  under  proper  instructions 
from  the  court,  whether  from  the  evidence  as  to  the  existence, 
duration  and  other  characteristics  of  the  custom,  and  as  to  the 
knowledge  thereof  by  the  parties,  there  is  shown  a  custom  of 
such  age  and  character  that  the  law  will  presume  that  the  parties 
knew  of,  and  contracted  in  reference  to,  it ;  or  whether  the  cus- 
tom is  so  local  and  particular  that  knowledge  in  the  party  to  be 
charged  must  be  affirmatively  shown  and  may  be  negatived.* 

§  487.  No  Presiimption  of  Disobedience.  The  law  does  not 
presume  that  the  agent  has  not  obeyed  his  instructions  or  that  he 
does  not  intend  to  obey  them.  It  matters  not  what  the  intent  or 
enpposition  of  the  principal  may  be,  the  law  will  presume  that 
the  agent  obeyed  the  instructions  that  were  given  and  as  they 
were  given,  and  if  the  contrary  is  alleged,  it  must  be  proved.* 

III. 

NOT  TO   BE   NEGLIGENT. 

§  488.  In  general.  Many  of  the  questions  that  might  fall 
under  this  head  would  also  properly  be  classed  under  the  preced- 
ing. That  is,  the  negligence  complained  of  may  be  the  result  of 
a  failure  to  observe  positive  instructions,  as  well  as  of  a  failure 

1  Walls  V.  Bailey,  49  N.  T.  464,  10  Reeves,  9  Pick.  (Mass.)  200;  Citizens 

Am.  Rep.  407;  "Williams  v.  Gilman,  3  Bank  v.  Graflain,  31  Md.  507;  1  Am. 

Greenl.  (Me.)  276;  Bradley  v.  Whee-  Rep.  66;  McMasters  v.  Pennsylvania 

ler,  44  N.  Y.  500:  Higgins  «.  Moore,  R.  R.  Co.,  69  Penn,  St.  374,  8  Am. 

84  N.  Y.  425;  Dawson   v.  Kittle,  4  Rep.  264;  Farns worth  v.  Cliase,  19  N. 

Hill  (N.  Y.)  107;  Caldwell  o.  Dawson,  H.  534,  51  Am.  Dec.  206;  Randall  t>. 

4 Mete.  (Ky.)  121 ;  Barnard «.  Kellogg,  Smith,  63  Me.  105,  18  Am.  Rep.  200. 

10  Wall.  (U.  S.)  383;  Martin  v.  May-  «  Bangs  v.  Hornick,   30  Fed.  Rep. 

nard,  16  N.  H,  166;  Dodge  v.  Favor,  97;  Bartlett  v.   Smith,   13  Fed.  Rep. 

15  Gray  (Mass.)  83;  Fisher  i>.  Sargent,  263;  Kirkpatrick  ».   Adams,  20  Fed. 

10   Gush.    (Mass.)    250;    Stevens   v.  Rep.  287. 

328 


Chap.  II.]  LIABILITY   OF   AGENT   TO    PEINOIPAL.  §  491. 

to  perform  the  general  duties,  which  pertain  to  the  undertaking, 
but  which  were  not  the  object  of  express  directions.  Ko  harm 
can  come,  however,  if  strict  lines  of  demarkation  be  not  always 
drawn. 

§  489.  Diflaculty  of  defining  Negligence.  No  general  defini- 
tion of  negligence  can  be  given  which  shall  be  at  once  so  expan- 
sive as  to  cover  all  of  the  questions  that  may  arise,  and  so  close- 
fitting  as  to  meet  the  infinite  variety  of  individual  cases.  None 
therefore  will  be  attempted.  Neither  is  it  believed  that  there  is 
any  advantage  to  be  derived  from  an  attempt  to  adhere  to  the 
former  arbitrary  divisions  into  slight^  ordinary  and  gross  negli- 
gence, sufficient  to  compensate  for  the  misleading  and  unsatisfac- 
tory results  that  are  often  experienced  where  these  distinctions 
are  made  the  conclusive  tests.' 

§  490.  The  general  Rule.  It  is  the  duty  of  every  agent  to 
bring  to  the  performance  of  his  undertaking,  and  to  exercise  in 
such  performance,  that  degree  of  skill,  care  and  diligence  which 
the  nature  of  the  undertaking  and  the  time,  place  and  circum- 
stances of  the  performance  justly  and  reasonably  demand.  A 
failure  to  do  this,  whereby  the  principal  suffers  loss  or  injury, 
•jonstitutes  negligence  for  which  the  agent  is  responsible.* 

§  491.  Consideration  of  thin  Bule.  It  is  obvious  that  the  de- 
gree of  skill,  care  and  diligence  required  in  any  given  case  is  not 
a  fixed  quantity,  but  depends  upon  time,  place  and  circumstances. 
That  degree  which  would  meet  the  requirements  of  the  case  of 
an  agent  sent  to  sell  a  horse  at  a  country  fair  might  be  entirely 
insufficient  in  the  case  of  a  broker  authorized  to  sell  valuable 
securities  upon  the  stock  exchange.  So  a  different  degree  might 
be  expected  in  the  case  of  one  casually  employed  in  a  single  in- 
stance and  professing  no  peculiar  skill,  from  that  which  might 
reasonably  be  demanded  in  the  case  of  one  employed  in  the  line 
of  his  business  or  profession  in  which  he  held  himself  out  as 
possessing  peculiar  skill.  And  again,  even  in  the  same  general 
line,  it  might  be  reasonable  to  expect  a  higher  degree  in  the  case 

»  See  Gill  «.  Middleton,  105  Mass.  t.  Boston  Gaslight  Co.,  8  Gray  (Mass.) 

477,  7  Am.  Rep.  548.  12B,   69  Am.   Dec.   233;    Gaither  v. 

sLeighton  v.  Sargent,  27  N.  H.  460,  Myrick.  9  Md.  118.  66  Am.  Dec.  816; 

69  Am.  Dec.  388;  Gill  v.  Middleton,  Whitney  v.  Martine,  88  N.  Y.  535; 

105  Mass.  477,  7  Am.  Rep.  548;  Holly  Heinemann  v.  Heard,  50  N.  Y.  35. 

329 


I  492.  THE   LAW    OF   AGENCY.  [Book  IV. 

of  one  who  pursued  his  calling  in  a  great  city  than  in  the  case  of 
hira  whose  field  of  action  was  in  a  country  village.* 

But  the  difference  is  a  difference  of  degree  only  and  not  in 
kind.  The  test  still  remains:  Given  an  employment  of  this 
nature,  to  be  performed  at  this  time  and  place  and  under  these 
circumstances,  what  degree  of  skill,  care  and  diligence  may  justly 
and  reasonably  be  demanded  ? 

§  492.  Same  Subject.  These  considerations  lead  to  still  oth- 
ers. Is  it  the  case  of  one  employed  in  a  learned  profession  ?  If 
so,  what  rules  of  procedure  in  such  cases  have  been  established 
by  authority  or  custom  ?  What  standards  of  performance  have 
been  agreed  upon?  What  means  of  accomplishing  the  given 
purpose  have  been  provided  and  how  have  they  been  used  ? 

Or  is  it  the  case  of  one  employed  in  some  particular  depart- 
ment of  business?  If  so,  have  any  local  rules  or  customs  been 
established  in  such  cases?  Are  there  particular  places  or  peculiar 
times  at  which  such  duties  are  to  be  performed  ?  Has  common 
experience  taught  that  any  special  method  should  be  pursued  or 
any  peculiar  precaution  observed  in  such  transactions  ? 

And  80,  in  every  case.  The  how  depends  in  large  degree  upon 
the  what,  the  where  and  the  v^hen. 

%  493.  Same  Subject— Agent  bound  to  exercise  usual  Precau- 
tions. These  considerations  lead  still  further  to  the  restatement 
of  one  aspect  of  the  general  rule  above  given.  The  agent  is 
bound  to  exercise  and  observe  all  the  precautions  ordinarily  pur- 
sued  in  relation  to  the  particular  business  in  which  he  is  em- 
ployed, and  according  to  the  usages  of  the  place  and  the 
circumstances  of  the  times  within  which  the  business  is  to  be 
transacted.* 

8  494.  Same  Subject— Not  bound  to  exercise  highest  Care. 
Except  in  those  cases  in  which  he  voluntarily  and  without  suffi- 
cient reason,  violates  express  instructions,  the  agent  is  not  ordi- 
narily an  insurer.  Unless  he  expressly  agrees  to  do  so,  he  is  not 
bound  to  exercise  the  highest  possible  degree  of  care.  Unless  he 
professes  to  be  an  expert,  he  is  not  ordinarily  bound  to  bring  his 
performance  up  to  the  standard  of  an  expert.  If  he  be,  for  ex- 
ample,  a  general   practitioner   in   the   country,  he  cannot   be 

'  Small  V.  Howard,  128  Mass.  131,  »  Wright  v.   Central  R.  R.  Co.  16 

35  Am.  Rep.  363.  Ga.  88. 

330 


Chap.  II.]  LIABILITY   OF   AGENT   TO    PRINCIPAL.  §  495. 

required  to  have  and  exercise  that  high  degree  of  skill  to  which 
the  specialist  of  the  metropolis  attains.* 

§  495.  Same  Subject— Good  Faith  —  Reasonable  Diligence. 
But  the  agent  is,  in  all  cases,  bound  to  act  in  good  faith,  and  to 
exercise  reasonable  diligence,  and  such  care  and  skill  as  are  ordi- 
narily possessed  by  persons  of  common  capacity  engaged  in 
the  same  business.*  As  is  said  by  Judge  Cooley :  "  Whoever 
bargains  to  render  services  for  another  undertakes  for  good  faith 
and  integrity,  but  he  does  not  agree  that  he  will  commit  no  errors. 
For  negligence,  bad  faith  or  dishonesty,  he  would  be  liable  to  his 
employer ;  but  if  he  is  guilty  of  neither  of  these,  the  master  or 
employer  must  submit  to  such  incidental  losses  as  may  occur  in 
the  course  of  the  employment,  because  these  are  incident  to  all 
avocations,  and  no  one,  by  any  implication  of  law,  ever  under- 
takes to  protect  another  against  them."  * 

Further  than  this,  general  statements  of  the  principle  cannot 
usefully  go.  The  principle  is  not  an  uncertain  one,  though  the 
question  of  what  is  reasonable  in  any  given  case  is  not  one  which 
can  ordinarily  be  measured  by  any  pre-established  inflexible  stand- 
ard. There  are  cases,  it  is  true,  where  a  limit  must  be  fixed,  and 
one  80  fixed,  though  purely  arbitrary,  is  to  be  observed.  But  there 
is  a  growing  tendency  on  the  part  of  courts,  and  it  is  in  further- 
ance of  justice,  to  measure  each  case  by  the  more  flexible  standard 
of  its  own  facts  and  circumstances.  "  Care  and  diligence  should 
vary  according  to  the   exigencies  which  require   vigilance  and 

>  Small  V.  Howard,  128  Mass.  131,  Conn.  209,  23  Am.  Dec.  333;  How- 

35  Am.    Rep.   363;  Leigh  ton  v.  Sar-  ard  v.  Grover,  28  Me.  97;    48  Am. 

gent,  27  N.  H.  460,  59  Am.  Dec.  388.  Dec.  478;  Myles  v.   Myles,  6  Bush. 

9  Leighton  v.    Sargent,  27  N.    H.  (Ky.)  237;  Kempker  v.   Koblyer,  29 

460,   59  Am.  Dec.  388;   Whitney  v.  Iowa,  274;  Stevens  v.  Walker.  55  111. 

Marline,  88  N.  Y.  535;  Heiaemannt).  151;   Chandler  o.    Hogle,    58  111.46; 

Heard,  50  N.  Y.  35;  Gaither  ®.  My-  Deshler  ».  Beers,  33  111.  308;  Phillips 

rick,  9  Md.  118,  66  Am.  Dec.    316;  v.  Moir,  69  111.  155;  Babcock  v.  Orbi- 

Fletcher  v.  Boston  &  Maine  R.  R.  1  son,  25  Ind.  75;  Leverick  v.  Meigs,  1 

Allen  (Mass.)  9,   79   Am.    Dec.    695;  Cow.  (N.  Y.)  645;  Van  Alen  v.  Van- 

Varnura  v.  Martin,   15  Pick.  (Mass.)  derpool,  6  Johns.  (N.  Y.)  61),  5  Am. 

440;  Stimpson  v.  Sprague,  6  Greenl.  Dec.  192;  Howatt  v.   Davis,  5  Munf. 

(Me.)  470;  Crocker  v.  Hutchinson,  1  (Va.)  34,  7  Am.  Dec.   681;   Greely  v. 

Vt.  73;  Holmes  v.  Peck.  1  R.  I.  243;  Bartlett,  1  Greenl.  (Me.)  173,  10  Am. 

Wilson  V.  Russ,  20  Me.  421;  Grannis  Dec.  54;  Folsom  v.  Mussey,  8  Greenl. 

«.  Branden,  5  Day  (Conn.)  260,  5  Am.  (Me.)  400,  23  Am.  Dec.  623. 
Dec.  143;    Landon  v.  Humphrey,   9  » In  Page  «.  Wells,  31  Mich.  415. 

331 


§  496.  THE   LAW    OF   AGENCY.  [Book  lY. 

attention,  conforming  in  amount  and  degree  to  the  particular  cir- 
cumstances under  wliich  they  are  to  be  exerted."  * 

§  496.  Same  Subject— When  Agent  warrants  Possession  of 
Skill.  Wherever  the  undertaking  of  the  agent  is  one  which  in 
its  nature  requires  the  possession  and  exercise  of  professional 
gkill,  the  law  will  presume,  in  the  absence  of  anything  to  the 
contrary,  a  warranty  on  tlie  part  of  the  agent  that  he  possesses 
and  will  exercise  a  reasonable  and  competent  degree  of  the  skill 
required.* 

And  the  same  rule  applies  to  any  other  case  requiring  special 
or  peculiar  skill.  If  the  agent  undertakes,  for  a  reward,  the  per- 
formance of  such  a  duty,  without  possessing  a  reasonable  and 
competent  degree  of  skill,  of  which  fact  the  principal  is  ignorant, 
he  will  be  liable  to  the  principal  for  the  loss  or  injury  resulting 
therefrom.'  If,  however,  the  principal  had  notice  or  knowledge 
of  the  deficiency  at  the  time  of  the  employment,  the  agent  will 
not  be  so  liable.*  No  warranty  of  skill  will  be  implied  when  the 
principal  knows  that  no  such  skill  is  possessed.  If  he  sees  fit 
to  employ  an  unskilled  person,  he  must  be  content  with  unskillful 
performance.  And  the  same  thing  is  true  where  the  agent  is 
employed  out  of  the  line  of  his  employment.  If  the  principal 
sees  fit  to  employ  an  auctioneer  to  conduct  his  case  in  court,  he 
cannot  complain  of  his  attorney's  want  of  skill,  unless  the  latter 
expressly  warranted  that  he  possessed  it. 

§  497.  How  when  Agency  is  gratuitous.  Where  the  duty  to 
be  performed  by  the  agent  is  purely  voluntary  in  its  nature,  a 
somewhat  different  rule  applies.  Friends  and  neighbors  are 
every  day  rendering  mutual  services  for  the  accommodation  and 

•  Merrick.  J.  in  Holly  v.  Boston  Grover,  28  Me.  97,  48  Am.  Dec.  478, 
Gaslight  Co.  8  Gray  (Mass.)  131,  69  and  see  cases  cited  in  preceding  see- 
Am.  Dec.  233.  tion. 

»  Wilson  V.  Brett,  11  M.  &  W.  113;  'Kirtland  e.   Montgomery,  1  Swan 

Stanton  v.  Bell,  2  Hawks  (N.  C.)  145,  (Tenn.)  453;  McDonald  v.  Simpson,  4 

11  Am.  Dec.  744;  Leighton  v.  Sargent,  Ark.  523;  Wilson  v.   Brett,  11  M.  & 

27  N.  H.  460,  59  Am.  Dec.  388;  Var-  W.  113;  Moneypenny  v.  Hartland,  1 

num  V.  Martin,  15  Pick.  (Mass.)  440;  Car.  &  P.  353,  s.  c.  2  Id.  378;  McFar- 

Stimpson  v.  Sprague,  6  Greenl.  (Me.)  land  v.  McClees,  —  Penn.   St.  — ,  5 

470;  Crooker  v.  Hutchinson,    1  Vt.  Atl.  Rep.  50,  and  see  generally  cases 

73;    Holmes*.    Peck,  1  R.    L    243;  cited  in  preceding  section. 

Grannis  ».    Branden,  5  Day  (Conn.)  *  Story  on  Bailments,  §  435;  Felt  ci 

260,    5   Am.    Dec.    143;  Howard  v.  School  District,  24  Vt.  297. 

332 


Chap.  II.]  LIABILITY   OP   AGENT   TO    PRINOIPAU  §  497. 

convenience  of  each  other,  with  no  thought  of  exacting  or  receiv- 
ing a  reward.  These  services,  too,  are  often  of  such  a  nature  that 
professional  or  skilled  agents  might  well  have  been  employed  if 
they  were  accessible  or  within  the  means  of  the  parties  ;  as  where, 
in  rural  districts,  neighbors  render  for  each  other  simple  medical 
aid  or  give  each  other  assistance,  counsel  or  advice,  in  the  trans- 
action of  their  affairs. 

In  these  cases  it  is  evident  that  it  is  not  contemplated  that  the 
party  so  acting  possesses  any  peculiar  skill  or  that  he  undertakes 
to  exercise  any.  The  reasonable  degree  of  skill  which  such  an 
agent  could  be  held  accountable  for,  is  obviously  very  small,  and 
the  negligence  which  would  make  him  liable  must  be  of  that 
degree  which  is  often,  for  want  of  a  better  term,  characterized 
as  gross.* 

Thus  where  B,  a  general  merchant,  who  was  about  to  export  a 
case  of  leather,  being  applied  to  by  A  to  ship  a  case  for  him  at 
the  same  time,  voluntarily  and  without  any  compensation,  and  by 
agreement  with  A,  made  one  entry  of  both  cases  at  the  custom 
house,  but  under  an  improper  designation,  by  reason  of  which 
both  cases  were  seized,  it  was  held  that  he  was  not  liable  for  the 
loss  sustained  by  A. 

Heath,  J.,  said  :  "  The  defendant  in  this  case  was  not  guilty 
either  of  gross  negligence  or  fraud ;  he  acted  bona  fide.  If  a 
man  applies  to  a  surgeon  to  attend  him  in  a  disorder,  for  a  reward, 
and  the  surgeon  treats  him  improperly,  there  is  gross  negligence 
and  the  surgeon  is  liable  to  an  action ;  the  surgeon  would  also  be 
liable  for  such  negligence,  if  he  undertook  gratia  to  attend  a 
sick  person,  because  his  situation  implies  skill  in  surgery  ;  but  if 
the  patient  applies  to  a  man  of  a  different  employment  or  occu- 
pation, for  his  gratuitous  assistance,  who  either  does  not  exert 
all  his  skill,  or  administers  improper  remedies  to  the  best  of  his 
ability,  such  person  is  not  liable.     It  would  be  attended  with 

«  Hammond  x>.  Hussey,  51 N.  H.  40,  Ala.  265;  Skelley  ».  Kahn,  17  111.  171; 

12    Am.    Rep.    41;  Shiells  ».  Black-  Lampley  t>.  Scott,  24  Miss.  533;  Eddy 

burne,   1   H.    Bl.  158;    Beardslee    v.  v.  Livingston,  35  Mo.   493.  Bissell  v. 

Richardson,  11  Wend.  (N.  Y.)  25,  25  New  York,  &c.   R.    R.  Co,  29  Barb. 

Am.  Dec.  596;  Foster  v.  Essex  Bank,  (N.  Y.)  615;  Needles  v.  Howard.  1  B. 

17  Mass.  479,  9  Am.  Dec.  168;  Stan-  D.  Smith  (N.  Y.)  63;  Grant ».  Lud- 

ton«.  Bell.  2  Hawks  (N.  C.)  145,  11  low,  8  Ohio  St.  48. 
Am.  Dec.  744;  Haynie  «.  Waring,  29 

333 


§  498.  THE  LAW  OF  AGENCY.  [Book  lY. 

injurious  consequences,  if  a  gratuitous  undertaking  of  this  sort 
should  subject  the  person  who  made  it,  and  who  acted  to  the  best 
of  his  knowledge,  to  an  action."  And  Lord  Loughborough  said  : 
"If  in  this  case  a  ship-broker,  or  a  clerk  in  the  custom  house,  had 
undertaken  to  enter  the  goods,  a  wrong  entry  would  in  them  be 
gross  negligence,  because  their  situation  and  employment  neces- 
sarily imply  a  competent  degree  of  knowledge  in  making  such 
entries  ;  but  when  an  application,  under  the  circumstances  of  this 
case,  is  made  to  a  general  merchant  to  make  an  entry  at  the 
custom  house,  such  a  mistake  is  not  to  be  imputed  to  him  as 
gross  negligence."  ' 

Such  an  agent  would,  however,  be  liable  if  his  negligence  was 
of  such  a  nature  and  degree  that  it  might  justly  be  characterized 
as  wilful  or  malicious.* 

So  even  though  the  agent  be  possessed  of  professional  skill, 
yet  if  under  the  circumstances,  there  was  no  express  or  implied 
undertaking  to  exercise  it,  he  cannot  be  held  liable.  Thus  if  an 
attorney,  in  reply  to  a  casual  inquiry  made  upon  the  street  or 
elsewhere,  without  any  intention  to  mislead,  gives  erroneous 
advice  to  one  to  whom  he  sustains  no  professional  relations,  he 
cannot  be  held  liable.* 

S  498.  Same  Subject— When  employed  in  a  Capacity  which 
implies  Skill.  But  where  a  person  holds  himself  out  to  the 
public  as  possessing  professional,  peculiar  or  competent  skill ;  or 
offers  his  services  in  a  profession,  occupation  or  capacity,  which 
from  its  nature  implies  the  possession  of  such  skill,  he  will  be 
liable  to  those  who  employ  or  rely  upon  him  in  that  capacity  and 
upon  that  supposition,  to  the  same  extent  as  though  the  services 
were  to  be  rendered  for  a  reward.* 

This  principle  is  of  constant  application  to  the  cases  of  attor- 
neys and  physicians,'  but  it  is  not  confined  to  the  so-called 
learned  professions. 

»  Shiells  V.  Blackburne,  supra.  Grimes,  13  B.  Mon.  (Ky.)  188;  Car- 

»  Hammond  v.  Hussey,  supra.  penter  v.  Blake,  60  Barb.  (N.  Y.)  488; 

»  Fish  V.  Kelly,  17  Com.  Bench  (N.  s.  C.  50  N.  Y.  696;  Howard  c.  Grover, 

g.)  194.  28  Maine,  97;  Craig  v.   Chambers,  17 

«  Shiells  «.  Blackbume,  1  H.  Black-  Ohio  St.  253;  Benden  v.  Manning,  2 

Btone,  158;  Williams  u.  McKay,  40  N.  N.  H.  289;  Thorne  v.  Deas,  4  Johns. 

J.  Eq.  189,  53  Am.  Rep.  775;  McNev-  (N.  Y.)  84. 

Ins  V.   Lowe,   40  111.    209;    Hord  «.  •  McNevins  t».  Lowe,  stfpra. 

334 


Chap.  II.]  LIABILITY    OF    AGENT   TO    PRINCIPAL.  §  499. 

Thns  if  a  bank  has  undertaken  the  collection  of  a  note  or  other 
demand  and  through  its  negligence  the  claim  is  lost,  it  is  no 
defense  that  the  collection  was  to  be  made  gratuitously.*  Nor 
can  the  managers  of  a  bank  escape  responsibility  for  their  mis- 
management on  the  ground  that  they  received  no  compensation. 
In  such  a  case,  the  court  said  :  "  It  is  true  that  the  defendants 
were  unpaid  servants,  but  the  duty  of  bringing  to  their  office 
ordinary  skill  and  vigilance  was  none  the  less  on  that  account. 

*  *  *  These  defendants  held  themselves  out  to  the  public  as 
the  managers  of  this  bank,  and  by  so  doing  they  severally  engaged 
to  carry  it  on  in  the  same  way  that  men  of  common  prudence 
and  skill  conduct  a  similar  business  for  themselves."  * 

And  so  where  a  landlord  had  undertaken  gratuitously  to  make 
certain  repairs  upon  the  premises  of  his  tenant,  but  so  negligently 
and  unskilfully  performed  the  work  that  the  tenant's  wife  was 
injured,  the  court  in  Massachusetts  said  :  "  It  is  argued  that 
upon  a  gratuitous  undertaking  of  this  nature,  the  defendant 
could  only  be  held  resposible  for  bad  faith  or  for  gross  negligence, 
and  that  it  was,  therefore,  an  error  to  instruct  the  jury  that  he 
was  liable  for  want  of  ordinary  care  and  skill.  But  in  assumino- 
to  make  the  repairs  at  the  request  of  the  tenant,  he  must  be  con- 
sidered as  professing  to  have  the  requisite  skill  as  a  mechanic, 
and  as  undertaking  to  select  and  furnish  the  kind  and  quality  of 
materials  appropriate  to  the  accomplishment  of  the  desired  object. 

*  *  *  The  true  question  for  the  jury  was  whether  the  defen- 
dant had  discharged  the  duty  which  he  had  assumed,  with  that 
due  regard  to  the  rights  of  the  other  party  which  miglit  reason- 
ably have  been  expected  of  him  under  all  the  circumstances. 
His  undertaking  required  at  least  the  skill  of  an  ordinary 
mechanic,  and  his  failure  to  furnish  it,  either  because  he  did  not 
possess,  or  neglected  to  use  it,  would  be  gross  negligence."  » 

§  499.  Same  Subject— Bound  to  exercise  the  Skill  he  possesses. 
So  where  an  agent  possesses  a  competent  degree  of  skill  and  en- 
ters upon  the  performance  of  an  undertaking  requiring  its  exer- 
cise, he  will  be  liable  if  he  neglects  to  use  it,  although  the  ser- 
vice is  to  be  gratuitous. 

»  Durnford  v.   Patterson,  7  Martin  «  Williams  v.  McKay,  supra. 

(La.)  460,  12  Am.  Dec.  514;  SmedesiJ.  '  Gill  v.  Middleton,  105  Mass.  477, 

Bank  of  Utica,  20  Johns.  (N.  Y.)  372,  7  Am.  Rep.  548.     See  also  Steamboat 

8.  o.  8  Cow.  662.  e.  King,  16  How.  (U.  S.)  469. 

335 


§  499.  THE   LAW    OF   AGENCY.  [Book    IV. 

Thus  in  a  case  which  has  been  often  cited '  it  appeared  upon 
the  trial  before  Rolfe,  B.,  that  the  plaintiff  had  intrusted  his  horse 
to  the  defendant,  requesting  him  to  ride  it  for  the  purpose  of 
showing  it  to  a  prospective  purchaser.  The  defendant  accord- 
ingly rode  the  horse  and  for  the  purpose  of  showing  it,  took  it 
into  a  race  ground,  where  in  consequence  of  the  slippery  nature 
of  the  ground,  the  horse  slipped  and  fell  several  times,  and  in 
falling  broke  one  of  its  knees.  It  was  proved  that  the  defendant 
was  a  person  conversant  with  and  skilled  in  the  use  of  horses. 
The  learned  judge  left  it  to  the  jury  to  say  whether  the  nature  of 
the  ground  was  such  as  to  render  it  a  matter  of  culpable  negli- 
gence in  the  defendant  to  ride  the  horse  there ;  and  instructed 
them,  that  under  the  circumstances  the  defendant,  being  shown 
to  be  a  person  skilled  in  the  management  of  horses,  was  bound 
to  take  as  much  care  of  the  horse  as  if  he  had  borrowed  it,  and 
that  if  they  found  that  the  defendant  had  been  negligent  in 
going  upon  the  ground  where  the  injury  was  done,  or  had  ridden 
the  horse  carelessly  while  there,  they  should  find  for  the  plaintiff 
which  they  accordingly  did. 

Upon  appeal,  this  direction  was  approved.  Lord  Abingee 
said  that  the  defendant  was  bound  to  use  such  skill  in  the  man- 
agement of  the  horse  as  he  really  possessed,  and  that  whether  he 
did  so  or  not,  was  a  proper  question  for  the  jury.  Parke  B.  was 
of  the  same  opinion.  "The  defendant,"  said  he,  "was  shown  to 
be  a  person  conversant  with  horses,  and  was  therefore  bound  to 
use  such  care  and  skill  as  a  person  conversant  with  horses  might 
reasonably  be  expected  to  use ;  if  he  did  not,  he  was  guilty  of 
negligence.  The  whole  effect  of  what  was  said  by  the  learned 
judge  as  to  the  distinction  between  this  case  and  that  of  a  bor- 
rower was  this ; — that  this  particular  defendant,  being  in  fact  a 
person  of  competent  skill,  was  in  effect  in  the  same  situation  as 
that  of  a  borrower,  who  in  point  of  law  represents  to  the  lender 
that  he  is  a  person  of  competent  skill.  In  the  case  of  a  gratuit- 
ous bailee  where  his  profession  or  situation  is  such  as  to  imply 
the  possession  of  competent  skill,  he  is  equally  liable  for  the 
neglect  to  use  it." 

Rolfe,  B.,  before  whom  the  case  had  been  tried,  said:  "The  dis- 
tinction I  intended  to  make  was,  that  a  gratuitous  bailee  is  only 

« Wilson  V.  Brett,  11  Mees.  &  Wels.  lia 


Chap.  II.]  LIABILITY   OF    AGENT   TO    PRINCIPAL.  §  5U2. 

bound  to  exercise  such  skill  as  he  possesses,  whereas  a  hirer  or 
borrower  may  reasonably  be  taken  to  represent  to  the  party  who 
lets,  or  from  whom  he  borrows,  that  he  is  a  person  of  competent 
skill.  If  a  person  more  skilled  knows  that  to  be  dangerous, 
which  another  not  so  skilled  as  he  does  not,  surely  that  makes  a 
difference  in  the  liability.  I  said  I  could  see  no  difference  be- 
tween negligence  and  gross  negligence — that  it  was  the  same  thing 
with  the  addition  of  a  vituperative  epithet ;  and  I  intended  to 
leave  it  to  the  jury  to  say  whether  the  defendant,  being  as  ap- 
peared by  the  evidence,  a  person  accustomed  to  the  management 
of  horses,  was  guilty  of  culpable  negligence." 

§  500.  Reasonable  Skill— How  determined.  How  this  reason- 
able degree  of  skill  is  to  be  determined  is  a  question  of  import- 
ance. There  are  cases  where  its  presence  or  absence  is  so  palpa- 
ble and  unquestionable  that  the  court  may  so  declare  as  matter  of 
law.  But  in  cases  where  the  facts  are  controverted,  and  the  ex- 
istence or  non-existence  of  certain  of  them  may  fairly  be  pre- 
sumed to  affect  the  mind  in  any  given  exigency,  there  the  whole 
question  of  the  existence  of  the  facts  and  the  conclusions  to  be 
deduced  from  them,  is  one  of  fact  to  be  determined  by  the  jury 
or  other  tribunal  by  reference  to  all  the  circumstances  of  the  case, 
including  the  subject-matter  and  objects  of  the  agency,  and  the 
known  character,  qualifications  and  relations  of  the  parties.^ 

§  501.  Agent  not  liable  for  unforeseen  Dangers.  It  follows 
as  a  corollary  from  the  principles  above  stated,  that  while  the  agent 
is  bound  to  exercise,  for  the  protection  of  the  principal,  a  reason- 
able degree  of  care  and  skill,  and  would  be  liable  for  any  loss  or 
damage  which  he  might  sustain  on  account  of  a  failure  so  to  do, 
yet  the  agent  can  not  be  held  responsible  for  unforeseen  and  un- 
expected losses  or  damage  out  of  the  ordinary  course  of  business 
or  of  natural  events  and  not  to  be  guarded  against  by  reasonable 
diligence  or  foresight.* 

§  502.  Agent  presumed  to  have  done  his  Duty.  The  law  does 
not  presume  negligence  on  the  part  of  the  agent.  On  the  other 
hand,  it  presumes  that  the  agent  has  done  his  duty,  until  the  con- 

'  Pennsylvania  R,  R.  Co.  ®.  Ogier,  35  Mo.  493;  Grant  d.  Ludlow,  8  Ohio 

85Penn.  St.  60,   78  Am.   Dec.   332;  St.  1. 

Gill  V.  Middleton,   105  Mass.  477,  7  2  Johnson  v.  Martin,  11  La.   Ann. 

Am.  Rep.  548;  Eddy  t>.  Livingston,  27,  66  Am.  Dec.  193. 

22  337 


§  503.  THE    LAW    OF    AGENCY.  [Book  lY. 

trary  appears,  and  the  burden  of  proof  is  upon  him  who  alleges 
a  misfeasance,  to  establish  it.' 

§  503.  Agent  not  liable  if  Principal  also  negligent.  The  or- 
dinary rule  of  contributory  negligence  applies  to  the  question 
under  consideration.  Thus  if  the  principal  has  by  his  own  negli- 
gence, contributed  to  cause  the  injury,  or  if,  by  use  of  reasonable 
diligence  on  his  own  part,  he  could  have  prevented  the  injury, 
the  agent  can  not  be  held  responsible  for  it.* 

§  504.  When  Agent  liable  for  Neglect  of  Subagent.  The 
question  of  the  liability  of  the  agent  for  the  misconduct  of  a 
subagent,  has  already  been  considered  in  an  earlier  portion  of  the 
work  to  which  the  reader  is  referred.' 

§  505.  Effect  of  Ratification  upon  the  Agent's  Liability. 
This  question  also  has  been  already  discussed,  and  nothing  need 
be  added  here  in  reference  to  it.* 

§  506.  The  Measure  of  Damages.  The  question  of  the  meas- 
ure of  the  damages  to  be  recovered  for  the  agent's  neglect  is 
substantially  the  same  that  arises  where  an  injury  has  been  sus- 
tained by  reason  of  a  violation  of  instructions.  The  principal  is 
entitled  to  full  compensation ;  to  be  put  into  that  situation  in 
which  he  would  have  been  if  the  agent  had  performed  his  duty. 
In  other  words,  he  is  entitled  to  recover  such  damages  as  natur- 
ally, proximately  and  legitimately  result  from  the  wrongful  act 
complained  of.  Profits  which  are  possible  or  speculative  merely, 
are  not  to  be  recovered,  but  at  the  same  time,  it  is  not  necessary 
that  the  loss  or  damage  should  be  directly  or  immediately  caused 
by  the  default,  if  such  loss  or  damage  can  fairly  be  considered  as 
the  natural  result  or  just  consequence  of  it.' 

§  507.  Same  Subject— Judgments,  Costs,  Counsel  Pees.  The 
principal  may  often  be  made  liable  in  actions  brought  against 
him  by  third  persons  to  recover  damages  for  some  wrong  or  injury 
sustained  by  them  solely  by  reason  of  the  agent's  neglect  or  default 
in  the  performance  of  his  duty  to  his  principal,  in  which  actions 
the  principal  may  not  only  be  charged  in  damages,  but  may  be 

»Gaither«.  Myrick,  9  Md.  118,  66  ^Ante,  %  197;  St.  Louis,  &c.  Ry  v. 

Am.  Dec.  316;  Lampley  v.  Scott,  24  Smith,  —  Ark.  — ,  3  S.  W.  Rep.  364. 

Miss.  533.  *Ante,  %  170  et  seq. 

» Sioux  City,  &c.  R.  R.  Ck>.  v.  Wal-  «  Bell  v.  Cunningham,  3  Peters  (U. 

ker,  49  Iowa,  278.  8.)  69;  Gilson  v.  Collins,  68  111.  136. 

338 


Oiiap.  IL]  LiABiLixr  of  agent  to  principal.  §  509. 

compelled  to  pay  costs  and  counsel  fees  incurred  in  the  defense. 
The  question  thereupon  arises  how  far  such  judgment,  costs  and 
expenses  can  be  regarded  as  proper  elements  of  damage  in  an 
action  by  the  principal  against  the  agent  based  upon  the  same 
neglect  and  default. 

Of  course  where  the  act  which  caused  the  injury  or  damage 
was  done  with  the  express  or  implied  consent  or  direction  of  the 
principal,  or  has  been  subsequently  ratified  by  him,  or  if  it  was 
contributed  to  by  some  neglect  or  default  on  the  part  of  the  prin- 
cipal himself,  no  recovery  can  be  had  by  him  against  the  agent. 

Where,  however,  the  act  was  purely  and  wholly  the  result  of  a 
violation  by  the  agent  of  his  duty  to  his  principal,  the  latter  upon 
being  sued  therefor,  may  notify  the  agent  of  the  pendency  of  the 
action  and  call  upon  him  to  defend  it,  and  if  he  fails  to  defend, 
he  may  be  held  liable  to  the  principal  not  only  for  the  amount  of 
damages  and  costs  recovered,  but  for  all  reasonable  and  necessary 
counsel  fees  and  other  expenses  incurred  in  such  defense.^ 

§  508.  Illustrations  of  this  Rule.  It  is  not  within  the  limits 
of  the  present  work  to  exhibit  in  detail  all  of  the  various  cases 
in  which  these  principles  have  been  applied.  Enough  may,  how- 
ever, be  given  to  sufiiciently  illustrate  their  application  to  the  law 
of  agency. 

1.    Neglect  of  Agents  in  maMng  Loans. 

§  509.  Liable  for  resulting  Loss.  It  is  the  duty  of  an  agent 
who  undertakes  to  loan  money  for  his  principal  to  exercise  rea- 
sonable care  and  prudence  in  the  selection  of  the  security  ;  in  the 
examination  of  the  title  ;  in  the  procuring  of  proper  convey- 
ances ;  in  making  the  necessary  records,  and  in  the  performance 
of  those  other  acts  which  may  be  necessary  under  the  circum- 
stances to  perfect  and  protect  the  security.  If  he  fails  in  the 
performance  of  this  duty,  and  loss  thereby  results  to  his  princi- 
pal, the  agent  is  responsible  for  the  amount  of  the  loss." 

'Wilson's.  Greensboro,  54  Vt.  533;  «McFarland  v.  McCIees,  —  Penu. 

Inhabitants    of    Westfield  v.    Mayo,  St.   — ,   5  Atl.    Rep.    50;    Bank    of 

123  Mass.    100,    23    Am.    Rep.    292;  Owensboro    v.     Western    Bauk,    13 

Chesapeake,  &c.  Co.  v.  County  Com-  Bush  (Ky.)  536,    26  Am.    Rep.    211; 

missioners,  57  Md.  201,  40  Am.  Rep.  Banuon  v.  Warlield,  43  Md.  22. 
430;  Brooklyn  v.  Railway  Co.  47  N. 
Y.  475,  7  Am.  Rep.  469. 

339 


§  510.  THB   LAW   OF   AGENCY.  [Book    IV. 

2.     Neglect  of  Agent  to  effect  Insurance. 

§  510.  When  liable  for  Loss.  The  same  rule  applies  to  the 
case  of  an  agent  whose  duty  it  is  to  insure  the  property  of  his 
principal.  This  duty  may  arise  as  has  been  seen,'  from  express 
instructions,  but  while  in  other  cases  the  duty  does  not  arise  from 
the  mere  fact  of  agency,  it  will  arise  wherever  the  agent  has  in 
his  possession  property  of  his  principal  of  a  kind  which  it  is  the 
usage  to  insure,*  or  which  it  has  been  the  agent's  habit  to  insure,' 
or  which  reasonable  care  and  prudence  requires  shall  be  protected 
against  loss.* 

The  duty  of  the  agent  when  not  otherwise  limited  by  express 
instructions,  requires  the  exercise  on  his  part  of  reasonable 
care  and  prudence  in  the  selection  of  the  insurer ; »  in  the  deter- 
mination of  the  duration  and  amount  of  the  risk;  in  pro- 
curing proper  and  sufficient  policies  or  contracts  and  in  insert- 
ing such  special  stipulations  and  provisions  as  the  circum- 
stances of  the  case  reasonably  require.'  But  unless  expressly 
instructed  so  to  do,  he  would  not  be  bound  to  insure  against 
unusual  and  unforeseen  dangers,  but  only  against  such  as  an  or- 
dinarily prudent  man  would  select  under  the  circumstances.  If 
the  agent  is  unable  to  procure  the  insurance,^  or  if  after  having 
been  in  the  habit  of  insuring  upon  his  own  motion,  he  deter- 
mines no  longer  to  do  so,"  he  should  promptly  notify  his  princi- 
pal in  order  to  give  the  latter  an  opportunity  to  insure.  Failing 
in  the  performance  of  his  duty,  the  agent  is  liable  for  the  full 
amount  of  the  insurance  which  he  should  have  effected,  less  the 
premium.*     His  duty  is  not  performed  if  he  selects  underwriters 

I  §  474.  «  Ante,  §§  493,  495. 

«  Kingston  «.  Wilson,  4  Wash.  (TJ.  •'Strong  ©.  High,  2  Rob.  (La.)  103. 

8.  C.  C.)  310;  ShirtlifE  r>.  Whitfield,  88  A.m.  Dec.  195. 

2  Brev.  (S.  C.)  71,   3  Am.  Dec.  701 ;  •  Mallough  «.  Barber,  4  Camp.  150. 

Berthoudc.  Gordon,  6  La.  579,  538;  t Callander*.  Oelrichs,  5  Bing.  N. 

Ralston «.  Barclay,  6  Id.  653;  Lee  v.  C.  58;  Smith  r.  Lascelles,    2  T.    R. 

Adsit,   37  N.   Y.    78;    Shoenfeld  «.  187. 

Fleisher,    73  111.   404;    Schaeffer    v.  'Area   ti.   Milliken,   35  La.    Ann. 

Kirk,  49  111.  251;  Brisban  v.  Boyd,  4  1150. 

Paio's  (N.  Y.)  Ch.  17.  »Storeri>.  Eaton,   50  Me.   219,   79 

•  Shoenfeld     «.     Fleisher,    mpra ;  Am.  Dec.  611;  Mallough  c.  Barber,  4 

Schaeffer  e.  Kirk,  mvra;  Lee  t>.  Adsit,  Camp.  150;  Park  u.  Hamond  4  Camp. 

$upra;  Brisban  v.  Boyd,  supra;  Jials-  844;  Perkins  v.  Washington  Ins.  Co., 

tont?.  Barclay,  $upra;   Berthoud   v.  4  Cow.   (N.   Y.)  645;    DeTastett  t>. 

Gordon,  supra.  Crousillat,  2  Wash.  (U.  S.  C.  C.)  132; 

340 


Chap.  II.]  LIABILITY    OF   AGENT   TO    PRINCIPAL.  §  511. 

notoriously  in  bad  credit  or  insolvent ;  •  or  if  he  accepts  of  mani- 
festly insufficient  or  invalid  policies.*  If  the  principal  has  by 
express  instructions  fixed  the  amount  of  the  insurance  and  such 
amount  might,  by  reasonable  diligence,  have  been  obtained,  the 
agent  who  neglects  to  insure  is  liable  for  that  amount  as  on  a 
valued  policy.'  Where  no  amount  is  so  fixed,  the  agent  should 
ordinarily  procure  insurance  to  the  full  insurable  value.* 

3.   Neglect  of  Agent  in  making  Collections. 

§  511.  Liable  for  Loss  from  Negligence.  The  liability  of  an 
agent  employed  to  collect  a  demand,  depends  largely  upon  the 
nature  of  his  undertaking.  Such  an  agent  may,  undoubtedly,  by 
express  contract,  impose  upon  himself  the  absolute  duty  to  col- 
lect the  demand  in  any  event.  In  such  a  case  he  becomes,  prac- 
tically, a  guarantor  of  the  debt  and  is  liable  as  such. 

Where  no  such  express  contract  is  made,  however,  the  agent 
by  assuming  the  collection  of  the  claim,  undertakes  that  he  will 
exercise  reasonable  care,  skill  and  diligence  in  making  the  money. 
If  he  does  this,  and  is  unable  to  collect  the  demand,  he  is  not 
liable ;  but  if  from  his  neglect  to  exercise  this  degree  of  care, 
skill  and  diligence,  the  claim  or  any  part  of  it  is  lost,  the  agent 
is  liable  for  the  loss.' 

This  rule  imposes  upon  the  agent  the  duty  to  take  all  the  pre- 
cautions and  avail  himself  of  all  the  remedies,  which  are  reason- 
able and  proper  under  the  circumstances, — which  a  reasonably 
prudent  and  careful  man  would  avail  himself  of  under  like  cir- 
cumstances.* 

If  certain  proceedings  are,  by  law,  required  to  be  taken,  for 

Thome  tJ.  Deas,  4  Johns.  (N.  Y.)  84;         »  Allen  v.  Suydam.  20  Wend.  (N. 

Shoenfeld    v.   Fleisher,   73  111.   404;  Y)  321,  32  Am.  Dec.  555;   Buell  «. 

Callander  ®.  Oelrichs,  5  Bing.  (N.  C.)  Chapin,  99  Mass.  594;  Reed  «.  North- 

58;  Gray  ».  Murray,  3  Johns.  (N.  Y.)  rup,  50  Mich.  442;  Fick  v.  Runnels, 

Q-^  157,  48  Mich.    302.     In  order  to   recover 

» Strong  V.  High,  3  Rob.  (La.)  103,  against  the  agent  for  failure  to  collect 

88  Am.  Dec.  195.  it  is  sufficient  to  show  that  debtor 

« Mallough  ».  Barber,  iwpra.  was   solvent,   and  that  with  proper 

•  Miner  o.Tagert,3Binn.(Penn,)  204.  exertion,  claim  could  have  been  col- 

♦  Beardsley  c.  Davis,  52  Barb.  (N.  lected.  Wiley  v.  Logan,  95  N.  0. 
Y.)  159;  Betteley  -o.  Stainsby,  12  C.  858. 

B.  (N.  8.)  499;  Douglass  «.  Murphy,  •  Allen  ».  Suydam,  twpra. 

16  U.  C.  Q.  B.  113. 

341 


§  511.  THE   LAW   OF   AGENCY.  [Book  FV. 

the  protection  of  his  principal,  the  agent  must  see  that  these 
requirements  are  complied  with.  Thus  it  is  the  duty  of  an 
agent  who  receives  negotiable  paper  to  collect,  to  so  act  as  to 
secure  and  preserve  the  liability  thereon  of  all  parties  prior  to 
his  principal ;  and  if  he  fails  in  this  duty,  and  thereby  causes 
loss  to  his  principal,  he  becomes  liable  for  such  loss.'  Such  an 
agent  must  therefore  present  the  bill  or  note  for  acceptance  with- 
out delay  and  present  it  for  payment  at  maturity.  If  the  bill  or 
note  be  not  duly  accepted  or  paid,  he  must  cause  it  to  be  imme- 
diately protested,  where  protest  is  necessary,  and  cause  notice  to 
be  duly  given  of  its  dishonor. 

Whether  the  agent  shall  give  notice  of  the  dishonor  to  prior 
parties  directly,  or  to  his  principal  only,  but  in  time  to  enable 
him  to  give  such  notice  to  prior  parties,  is  a  question  upon  which 
the  authorities  are  not  harmonious.  The  weight  of  authority, 
however,  seems  to  be  that  the  agent  is  only  bound  to  notify  his 
principal.* 

For  the  purposes  of  notice,  a  bank  or  other  agent  to  whom  a 
note  or  bill  has  been  transmitted  for  collection  is  to  be  consid- 
ered as  though  he  were  the  real  holder,  and  his  principal  a  prior 
endorser.  The  agent  may  therefore  notify  his  principal  only, 
and  the  latter  has  the  same  time  to  notify  prior  parties.' 

But  this  is  not  the  utmost  limit  of  the  agent's  duty  and  liabil- 
ity. He  may  so  act  as  to  charge  all  of  the  parties  to  the  paper, 
and  yet  become  liable  to  his  principal  for  a  loss  occasioned  by 
his  negligence.  The  rule  which  will  measure  the  diligence 
which  is  exacted  of  a  holder  of  such  paper  in  order  to  charge 
the  prior  parties,  will  not  always  measure  the  diligence  which  is 

•  First  National  Bank  of  Meadville  Engs,  5  Cow.  (N.  Y.)  303;  Phipps  «. 

f).  Fourth  National  Bank  of  N.  Y.  77  Millbury  Bank,  8  Mete.  (Mass.)  79; 

N.  Y.  320,  33  Am.  Rep.  618;  Allen  v.  Howard  «    Ives,  1  Hill  (N.  Y.)  203. 

Merchants'  Bank,  23  Wend.  (N.  Y.)  Contra,  Thompson  v.  Bank  of  South 

215,  34  Am.    Dec.  289;  Chapman  v.  Carolina,  3  Hill  (S.  Car.)  Law,  77,  30 

McCrea,  63  Ind.  360.  Am.    Dec.    354;   Smedes  t.  Bank  of 

8  Colt  0.  Noble,  5  Mass.  167:  Burn-  Utica,  20  Johns.   (N.   Y.)  372;  Mer- 

hamt).  Webster,  19  Me.  233;  United  chants'   Bank  «.    Stafford  Bank,    44 

States  Bank  ».  Goddard,  5  Mason  (U.  Conn.  565;  McKinster    ».    B:ink    of 

S.  C.  C.)  366;  Farmers'  Bank  «.  Vail,  Utica,  9  Wend.  (N.  Y.)  46;  Chapman 

21   N.    Y.    485;  Bank  of  Mobile  e.  t>.  McCrea,  63  Ind.  360. 

Huggins,  3  Ala.  (N.  S.)  206;  Mead  «.  »  Seaton  «.  Scovill.  18  Kan.  438. 

342 


Cliap.  n.]  LIABILITT   01"   AGENT   TO   PRINCIPAL.  §  511.' 

required  of  a  collecting  agent  in  the  discharge  of  his  duty  to  his 
principal.' 

Thus  it  is  said  by  a  learned  judge :  "  Suppose  an  agent  re- 
ceives for  collection  from  the  payee,  a  sight  draft.  No  circum- 
stance can  make  it  his  duty,  in  order  to  charge  the  drawer,  to 
present  it  for  payment  until  the  next  day.  He  has  entered  into 
no  contract  with  the  drawer,  is  not  employed  or  paid  by  him  to 
render  him  any  service,  and  owes  him  no  duty  to  protect  him 
from  loss.  What  is  required  to  be  done  to  charge  the  drawer  is 
simply  a  compliance  with  the  condition  attached  to  the  draft,  as 
if  written  therein ;  and  that  condition  is  in  all  cases  complied 
with  by  presentation,  demand  and  notice  on  the  next  day  after 
receipt  of  the  draft.  But  suppose  the  agent,  on  the  day  he 
receives  the  draft,  obtains  reliable  information  that  the  drawee 
must  fail  the  next  day,  and  that  the  draft  will  not  be  paid  unless 
immediately  presented ;  what  then  is  the  duty  he  owes  his  prin- 
cipal whose  interests,  for  a  compensation,  he  has  agreed  with 
proper  diligence  and  skill,  to  serve,  in  and  about  the  collection 
of  the  draft  ?  Clearly,  all  would  say,  to  present  the  draft  at 
once ;  and  if  he  fails  to  do  this,  and  loss  ensues,  he  incurs  re- 
sponsibility to  his  principal ;  and  yet  the  drawer  would  be  charged 
if  it  was  not  presented  until  the  next  day.  Where  an  agent 
receives  a  bill  for  collection,  payable  some  days  or  months  after 
date,  in  order  to  charge  tlie  drawer,  he  need  not  present  it  for 
acceptance  until  it  falls  due;  and  if  he  then  presents  it  and 
demands  pnynient,  and  protests  it  and  gives  the  notice,  the 
drawer  is  li^.d;  and  yet  in  such  a  case  he  owes  his  principal  the 
duty  to  present  the  bill  for  acceptance  at  once,  and  if  he  fails  in 
such  duty  and  loss  ensues  to  his  principal  he  becomes  liable  for 
such  loss." ' 

And  so  it  was  said  by  Chancellor  Walworth  :  "  If  the  re- 
ceiving a  bill  by  an  agent  to  collect  implies  an  obligation  on  his 
part  to  take  the  necessary  steps  to  charge  the  drawer  and  indors- 
ers  by  protest  and  notices,  in  case  it  is  not  accepted  and  paid  by 
the  drawee,  1  do  not  see  why  due  diligence  on  the  part  of  the 
agent  in  procuring  the  acceptance  of  the  drawee  without  delay, 

»  First  National  Bank  v.  Fourth  Am.  Rep.  690,  again  reported  in  53 
Nat.  Bank,  77  N.  Y.  320,  33  Am.  Rep.       N.  Y.  545. 

618;  Smith  v.  Miller,  43  N.  Y.  172,  3  «  First  Nat.   Bank  v.  Fourth  Nat 

Bank,  supra. 

348 


I  511.  THE   LAW   OF   AGENCY.  [Book  IV. 

when  it  may  be  necessary  or  beneficial  to  the  interests  of  the 
principal,  should  not  also  be  implied,  as  it  is  the  duty  of  a  faith- 
ful agent  to  do  for  his  principal  whatever  the  principal  himself 
would  probably  have  done,  if  he  was  a  discreet  and  prudent  man. 
Even  where  the  principal  is  habitually  negligent  in  attending  to 
his  own  interests,  it  forms  no  excuse  for  similar  negligence  on 
the  part  of  his  agent."* 

In  accordance  with  these  principles  it  was  held  that  an  agent 
intrusted,  for  collection,  with  a  draft  or  bill  payable  on  a  partic- 
ular day,  is  liable  for  any  unnecessary  delay  in  presenting  it  for 
acceptance,  although  it  may  not  be  yet  due.'  So  the  defendant, 
a  bank  in  New  York,  received  for  collection  a  draft  upon  a  firm 
in  that  city  upon  the  morning  of  a  certain  day  and,  upon  presen- 
tation, received  in  payment  the  drawee's  check  upon  another 
bank  in  the  same  city,  and  delivered  up  the  draft.  The  check, 
however,  was  not  presented  until  the  next  day,  and  then  through 
the  clearing  house.  On  that  day,  and  before  it  was  presented  for 
payment,  the  drawers  of  the  check  failed  and  payment  was 
refused.  The  defendant  thereupon  returned  the  check  to  the 
drawers,  got  back  the  draft,  made  a  formal  demand  for  its  pay- 
ment, caused  it  to  be  protested,  and,  on  the  next  day,  gave  due 
notice  of  its  dishonor.  It  appeared  that  the  bank  upon  which 
the  check  was  drawn  paid  all  of  the  drawer's  checks  down  to  the 
time  of  the  failure,  and  that  the  check  would  have  been  paid  if 
presented,  as  it  might  easily  have  been,  for  payment  upon  the 
day  it  was  given.  Upon  this  state  of  facts  it  was  held  that, 
though  the  action  of  the  defendant  bank  might  have  been  suflB- 
cient  to  charge  prior  parties,  it  was  negligent  in  not  securing  pay- 
ment of  the  check  on  the  day  that  it  was  drawn,  and  hence  was 
liable  for  the  loss.'  Indeed,  as  has  been  seen,*  there  is  no  im. 
plied  authority,  in  an  agent  to  collect,  to  receive  a  check  in  pay- 
ment at  all.  It  is,  undoubtedly,  a  common  practice  among  busi- 
ness men  in  their  own  transactions,  to  give  and  receive  checks  in 
payment  of  demands.  This  is,  however,  a  matter  of  convenience 
only,  and  the  check  does  not  constitute  payment  unless  expressly 
received  as  such.  But  this  practice  falls  short  of  a  usage  apply- 
ing to  the  collection  of  drafts  for  absent  parties.     And  it  is  not 

*  Allen  V.    Suydam,  20  Wend.  (N.  »  First  Nat.  Bank  «.  Fourth  Nat 
Y.)  321,  32  Am.  Dec.  555.                          Bank,  supra. 

*  Allen  V.  Suydam,  supra.  *  Ante,  §  381. 

844 


Chap,  n.]  LIABILITY   OF   AGENT   TO    PKINCIPAL.  §  513. 

a  reasonable  usage  that  one  who  undertakes  to  collect  a  draft  for 
an  absent  party  should  be  allowed  to  give  it  up  to  the  drawee, 
and  sacrifice  the  claim  which  the  owner  may  have  on  prior  par- 
ties upon  the  mere  receipt  of  a  check  which  may  turn  out  to  be 
worthless.' 

§  512.  Same  Subject — Neslect  in  making  Remittances. 
Where,  as  has  been  seen,  the  principal  directs  his  agent  to  send 
the  money  in  a  certain  way  or  through  a  particular  channel,  trans- 
mitting it  in  a  different  mode  is  evidence  of  negligence.*  But 
unless  so  bound  by  express  instructions,  the  agent  is  held  only 
for  reasonable  skill  and  diligence  in  sending  the  money.' 

Thus  where  the  principal  sent  a  claim  of  about  sixty  dollars 
to  his  agent  by  mail,  with  instructions  to  the  agent  to  "  forward" 
the  proceeds,  it  was  held  that  the  agent  was  warranted  in  be- 
lieving that  he  was  autliorized  to  transmit  the  proceeds  in  the 
same  way.  *  Said  Gray,  J. :  "  There  is  no  rule  of  law  that  the 
postoffice  established  by  the  government  for  the  purpose  of  carry- 
ing letters  is  a  less  safe  or  appropriate  means  of  forwarding 
money  than  a  private  carrier  or  banker.  Whether  it  is  so  in  any 
particular  case  is  a  question  of  fact,  depending  upon  the  amount 
to  be  sent,  the  proportionate  expense  of  different  modes  of  trans 
mission,  the  time  and  distance  intervening,  the  prevailing  usage 
in  similar  cases,  and  other  circumstances  surrounding  ohe  trans- 
action, all  of  which  are  proper  for  the  consideration  of  the 
jury.'" 

§  513.  Same  Subject— Liability  for  Neglect  of  Correspondents 
and  Subagents.  As  has  been  already  stated,  the  principle  which 
runs  through  the  cases,  is  that  if  an  agent  employs  a  subagent  for 
his  principal  and  by  his  authority,  express  or  implied,  then  the 
subagent  is  the  agent  of  the  principal  and  is  responsible  directly 
to  the  principal  for  his  conduct.  In  such  a  case  the  agent  is  not 
liable  for  the  negligence  of  the  subagent,  unless  he  has  failed  to 
exercise  due  care  in  the  selection  of  euch  subagent.  But  where 
the  agent,  having  undertaken  to  do  the  business  for  his  principal, 

>  "Whitney  v.  Essoa,  99  Mass.  308,  Bank   «.  Merchants'  Bank,  6  Mete. 

96  Am.  Dec.  763.  {Mas8.)  26. 

•  Ante,  §  474.  *  Buell  v.  Chapin,  supra;  Morgan  9, 

3  Buell  V.  Chapin,  99  Mass.  594.  97  Richardson,  13  Allen  (Mass.)  410. 

Am.  Dec.  58;  Kingston  v.  Kincaid,  1  »  In  Buell*.  Chapin,  supra. 

Wash.   (U.  S.  C.  C.)  457;  Mechanics 

345 


8  514.  THE   LAW   OF    AGENOT.  [Book   lY. 

employs  a  servant  or  subagent  on  his  own  account  to  assist  him 
in  what  he  has  undertaken,  then  the  subagent  or  servant  is  the 
representative  of  the  agent  only,  and  is  responsible  to  him  for 
his  conduct,  and  the  agent  is  responsible  to  the  principal  for  the 
manner  in  which  the  business  has  been  done,  whether  by  himself 
or  by  his  servant  or  agent.*  In  the  latter  case,  the  agent  stands 
in  the  position  of  an  independent  contractor,  at  liberty  to  per- 
form the  undertaking  by  the  agencies  of  his  own  selection,  and  is 
responsible  to  his  principal  for  the  due  execution  of  the  enter- 
prise by  the  means  he  has  selected.  As  has  been  seen,  the  author- 
ity of  the  agent  to  employ  a  snbagent  on  his  principal's  account, 
may,  in  certain  cases,  be  implied;*  The  application  of  these  prin- 
ciples to  the  case  of  collecting  agents  has  not  been  altogether  har- 
monious, yet  the  preponderance  of  authority  is  believed  to  be  in 
accordance  with  them. 

§  514.  Same  Subject— Liability  of  Banks.  There  can  be  no 
question  of  course,  that  the  bank  is  liable  for  the  neglect  of  its 
own  immediate  olficers  and  servants  ;  these  are  the  direct  execu- 
tive actors  of  the  bank  through  whom  all  of  its  transactions  must 
necessarily  be  performed. 

But  when  it  becomes  necessary  to  employ  an  independent 
ao-ency,  such  as  a  notary  public  to  protest  the  paper,  or  another 
bank  when  the  demand  is  payable  in  a  distant  town,  other  ques- 
tions arise. 

For  the  Neglect  of  the  Notary.  The  doctrine  was  established 
in  New  York  at  an  early  period  and  has  since  been  maintained, 
that  a  bank  receiving  negotiable  paper  for  collection,  in  the  ab- 
sence of  an  express  agreement  or  recognized  custom  limiting  its 
liability^  stands  in  the  attitude  of  an  independent  contractor,  and 
that  if,  in  the  course  of  the  performance,  it  employs  a  notary  to 
present  the  paper  for  payment  and  give  the  proper  notice  to 
charge  the  parties,  the  notary  is  the  agent  of  the  bank  and  not 
of  the  depositor  or  owner  of  the  paper.'  The  bank  is  therefore 
liable  for  his  negligence.  The  same  rule  formerly  prevailed  in 
Louisiana  *  and  South  Carolina,"  but  has  since  been  overruled. 

1  See  ante,  %  197.  26  Am.  Dec.  493,  overruled  in  Hyde 

«  See  ante,  %%  102-196.  «•  Planters'  Bank,  17  La.  560:  Bald- 

»  Ayrault  v.  Pacific  Bank,  47  N.  T.  win  ®.  Bank  of  Louisiana,  1  La.  Ann.  13. 
670,  7  Am.  Rep.  489.  '  Thompson  v.  Bank  of  South  Caro- 

«  Miranda  v.  City  Bank,  6  La.  740,  lina,  3  Hill  L.  77,  30  Am.  Dec.  354. 

346 


Chap.  II.]  LIABILITY   OP   AGENT   TO   PRINCIPAL. 


§5U. 


It  appears  to  be  approved  in  Indiana'  and  is   unqualifiedly  in- 
dorsed in  New  Jerse}'."     It  is  also  approved  in  Kansas.* 

But  the  weight  of  authority  is  believed  to  be  that  if  the  bank 
exercises  due  care  in  the  selection  of  a  competent  notary,  it  is  not 
liable  for  his  neglect  in  the  performance  of  the  duty  entrusted 
to  him.*  Where,  however,  the  bank  employs  a  notary  by  the 
year,  and  takes  from  him  a  bond  for  the  faithful  discharge  of 
his  duties,  he  is  to  be  regarded  as  an  officer  of  the  bank,  and  the 
bank  will  be  liable  for  his  negligence  or  default.' 

For  the  Neglect  of  a  Correspondent  Bank.  The  same  conflict 
of  authority  exists  as  to  the  liability  of  a  bank  which  receives, 
in  the  ordinary  manner,  a  note  or  bill  payable  at  a  distant  place, 
and  sends  it  to  its  correspondent  there  for  collection.  It  is  well 
established  in  New  York'  that  in  such  a  case  the  correspondent 
bank  is  the  agent  of  the  bank  from  which  it  received  the  paper, 
and  not  of  the  depositor  or  owner  of  the  paper.  The  transmit- 
ting bank  is,  therefore,  liable  for  the  neglect  or  default  of  the 
correspondent  bank  in  making  the  collection  and  transmitting 
the  proceeds.    This  rule  prevails  also  in  Michigan,'  Ohio,'  New 


1  American  Express  Co.  v.  Haire, 
21  Ind.  4,  83  Am.  Dec.  334.  The 
point  was  not  directly  involved,  but 
the  court  seem  to  approve  the  doc- 
trine of  the  New  York  cases.  The 
question  at  issue  was  the  liability  of 
an  express  company,  which,  having 
undertaken  the  collection  of  a  bill  of 
exchange  caused  it  to  be  protested 
too  soon.  It  was  held  to  be  liable. 
See  Tyson  v.  State  Bank,  6  Blackf. 
(Ind.)  235. 

»  Davey  v.  Jones,  13  Vroom.  (N.  J.) 
28,  36  Am.  Rep.  505. 

•  Bank  of  Lindsborg  D.  Ober,  81 
Kans   599. 

*  Tiernan  «.  Commercial  Bank,  7 
How.  (Miss.)  648;  Agricultural  Bank 
c.  Commercial  Bank,  7  Smedes«&Mo. 
(Miss.)  592:  Bowling  v.  Arthur,  34 
Miss.  41;  Third  National  Bank  v. 
Vicksburg  Bank,  61  Miss.  112,  48 
Am.  Rep.  78;  Belle  mire  «k  Bank  of 
U.  S.,  4  Whart.  105,  83  Ann  Dec.  46; 


Warren  Bank  v.  Suffolk  Bank,  10 
Cush.  (Mass.)  583;  Stacy  v.  Dane 
County  Bank,  13  "Wis.  629;  Britton  v. 
Nichols,  104  U.  S.  757;  Bank  v.  But- 
ler, 41  Ohio  St.  519,  52  Am.  Rep.  94. 

•  Gerhardt  v.  Boatmen's  Savings 
Inst.  38  Mo.  60,  90  Am.  Dec.  407. 

«  Ayrault  v.  Pacific  Bank,  47  N.  T. 
570,  7  Am.  Rep.  489;  Bank  of  Orleans 
V.  Smith,  3  Hill  (N.  Y.)  5G0;  Mont- 
gomery County  Bank  v.  Albany  City 
Bank,  7  N.  Y.  459;  Commercial  Bank 
V.  Union  Bank,  11  N.  Y.  213;  Allen®. 
Suydam,  22  Wend.  (N.  Y.)  321,  33 
Am.  Dec.  55');  Allen  v.  Merchants' 
Bank,  22  Wend.  (N.  Y.)215,  34  Am. 
Dec.  289. 

'  Simpson  v.  Waldby,  —  Mich.  — , 
80  N.  W.  Rep.  199. 

8  Reeves  v.  State  Bank,  8  Ohio  St. 
465.  See  this  case  discussed  and  ex- 
plained in  Bank  v.  Butler,  41  Ohio 
St.  519,  52  Am.  Rep.  94. 


347 


§614. 


THE   LAW    OF   AGENCY. 


[Book  IV. 


Jersey,*  Montana,'  Indiana,*  the  Supreme  Court  of  the  United 
States*  and  in  England."  It  is  based  upon  the  principle  that  the 
home  bank  having  undertaken  the  collection  of  the  paper  stands 
in  the  attitude  of  an  independent  contractor  who  is  left  at  lib- 
erty to  select  and  does  select  his  own  agents  and  correspondents, 
and  is,  therefore,  liable  for  their  default.* 


I  Titus  V.  Mechanics'  Nat.  Bank,  35 
N.  J.  L.  588. 

« Power  V.  First  Nat.  Bank,  6 
Mont.  251,  13  Pac.  Rep.  697.  This 
case  contains  a  very  full  resume  of 
the  cases. 

»  Abbott  V.  Smith,  4  Ind.  452;  Ty- 
son V.  State  Bank,  6  Blackf.  (Ind.) 
225. 

*  Exchange  Nat.  Bank  v.  Third 
Nat.  Bank,  112  U.  S.  276,  limiting 
Britton  v.  NiccoUs,  104  U.  S.  757; 
Hoover «.  Wise,  91  U.  S.  308.  At 
the  Circuits  see  Kent  v.  Dawson  Bank, 
13  Blatchf.  237;  Taber  v.  Perrot,  2 
Gall.  565;  Bank  of  Trinidad  v.  First 
Nat.  Bank.  4  Dill.  290;  Hyde  v.  Bank, 
7Biss.   156. 

»  Mackersy  v.  Ramsays,  9  Clark  & 
P.  818  (House  of  Lords);  Van  Wart 
«.  Woolley.  8  B.  &  C.  439. 

•  In  Exchange  National  Bank  v. 
Third  National  Bank,  112  U.  S.  at  p. 
289,  Mr.  Justice  Blatchford  says: 
"  The  distinction  between  the  liability 
of  one  who  contracts  to  do  a  thing, 
and  that  of  one  who  merely  receives 
a  delegation  of  authority  to  act  for 
another,  is  a  fundamental  one,  appli- 
cable to  the  present  case.  If  the 
agency  is  an  undertaking  to  do  the 
business,  the  original  principal  may 
look  to  the  immediate  contractor  with 
himself,  and  is  not  obliged  to  look  to 
inferior  or  distant  undercontractors 
or  subagents,  when  defaults  occur 
injurious  to  his  interest. 

Whether  a  draft  is  payable  in  the 
place  where  the  bank  receiving  it  for 
collection  is  situated,  or  in  another 
place,  the  holder  la  aware  that  the 


collection  must  be  made  by  a  com- 
petent agent.    In  either  case  there  is 
an  implied  contract  of  the  bank  that 
the  proper  measures  shall  be  used  to 
collect  the  draft,  and  a  right,  on  the 
part  of   its  owner,  to  presume  that 
proper  agents  will  be  employed,  he 
having  no  knowledge  of  the  agents. 
There  is,    therefore,   no    reason  for 
liability,  or  exemption  from  liability 
in  the  one  case  which  does  not  apply 
to  the  other.     And,  while  the  rule  at 
law  is  thus  general,   the  liability  of 
the  bank  may  be  varied  by  consent, 
or  the  bank  may  refuse  to  undertake 
the  collection.     It  may  agree  to  re- 
ceive the  paper  only  for  transmission 
to  its  correspondent,  and  thus  make 
a  different  contract,  and  become  re- 
sponsible only  for  good  faith  and  due 
discretion  in  the  choice  of  an  agent. 
If  this  is  not  done,  or  there  is  no  im- 
plied understanding  to  that  effect,  the 
same  responsibility  is  assumed  in  the 
undertaking  to  collect  foreign  paper 
and  in  that  to  collect  paper  payable 
at  home.    On  any  other  rule,  no  prin- 
cipal contractor  would  be  liable  for 
the  default  of  his  own  agent,  where 
from  the  nature  of    the  business,  it 
was    evident  he  must    employ  sub- 
agents.     The  distinction  recurs,  be- 
tween the   rule  of    merely  personal 
representative    agency,    and  the    re- 
sponsibility imposed  by  the  law  of 
commercial  contracts.      This   solves 
the    diflSculty    and    reconciles    the 
apparent  conflict  of  decision  in  many 
cases.     The  nature  of  the  contract  is 
the  test.     If  the  contract  be  only  for 
the  immediate  services  of  the  agent, 


348 


Ohap.  II.]  LIA-BILITY   OF   AOENT  TO   PRINCIPAL. 


§514. 


But  in  the  majority  of  the  States,  however,  a  different  rule 
prevails,  and  it  is  held  that  the  liability  of  the  home  bank,  in  the 
absence  of  instructions  or  an  agreement  to  the  contrary,  extends 
merely  to  the  selection  of  a  suitable  and  competent  agent  at  the 
place  of  payment  and  the  transmission  of  the  paper  to  such  agent 
with  proper  instructions.  This  rule  prevails  in  Massachusetts,' 
Connecticut,"  Maryland,'  Illinois,*  Wisconsin,*  Iowa,'  Missis- 
sippi,^ Missouri,*  Tennessee,"  Pennsylvania,"  and  Louisiana." 

This  rale  is  based  upon  the  theory  that  from  the  nature  of  the 
case  there  is  implied  authority,  upon  the  ground  of  necessity,  for 
the  appointment  of  a  subagent,  and  that  in  this,  as  in  other  cases, 
the  agent  fulfils  his  duty  when  he  uses  due  care  in  the  selection  of 
the  subagent." 


and  for  his  faithful  conduct  as  repre- 
senting his  principal,  the  responsibil- 
ity ceases  with  the  limits  of  the  per- 
sonal services  undertaken.  But 
where  the  contract  looks  mainly  to 
the  thing  to  be  done,  and  the  under- 
taking is  for  the  due  use  of  all  proper 
means  to  performance,  the  responsi- 
bility extends  to  all  necessary  and 
proper  means  to  accomplish  the 
object  by  whomsoever  used." 

1  Dorchester,  &c.  Bank  v.  New 
England  Bank,  1  Cush.  (Mass.)  177; 
Fabens  v.  Mercantile  Bank,  23  Pick. 
(Mass.)  330,  34  Am.  Dec.  59, 

«  Lawrence  v.  Stonington  Bank,  6 
Conn.  521;  East  Haddam  Bank  v. 
Bcovil,  12  Conn.  303. 

»  Jackson  v.  Union  Bank,  6  Har.  & 
J.  (Md.)  146;  Citizens'  Bank  v.  How- 
ell, 8  Md.  530. 

<  ^tna  Ins.  Co.  «.  Alton  City 
Bank,  25  111.  243. 

» Stacy  V.  Dane  County  Bank,  13 
Wis.  629. 

•  Guelich  v.  National  State  Bank, 
66  Iowa,  434,  41  Am.  Rep.  110,  9  N. 
W.  Rep.  328,  13  Rep.  237. 

1  Tiernan  v.  Commercial  Bank,  7 
How.  (Miss.)  648;  Agricultural  Bank 
e.  Commercial  Bank,  7  Sm.  &  M. 
(Miss.)  592;  Bowling  v.  Arthur,   84 


Miss.  41;  Third  National  Bank  t». 
Vicksburg  Bank,  61  Miss.  112,  48 
Am.  Rep.  78. 

'  Daly  V.  Butchers'  &  Drovers' 
Bank,  56  Mo.  94,  17  Am.  Rep.  668. 

»  Bank  of  Louisville  v.  First  Na- 
tional Bank,  8  Baxt.  (Tenn.)  101,  35 
Am.  Rep.  691. 

'"  Merchants'  National  Bank  v. 
Goodman,  109  Penn.  St.  423,  58  Am. 
Rep.  728;  Bank  v.  Earp,  4  Rawle 
(Pa.)  386;  Bellemire  v.  Bank  of  U.  S. 
4  Whart.  (Penn.)  105,  33  Am.  Dec.  46. 
Wingate  v.  Mechanics'  Bank,  10 
Penn.  St.  104. 

>'  Hyde  v.  Planters'  Bank,  17  La. 
560;  Baldwin  v.  Bank  of  Louisiana,  1 
La.  Ann,  13 

19  In  Quelich  e.  National  State 
Bank,  56  Iowa  434,  41  Am.  Rep.  110, 
Beck,  J.,  states  the  reasons  for  this 
view  as  follows:  "The  course  of 
business  of  defendant,  and  all  other 
banks,  is,  in  such  cases,  to  make  col- 
lections through  correspondents. 
They  do  not  undertake  themselves  to 
collect  the  bills,  but  to  intrust  them 
to  other  banks  at  the  place  payment 
is  to  be  made.  The  holder  of  the 
paper,  having  full  notice  of  the  course 
of  business,  must  be  held  to  assent 
thereto.    He  therefore  authorizes  the 


349 


§514. 


THE   LAW   OF   AGENCY. 


[Book  IV. 


A  bank,  however,  does  not  exercise  due  care  in  the  selection 
of  its  correspondent  when  it  sends  the  paper  for  collection  to  the 
debtor  himself,  as,  for  example,  to  the  very  bank  upon  which  the 
check  or  draft  is  drawn.  In  such  a  case  the  bank  is  liable  for  a 
loss  occasioned  by  the  failure  of  the  drawee.^ 


bank  with  whom  he  deals  to  do  the 
work  of  collection  through  another 
bank. 

We  will  now  inquire  as  to  the  rela- 
tions existing  between  the  bank 
charged  with  the  collection  of  the 
paper  and  the  holder  depositing  it 
with  the  first  bank.  The  bank  re- 
ceiving the  paper  becomes  an  agent 
of  the  depositor  with  authority  to 
employ  another  bank  to  collect  it. 
The  second  bank  becomes  the  sub- 
agent  of  the  customer  of  the  first,  for 
the  reason  that  the  customer  author- 
izes the  employment  of  such  an  agent 
lo  make  the  collection. 

The  paper  remains  the  property  of 
the  customer,  and  is  collected  for 
him;  the  party  employed,  with  his 
assent,  to  make  the  collection,  must 
therefore  be  regarded  as  his  agent. 

A  subagent  is  accountable  ordin- 
arily only  to  his  superior  agent  when 
employed  without  the  assent  or  direc- 
tion of  the  principal.  But  if  he  be 
employed  with  the  express  or  implied 
assent  of  the  principal,  the  superior 
agent  will  not  be  responsible  for  his 
acts.  There  is,  in  such  a  case,  a 
privity  between  the  subagent  and 
the  principal,  who  must  therefore 
seek  a  remedy  directly  against  the 
subagent  for  his  negligence  or  mis- 
conduct. Story  on  Agency,  §§  217, 
813.  These  familiar  rules  of  the  law 
applied  to  the  case  relieve  it  of  all 
doubt,  when  considered  in  the  light 
of  legal  principles." 

>  Drovers  National  Bank  v.  Anglo- 
American,  &c.  Co.  117  111.  100,  57 
Am.  Rep.  855,  23  Cent.  L.  Jour.  183; 
Merchants'  National  Bank  v.   Good- 


man, 109  Penn.  St.  422,  58  Am.  Rep. 
728,  2  Atl.  Rep.  687;  Farwell  v.  Cur- 
tis, 7  Biss.  C.  0.  162.  The  case  of 
Indig®,  National  City  Bank,  80  N.  Y. 
100,  as  interpreted  by  Judge  ScnoL- 
FiEiiD  in  Drovers'  National  Bank  v. 
Anglo-American,  &c.  Co.  supra  is  not 
in  conflict  with  the  statement  in  the 
text;  nor  as  interpreted  by  the  judge 
who  wrote  the  opinion  and  by  the 
court  which  pronounced  it,  in  the 
later  case  of  Briggs  v.  Central  National 
Bank,  89  N.  Y.  182,  43  Am.  Rep. 
285,  does  it  conflict. 

Said  the  courts  in  the  Pennsylvania 
and  Illinois  cases:     "We  think  the 
principle  may  be  stated  as  a  true  on© 
•    *    *     that  no  firm,  bank,  corpo- 
ration or  individual  can  be  deemed  a 
suitable  agent,   in  contemplation  of 
law,  to  enforce  in  behalf  of  another, 
a  claim  against  itself.     The  only  safe 
rule  is  to  hold  that  an  agent,  with 
whom  a  check  or  bill  is  deposited  for 
collection  must  transmit  it  to  a  suitable 
subagent,  to  demand  payment,  in  such 
manner  that  no  loss  can  happen  to 
any  party,  whether  he  be  depositor 
and    indorser,   or  the    indorsee  and 
holder.     »    *    *     We  interpret  the 
cases  to  which  we  have  referred  as 
establishing  the  rule  of  transmission 
to  a  suitable  correspondent  or  agent, 
to  mean    that    such    suitable    agent 
must,  from  the  nature  of  the  case,  be 
some  one  other  than  the  party  who  is 
to  make  the  payment.     By  no  other 
rule  can  the  rights  of  indorsers  be 
protected,  if  it  is  the  interest  of  the 
party  who  is  to  make  payment  to 
hinder,  postpone  or  defeat  payment. 
This  imposes  no  hardship  on  the  in- 


350 


Chap.  II.]  LIABILITY    OF    AGENT   TO    PKINOirAL. 


§515. 


§  515.  Same  Subject— LiabiHty  of  Attorneys.  The  liability 
of  an  attorney  for  the  neglect  or  default  of  other  attorneys  or 
agents  employed  by  him  in  the  collection  of  claims,  depends  upon 
the  nature  of  his  undertaking.  He  is,  of  course,  liable  for  the 
neglect  or  default  of  his  own  immediate  clerks  or  agents,  em- 
ployed by  him  to  assist  him  in  the  collection.  So  where  he  un- 
dertakes the  collection  of  a  claim  at  a  place  distant  from  that  in 
which  he  does  business,  his  liability  extends  to  the  neglect  or  de- 
fault of  another  attorney  or  agent  to  whom  he  transmits  the 
claim  for  collection,  and  is  not  limited  to  the  selection  of,  and 
transmission  to,  a  suitable  and  proper  agent.     In  this  respect  his 


stitutioQ  undertaking  to  transmit  for 
collection,  which  can  always  protect 
Hself  by  stipulating  that  special  in- 
structions by  the  depositor  shall  be 
given  which  will  save  the  collecting 
bank  from  all  risk  or  peril." 

Said  Rapallo,  J.,  in  Briggs  v. 
Central  National  Bank,  supra:  "In 
the  case  of  Indig  v.  National  City 
Bank,  80  N.  T.  100,  it  was  decided 
that  where  a  bank  receives  from  one 
of  its  customers,  for  collection,  a 
check  or  draft  drawn  upon  another 
bank  at  a  distant  place,  and  for  the 
purpose  of  collecting  the  paper,  sends 
it  by  mail  to  the  bank  upon  which  it 
is  drawn,  with  a  request  to  remit  the 
amount,  the  collecting  bank  by  so 
sending  the  paper  to  the  drawee  di- 
rectly, for  payment,  does  not  consti- 
tute the  drawee  its  agent  to  receive 
the  proceeds,  and  consequently  does 
not  become  guarantor  of  the  solvency 
of  the  drawee;  and  that  in  such  a 
case,  though  the  drawee  has  funds  of 
the  drawer  of  the  paper  and  charges 
it  to  his  account  as  paid,  but  fails  to 
pay  over  to  the  collecting  bank,  the 
latter  is  not  responsible  to  its  custom- 
ers for  the  amount,  unless  there  has 
been  some  negligence.  The  point  of 
the  decision  is  that  the  mere  act  of 
presenting  the  paper  for  payment  by 
mail,  instead  of  employing  a  messen- 
ger to  present  it,  does  not  constitute 


the  drawee  agent  of  the  sender  to 
receive  or  hold  the  proceeds."  The 
difficulty,  as  it  seems  to  the  author, 
is  that  Judge  Scholfield  misappre- 
hended the  actual  effect  of  the  Indig 
case.  In  that  case  the  collecting  bank 
sent  to  its  correspondent  bank  a  note 
made  by  one  of  the  latter's  deposit- 
ors and  payable  at  its  banking  house. 
A  note  so  payable  says  Rapallo,  .I.,m 
that  case,  "is  equivalent  to  a  check 
drawn  by  him  upon  that  bank,  except 
that  in  the  case  of  a  note,  the  failure 
to  present  for  payment  does  not  dis- 
charge the  maker,"  So  interpreted, 
it  will  be  seen  that  the  Illinois  and 
New  York  cases  are  not  in  conflict 
upon  the  question  of  liablity  where 
the  paying  bank  is  made  the  agent  to 
(collect.  The  conflict  arises  from  the 
fact  that  the  Illinois  and  Pennsyl- 
vania cases  hold  that  the  sending  of 
the  check  to  the  paying  bank  makes 
that  bank  the  agent  to  receive  and 
transmit  the  money,  while  the  New 
York  case,  as  interpreted  in  Briggs  v. 
Central  National  Bank,  holds,  as  will 
be  seen  from  the  quotation  r.bove, 
that  the  sending  of  the  check  ty  mail 
does  not  constitute  the  drawee  agent 
of  the  sender  to  receive  or  hold  the 
proceeds.  But  whatever  view  is  to 
be  taken  of  the  transaction,  the  result 
reached  in  Illinois  and  Pennsylvania 
seems,  to  the  author,  to  be  correct. 


351 


§515. 


THE   LAW   OF   AGENOT. 


[Book  lY. 


liability  differs  from  that  which,  as  has  been  seen,  is,  by  a  major- 
ity of  the  courts,  imposed  upon  banks  under  like  circumstances. 
He  may,  of  course,  in  such  a  case  limit  his  liability  by  express 
agreement,  but  in  the  absence  of  such  an  agreement,  an  attorney 
taking  a  claim  "  for  collection  "  is  looked  upon  as  an  independent 
contractor,  and  is  therefore  liable  for  the  default  of  his  corre- 
spondent.* 


» Cummins  v.  Heald,24  Kan.  600, 36 
Am.  Rep.  264;  "Walker  ij.  Stevens,  79 
111.  193;  Abbott  t>.  Smith,  4  Ind.  452; 
Lewis  V.  Peck,  10  Ala.  142;  Riddle  v. 
Poorman,  3  Penu.  224;  Cox  v.  Liv- 
ingston, 2  Watts  &  Serg.  (Penn.)  103, 
87  Am.  Dec.  486 ;  Krause  v.  Dorrance, 
10  Penn,  St.  462,  51  Am.  Dec,  496; 
Rhines  v.  Evans,  66  Penn.  St.  192,  5 
Am  Rep.  364;  Pollard  v.  Rowland,  2 
Blackf  (Ind.)  22;  Cummins  v.  Mc- 
Lain,  2  Pike  (Ark.)  402;  Wilkinson  v. 
Griswold,  12  Smedes  &  Marsh.  (Miss.) 
669  See  also  Bradstreet  v.  Everson, 
72  Penn.  St  124,  13  Am.  Rep.  665, 
and  Sanger  v.  Dun,  47  Wis.  615,  32 
Am.  Rep.  789,  cited  in  the  following 
section. 

In  Bradstreet  v.  Everson,  73 
Penn.  St.  124,  13  Am.  Rep.  665, 
Aqnew,  J.  said.  "  Recurring  to  the 
analogy  of  attorneys  at  law,  the  first 
point  to  be  considered  is  the  interpre- 
tation given  by  the  courts  to  the 
terms  of  a  receipt  for  collection." 
In  our  own  State,  we  have  several 
decisions  in  point.  In  Riddle  v. 
Hoffman's  Exr,  3  Penn.  224;  Riddle, 
an  attorney  in  Franklin  County,  gave 
a  receipt  in  these  words:  "Lodged 
in  my  hands  a  judgment  bill  granted 
by  Henry  H.  Morwitz  to  Henry  Hoff- 
man for  the  sum  of  $1,200,  due  with 
interest  since  the  15th  of  May,  1811, 
which  is  entered  up  in  Bedford 
county,  which  I  am  to  have  recov- 
ered if  it  can  be  accomplished." 
Riddle  sent  this  bill  to  his  brother,  a 
practicing  lawyer  in  Bedford.  The 
money  was  made  by  the  sheriff,  but 


by  the  neglect  of  the  Bedford  Riddle 
was  not  received  from  the  sheriff, 
who  became  insolvent,  and  the  money 
was  thus  lost.  Hoffman  sued  the 
Franklin  county  Riddle  on  his  receipt 
and  recovered.  On  a  writ  of  error  it 
was  contended  that  the  words  of  the 
receipt,  "  which  I  am  to  have  recov- 
ered if  it  can  be  accomplished,"  im- 
ported only  a  limited  undertaking  to 
have  it  collected  by  another,  and  not 
to  collect  it  himself.  But  this  court 
held  that  the  receipt  contained  an  ex- 
press and  positive  undertaking  for  the 
collection  of  the  money,  if  practi- 
cable, and  not  merely  for  the  employ- 
ment of  another  to  that  end;  and  that 
the  defendant  was  bound  by  every 
principle  of  moral  and  legal  obliga- 
tion to  make  good  the  collection  of 
the  judgment  by  the  application  of 
reasonable  diligence,  skill  and  atten- 
tion. 

The  next  case  is  Cox  v.  Livingston, 
a  W.  &  8.  103.  This  was  the  receipt : 
"  Received  of  Mr.  Thomas  Cox,  of 
Lancaster,  Pa.,  for  collection,  a  note 
drawn  in  his  favor  by  Mr.  Dubbs, 
calling  for  $497.65,  payable  three 
months  after  date."  The  note  was 
left  with  an  instruction  to  bring  suit. 
The  receipt  was  dated  August  30, 
1837,  and  Livingston  died  in  January 
following  without  having  brought 
suit.  Dubbs  became  insolvent.  It 
was  held  that  Livingston  was  liable 
for  the  collection,  though  only  two 
terms  intervened  between  the  receipt 
and  his  death. 

Krause  v.  Dorrance,  10  Barr,  463, 


852 


Chap.  II.]  LIABILITY   OF   AGENT   TO   PEINCIPAL. 


§516. 


§  516.  Same  Subject— Liability  of  Mercantile  or  Collection 
Agencies.  The  same  rules  which  have  been  applied  to  attorneys 
who  undertake  the  collection  of  claims,  apply  to  the  so-called 
commercial  or  collection  agencies,  through  which  a  large  portion 


was  assumpsit  against  two  attorneys 
for  money  collected  and  not  paid  by 
another  attorney  to  whom  they  sent 
the  note  for  collection.  The  liability 
of  the  original  attorneys  for  the  col- 
lection was  admitted,  but  the  point 
was  made  and  succeeded,  that  a  de- 
mand before  suit  was  necessary. 
Rogers,  J. ,  says  expressly  they  were 
liable  for  the  acts  of  the  agent  whom 
they  employed,  but  being  without 
fault  themselves,  a  demand  was  neces- 
sary before  a  resort  to  an  action. 

In  Rhines  v.  Evans,  16  P.  P.  Smith, 
192;  S.  C,  5  Am.  Rep.  365,  the 
receipt  was:  "Received  for  collec- 
tion of  A.  Rhines  one  note  on  Lukens 
&  Beeson.of  Rochester,  dated  October 
30,  1857,  for  $365."  The  liability  of 
Evans,  the  attorney,  was  conceded 
and  the  question  was  on  the  statute 
of  limitations,  and  it  was  held  the 
action  was  barred  by  the  lapse  of 
seven  years  and  five  months  from  the 
date  of  the  receipt. 

These  cases  show  the  understand- 
ing of  the  bench  and  bar  of  this  State 
upon  a  receipt  of  claims  for  collec- 
tion. It  imports  an  undertaking  by 
the  attorney  himself  to  collect,  and 
not  merely  that  he  receives  it  for 
transmission  to  another  for  collection, 
for  whose  negligence  he  is  not  to  be 
responsible.  He  is  therefore  liable 
by  the  very  terms  of  his  receipt  for 
the  negligence  of  the  distant  attorney, 
who  is  his  agent,  and  he  cannot  shift 
responsibility  from  himself  upon  his 
client.  There  is  no  hardship  in  this, 
for  it  is  in  his  power  to  limit  his  res- 
ponsibility by  the  terms  of  his 
receipt,  when  he  knows  he  must 
employ  another  to  make  the  collec- 
tion.   Bullitt  V.  Baird,  aupra. 


We  find  cases  in  other  states  hold- 
ing the  same  doctrine.  In  Lewis  & 
Wallace  v.  Peck  &  Clark,  10  Ala.  142, 
both  firms  were  attorneys.  The  de- 
fendants gave  their  receipt  to  the 
plaintiffs  for  certain  notes  for  collec- 
tion, and  after  collecting  the  money, 
transmitted  it  to  the  payees  in  the 
notes  instead  of  the  attorneys  who 
had  employed  them,  the  payees  hav- 
ing,  however,    indorsed    the    notes. 

Held,  that  Peck  &  Clark  were  lia- 
ble to  their  immediate  principals,  the 
plaintiffs,  there  being  no  evidence  that 
the  payees  had  given  them  notice  not 
to  pay  over  to  Lewis  &  Wallace,  the 
original  attorneys.  This  is  a  direct 
recognition  of  the  liability  of  the  col- 
lecting attorney  to  the  transmitting 
attorney.  The  case  of  Pollard  v. 
Rowland,  2  Blackf.  (Ind.)  23,  is  more 
directly  in  point.  Rowland  receivevl 
from  Pollard  claims  for  collection, 
and  sent  them  to  Stephen,  an  attor- 
ney in  another  county.  Stephen 
obtained  judgment,  and  collected  the 
money.  Held,  that  Rowland  was 
accountable  to  Pollard  for  the  acts  of 
Stephen  to  the  same  extent  that 
Stephen  was,  and  could  make  no 
defense  that  Stephen  could  not;  and 
that  Rowland  was  liable  to  Pollard 
for  the  money.  Cummins  v.  McLain 
etal.,  2  Pike  (Ark.)  402,  was  a  case 
nearly  similar  to  the  Pennsylvania 
case  of  Krause  v.  Dorrance,  supra. 
The  attorney  sent  the  claim  to  another 
attorney  at  a  distance,  and  was  held 
liable,  but  for  the  omission  of  the 
plaintiff  to  make  a  demand,  he  failed 
to  recover.  The  court  say  the  attor- 
ney is  liable  for  the  acts  of  the  attor- 
ney he  employs.  In  a  Mississippi 
case,  two  attorneys,   Wilkinson  and 


23 


353 


§  516.  THE   LAW   OF   AGENCY.  [Book  IV. 

of  the  collection  business  is  now  transacted.  In  a  leading  case* 
upon  this  subject  the  defendants  gave  the  plaintiffs  the  following 
receipt : 

"  J.  M.  Bradstreet  &  Son,  Improved  Mercantile  Agency,  Pitts- 
burg, June  2d,  1865. — Received  from  Messrs.  Everson,  Preston 
&  Co.  four  duplicate  acceptances,  for  collection,  against  Watt  C. 
Bradford,  Memphis,  Tennessee,  amounting  in  all  to  $1,726.37. 

"J.  M.  JBkadstreet  &  Son." 

Defendants  sent  the  claims  to  their  agent  in  Memphis,  who 
collected  the  money  but  failed  to  pay  over  the  proceeds.  The 
court  held  the  defendants  liable,  saying,  "  It  is  argued,  notwith- 
standing the  express  receipt  '  for '  collection,'  that  the  defendants 
did  not  undertake  for  themselves  to  collect,  but  only  to  remit  to 
a  proper  and  responsible  attorney,  and  made  themselves  liable 
only  for  diligence  in  correspondence,  and  giving  the  necessary 
information  to  the  plaintiffs ;  or  in  briefer  terms,  that  the  attor- 
ney  in  Memphis  was  not  their  agent  for  the  collection,  but  that 
of  the  plaintiffs  only.  The  current  of  decision,  however,  is 
otherwise  as  to  attorneys  at  law  sending  claims  to  correspondents 
for  collection,  and  the  reasons  for  applying  the  same  rule  to  col- 
lection agencies  are  even  stronger.  They  have  their  selected 
ao-ents  in  every  part  of  the  country.  From  the  nature  of  such 
ramified  institutions  we  must  conclude  that  the  public  impression 
will  be,  that  the  agency  invited  customers  on  the  very  ground  of 
its  facilities  for  making  distant  collections.  It  must  be  pre- 
sumed, from  its  business  connections  at  remote  points,  and  its 
knowledge  of  the  agents  chosen,  the  agency  intends  to  under- 
take the  performance  of  the  service  which  the  individual  cus- 
tomer is  unable  to  perform  for  himself.  There  is  good  reason, 
therefore,  to  hold  that  such  an  agency  is  liable  for  collections 
made  by  its  own  agents,  when  it  undertakes  the  collection  by  the 

Willison,  received  of  plaintiff  a  claim  held   liable  for  the    receipt    of   the 

for  collection,  and  brought  suit  and  money  by  Jennings.     Wilkinson    v. 

obtained  judgment.     They  dissolved  Griswold,  18  Smedes  &  Marsh,  669." 

partnership,  Wilkinson  retiring  from  i  Bradstreet  v.  Everson,  72  Penn. 

the    practice;     and    Willison    took  St.  124;  13  Am.  Rep.  665.     To  same 

another  partner,   Jennings,  who  re-  effect  see  Hoover  v.   Wise,  91  U.  S. 

ceived  the  money  from  the  sheriff.  308;  Weyerhauser  v.  Dun,  100  N.  Y. 

In  a  suit  against  Wilkinson  as  sur-  150,  2  N.  E.  Rep.  274. 
viving  partner  of  Willison,  he  was 

354 


Chap.  II.]  LIABILITY    OF    AGENT   TO    PKINCIPAL.  §  516. 

express  terms  of  the  receipt.  If  it  does  not  so  intend,  it  has  it 
in  its  power  to  limit  responsibility  by  the  terras  of  the  receipt." 
Limitations  of  the  kind  indicated  by  the  court  in  the  passage 
just  cited  are  valid.  Thus  in  an  action  '  brought  against  a  similar 
agency  it  appeared  that  the  defendants  had  given  and  the  plain- 
tiffs had  accepted  a  receipt  for  the  claira,  stating  that  it  was  to  be 
transmitted  to  an  attorney  by  mail  for  collection  or  adjustment, 
at  the  risk  and  on  the  account  of  the  plaintiffs.  Plaintiffs  had 
also  signed  a  memorandum  to  the  same  effect  upon  the  defend- 
ants' books.  It  was  contended  on  behalf  of  the  plaintiffs  not 
only  that  the  receipt  was  not  sufficient  in  terms  to  limit  the  de- 
fendant's liability  to  a  mere  transmitter  of  the  claim,  but  that 
even  if  it  would  bear  this  construction  it  would  permit  the  de- 
fendants to  take  advantage  of  their  own  wrong  and  was  void  as 
opposed  to  public  policy,  and  that  therefore  the  defendants  were 
liable  for  the  negligence  or  misconduct  of  the  attorney  whom 
they  employed  and  who  had  collected  the  money  and  appropri- 
ated it  to  his  own  use.  In  answer  to  this  contention  the  court 
said :  "  It  well  may  be  that  such  would  be  the  responsibility  of 
the  defendants,  were  it  not  for  the  restrictive  clause  in  the  re- 
ceipts. But  that  clause,  if  any  effect  is  given  to  it,  clearly  limits 
that  liability ;  for  it  provides  that  the  account  is  to  be  transmit- 
ted to  an  attorney  for  collection  at  the  risk  of  the  plaintiffs.  Such 
being  the  case,  we  think  the  defendants  are  not  liable  for  the  acts 
or  default  of  the  attorney  employed  by  them,  unless  in  the  selec- 
tion of  such  attorney  they  were  guilty  of  gross  negligence ;  for 
it  seems  to  us  it  was  competent  for  the  parties,  by  express  con- 
tract, to  limit  the  liability  which  the  law  would  otherwise  impose 
upon  the  defendants  for  the  acts  of  the  attorney  employed  by 
them  to  make  the  collection.  We  are  not  aware  of  any  principle 
of  law  or  public  policy  which  condemns  such  a  contract." 

But  where  the  agency  retains  the  right  to  control  the  means 
and  methods  of  collection,  it  will  be  held  liable  for  the  faithful 
performance  of  the  subagencies  it  employs,  in  the  absence  of 
8uch  a  stipulation  to  the  contrary.  Thus  where  the  claim  was 
taken  "  to  be  forwarded  by  us  for  collection  by  suit  or  otherwise, 
at  our  discretion,"  the  agency  was  held  liable  for  the  default  of 
its  subagent.' 

>  Sanger  v.  Dun,  47  Wis.  615;  33  *  Morgan  v.  Tener,  83  Penn.  St 
Am.  Rep.  789;  3  N.  W.  Rep.  388,  305. 

.355 


§  517.  THE   LAW   OF   AGENCY.  [Book  IV. 

§  517.  Same  Subject— Liability  of  Express  Companies,  The 
same  general  principles  are  applied  to  express  companies  which 
undertake  the  collection  of  demands.  Thus  where  the  plaintiff 
at  Brockport,  New  York,  delivered  to  the  American  Express  Co. 
a  note  made  by  a  resident  of  San  Francisco,  with  instructions  to 
take  it  to  San  Francisco,  demand  payment,  and,  if  not  paid,  to 
have  suit  instituted  at  once  for  its  collection,  (the  plaintiff  sup- 
posing the  company's  line  to  extend  to  San  Francisco,  although 
in  fact  it  did  not),  and  the  express  company  carried  the  note  to 
the  termination  of  its  line  and  there  delivered  it  to  another  com- 
pany, whose  line  extended  the  remainder  of  the  distance,  with  the 
instructions,  to  be  by  the  latter  company  carried  out,  it  was  held 
that  the  first  company  was  responsible  for  a  loss  occurring  from 
the  negligence  of  the  latter  company  in  making  the  collection.' 

So  where  an  express  company  having  undertaken  the  collec- 
tion of  a  bill,  delivered  it  to  a  notary  for  protest,  it  was  held 
that  the  company  was  responsible  for  a  loss  occasioned  by  the 
notary's  protesting  it  too  soon.' 

§  518.  Same  Subject— The  Measure  of  Damages.  The  meas- 
ure of  damages  in  an  action  against  an  agent  for  negligence  in 
collection  is  the  actual  loss  sustained.  The  negligence  being 
estsibVished,  iha,t  loas  prima  J^acie  is  the  amount  of  the  claim,* 
but  the  agent  may  show  that,  notwithstanding  his  negligence, 
the  principal  has  suffered  no  loss,  and  the  recovery  can  then  be 
for  nominal  damages  only.  Thus  he  may  show  in  reduction  of 
damages  that  if  he  had  used  the  greatest  diligence,  the  debt 
could  not  have  been  collected  ;  *  or  that  the  principal's  claim 
against  the  debtor  is  delayed  only  and  not  lost,'  or  that  he  is 
wholly  or  partially  protected  by  securities  which  he  holds,'  or 
that  though  the  principal's  claim  against  certain  of  the  parties  is 

>  Palmer  v.  Holland,  51  N.  Y.  416,  Washington  ©.  Triplett,  1  Pet.  (U.  S.) 

10  Am.  Rep.  616.  25;  First  National  Bank  v.   Fourth 

9  American  Express  Co.  v.  Haire,21  National  Bank,  77  N.  Y.  320,  33  Am. 

Ind.  4,  83  Am.  Dec.  334  Rep.  618. 

3  Allen  V.  Suydam,  20  Wend.  (N.  *  First  National   Bank    «.    Fourth 

Y.)  321,  32  Am.  Dec.    555;  Durnford  National  Bank,  supra. 
V.  Patterson, 7  Mart.  (La.)  460;  12  Am.  «  Van  Wart  v.  WooUey,  3  Barn.  & 

Dec.  514;  Miranda  v.  City  Bank,  6  Cress.  439. 
La.   740;  26  Am.  Dec.  493;  Bank  of         «  Borup  v.  Nininger,  5  Minn,  523. 

356 


Chap.  II.]  LIABILITY   OP   AGENT  TO   PEINOIPAL.  §  519. 

lost,  there  are  still  others  liable  who  are  amplj  responsible,  from 
whom  the  debt  can  be  collected.' 

§  519.  Same  Subject— Principal's  Right  of  Action  against 
Subagent.  Whether  the  principal  may  hold  the  subagent 
directly  responsible  is  a  question  upon  which  there  is  also  much 
conflict  of  authority.  The  question  may  present  itself  in  two 
forms  :  1.  Whether  the  principal  may  hold  the  subagent  directly 
liable  for  his  negligence,  and  2.  Whether  the  principal  may 
recover  from  the  subagent  the  proceeds  of  the  collection  then  in 
his  hands. 

I.  The  determination  of  first  form  must  depend  largely  upon 
the  view  which  shall  be  taken  of  the  general  relations  of  the 
parties  as  discussed  in  the  preceding  sections.  If  the  sub- 
agent  is  to  be  treated  as  the  agent  of  the  agent  only,  then  there 
is  no  privity  between  them  upon  which  such  an  action  can  be 
based  ;*  but  if  on  the  other  hand  the  subagent  is  to  be  treated  as 
the  agent  of  the  principal,  the  principal  may  proceed  against  him 
directly  for  his  default.'  This  conclusion  is  in  accordance  with 
the  general  principles  governing  the  appointment  of  subagents 
which  have  been  heretofore  stated. 

II.  The  determination  of  the  second  form  must  also  rest  upon 
the  same  general  principles,  but  the  decisions  of  the  courts  have 
not  been  harmonious,  nor  have  the  decisions  of  the  same  court 
always  been  in  harmony  upon  both  forms  of  the  question.  It  is 
therefore  difficult  to  extract  uniform  principles  from  them,  but 
the  following  may  be  said  to  be  supported  by  a  preponderance 
of  authority : — 

1.  That  where  by  special  arrangement  or  custom  of  dealing 
between  the  owner  of  the  paper  and  the  bank  or  the  agent  under- 
taking the  collection,  the  latter  at  once  places  the  amount  thereof 
to  the  credit  of  the  owner,  upon  which  he  thereupon  draws  or  is 
entitled  to  draw  as  cash,  this  works  a  transfer  of  the  title  to  the 
paper  in  such  a  way  as  to  prevent  the  owner  from  following  the 
paper  or  its  proceeds  into  the  hands  of  a  third  party  who  has 
received  the  paper  in  good  faith  and  due  course  of  business  from 
the  agent  for  collection.* 

>  First  National   Bank  •.   Fourth          *  Ayres  v.  Farmers'  and  Merchants' 

National  Bank,  supra.  Bank,  79  Mo.  421,  49  Am.  Rep.  235. 

2 See  an<6,  §  197.  In  this  case  the   plaintiff  deposited 

'See  ante,  §  197.  with  the  Mastin  Bank  for  collection 

357 


§519. 


THE   LAW  OF   AOENOT. 


[Book  IV. 


2.  That,  except  as  above,  the  bank  or  agent  actually  making 
the  collection  may  be  held  responsible  directly  to  the  true  owner, 
unless,  before  receiving  notice  of  the  owner's  claim,  it  has  paid 
over  the  proceeds  to  the  bank  or  agent  from  which  it  received 
the  paper,  or  unless  it  has  made  advances  or  given  credit  to  the 
bank  or  agent  from  which  it  received  the  paper  in  such  a  way  as 
to  make  it  a  bona  fide  holder  of  the  paper  for  value.'     Unless  it 


and  credit  on  his  account  a  check 
drawn  on  defendant  in  favor  of  a 
third  person.  Under  an  express  ar- 
rangement the  amount  of  the  check 
was  immediately  passed  to  the  credit 
of  the  plaintiff,  who  drew  upon  it  the 
same  day  The  Mastin  Bank  sent 
the  check  to  defendant  who  charged 
it  to  the  maker  and  credited  the 
Mastiu  Bank.  The  Mastin  Bank  in 
the  meantime  had  failed,  but  defend- 
ant did  not  know  it.  Plaintiff  then 
sued  defendant  to  recover  the  amount 
of  the  check,  but  was  held  not  enti- 
tled to  recover.  The  arrangement 
between  the  plaintiff  and  the  Mastin 
Bank  was  held  by  the  court  to  amount 
to  a  purchase  of  the  paper  by  the  lat- 
ter. 

«Thus  bank  A,  the  owner  of  a 
check  drawn  on  bank  D,  indorsed 
and  transmitted  it  for  collection  and 
credit  on  its  account  to  bank  B. 
Bank  B  did  not  however  give  bank 
A  credit  for  the  check,  but  entered  it 
on  its  collection  register  merely,  and 
indorsed  and  transmitted  it  for  col- 
lection to  bank  C,  with  directions  to 
credit  bank  B  with  the  proceeds. 
Bank  B  on  the  same  day  failed  in 
debt  to  bank  A.  Bank  C  collected 
the  check  and  credited  the  proceeds 
to  bank  B,  which  was  in  debt  to  bank 
C.  Before  the  collection  the  cashier 
of  bank  C  had  heard  of  bank  B's 
failure,  but  did  not  inform  bank  D, 
which  was  ignorant  of  it.  The 
United  States  bank  examiner  having 
taken  charge  of  tlie  affairs  of  bank 
B,  without  the  knowledge  of  bank  A, 


credited  bank  A  and  charged  bank  B 
with  the  amount  on  the  books  of 
bank  B.  Bank  A  sued  bank  C  to  re- 
cover the  amount  of  the  check. 
.  Upon  this  state  of  facts  it  was  held 
that  bank  C  was  the  agent  of  bank  B 
for  the  purposes  of  the  collection; 
that  the  form  of  the  indorsement 
from  bank  A  to  bank  B  was  sufficient 
to  apprise  bank  C  that  bank  B  was 
not  the  owner  of  the  check,  but  an 
agent  for  collection  merely;  that  the 
insolvency  of  bank  B,  of  which  bank 
C  had  notice,  was  sufficient  to  revoke 
the  authority  conferred  by  bank  A 
upon  bank  B,  to  mingle  the  proceeds 
with  the  general  funds  of  bank  B,  by 
entering  the  amount  to  the  credit  of 
bank  A,  even  if  it  did  not  revoke 
bank  B's  authority  to  collect 
altogether;  that  bank  A  was  therefor© 
entitled  to  recover  the  proceeds  from 
bank  C,  and  that  the  fact  that  bank 
C  had  credited  the  amount  on  its 
books  to  bank  B  did  not  defeat  the 
recovery.  "No  objection,"  said  the 
court,  "can  be  successfully  made  on 
the  ground  of  want  of  privity.  There 
is  some  discrepancy  in  the  decisions 
as  to  whether  the  collecting  aeent,  or 
the  subagent,  should  be  sued  by  the 
holder  of  paper  for  the  failure  of  the 
subagent  to  perform  some  duty,  or 
for  some  negligence  whereby  the 
debt  is  lost.  See  1  Dan.  Neg.  Inst 
§344  and  notes.  But  the  rule  scarcely 
admits  of  an  exception  that  where 
one  has  in  his  hands  money  which 
rightfully  belongs  to  another,  the  lat- 
ter   may  sue  for  and    recover    it." 


358 


Chap.  II.]  LIABILITY   OF   AGENT   TO   PRINCIPAL. 


§519. 


be  a  bona  fide  purchaser  of  it  for  value  or  for  advances  made  upon 
it  in  good  faith  without  notice  of  any  defect  in  the  title,  the  bank 
or  agent  actually  making  the  collection  acquires  no  better  title 
to  the  paper  or  its  proceeds  than  was  possessed  by  the  bank  or 
agent  from  whom  it  was  received.* 

3.  That  in  the  last  mentioned  case,  the  subagent  cannot  be 


First  National  Bank  of  Crown  Point 
».  First  National  Bank  of  Richmond, 
76  Ind.  561.  40  Am.  Rep.  261,  citing 
Hall  V.  Marston,  17  Mass.  574.  In 
Hyde  v.  First  Nat.  Bank.  7  Biss.  C. 
C.  156,  the  rule  laid  down  in  subdivi- 
sion 3  of  the  text  is  thought  to  be 
overruled  by  Hoover  v.  Wise,  91  U. 
S.  308,  but  in  First  National  Bank  of 
Chicago  ».  Reno  County  Bank,  3  Fed. 
Rep.  257,  Judge  McCrary  reaches 
the  opposite  conclusion  as  to  the 
effect  of  Hoover  v.  Wise,  and  an- 
nounces the  same  rule  as  is  laid  down 
in  Indiana,  saying,  *'  I  fully  approve 
the  doctrine  announced  by  the  Su- 
preme Court  of  Massachusetts  in  Hall 
».  Marston,  17  Mass.  574,  as  follows: 
*  Whenever  one  man  has  in  his  hands 
the  money  of  another  which  he  ought 
to  pay  over,  he  is  liable  in  this  action 
(assumpsit)  although  he  has  never 
seen  or  heard  of  the  party  who  has 
the  right.  When  the  fact  is  proved 
that  he  has  the  money,  if  he  cannot 
show  that  he  has  legal  or  equitable 
grounds  for  retaining  it,  the  law  cre- 
ates the  privity  and  the  promise.' 
This  doctrine  is  not  in  conflict  with 
the  decision  of  the  Supreme  Court  in 
Hoover  v.  Wise."  See  also  Wallis  v. 
Shelly,  30  Fed.  Rep.  747;  Elliott  v. 
Swartwout,  10  Pet. (U.S.)  137;  Gaines 
V.  Miller,  111  U.  S.  395. 

'  Dickerson  «.  Wason,  47  N.  Y. 
439,  7  Am.  Rep.  455;  McBride  v. 
Farmers'  Bank,  26  N.  Y.  450. 

In  New  York  an  antecedent  debt  is 
not  a  good  consideration.  "  The  de- 
cisions of  our  courts  have  been  uni- 
form from  the  time  Coddington  v. 


Bay  (20  Johns  637)  was  determined, 
that  before  the  holder  of  a  note  can 
acquire  a  better  title  to  it  than  the 
person  had  from  whom  he  received  it, 
he  must  pay  a  present  valuable  con- 
sideration therefor;  and  that  re- 
ceiving it  in  payment  of,  or  as  secur- 
ity for,  an  antecedent  debt,  is  not 
such  a  consideration.  Rosa  v.  Broth- 
erson,  10  Wend.  86;  Stalker  v.  Mc- 
Donald, 6  Hill  93;  Youngs  b.  Lee,  2 
Kern.  551."  Balcom,  J.,  in  McBride 
9.  Farmers'  Bank,  supra. 

The  contrary  doctrine  as  to  consid- 
eration prevails  in  Massachusetts. 
One  who  takes  a  negotiable  promis- 
sory note  before  maturity,  as  security 
for  a  pre-existing  debt,  is  by  the  law 
of  that  State,  a  holder  for  value. 
Culver  V.  Benedict,  13  Gray  (Mass.) 
7;  Wood  V.  Boylston  National  Bank, 
129  Mass.  358,  37  Am.  Rep.  366. 
Thus  the  plaintiff  who  was  the  owner 
of  a  negotiable  promissory  note  en- 
dorsed it  in  blank  and  delivered  it  to 
an  attorney  for  collection.  The  at- 
torney deposited  it  in  the  defendant 
bank,  without  his  own  indorsement, 
to  be  collected.  The  bank  collected 
the  money  and  not  knowing  that  the 
attorney  was  not  the  owner  applied 
it  upon  a  debt  which  the  attorney 
owed  the  bank.  The  attorney  be- 
came bankrupt  and  the  bank  settled 
with  his  assignee,  crediting  the  pro- 
ceeds of  the  note  and  receiving  but  a 
portion  of  its  claim  against  the  attor- 
ney. Afterwards  the  plaintiff  learned 
that  the  bank  had  collected  the  money, 
informed  it  of  his  claim,  and  upon 
the  bank's  refusal  to  pay  it  to  him, 


359 


§  520.  THE   LAW   OF   AGENCY.  [Book  lY. 

deemed  to  be  such  a  bona  fide  holder  where  the  paper  bears  upon 
its  face  evidence  that  the  bank  or  agent  from  which  it  was 
received  was  an  agent  for  collection  merely.' 

4.  That  the  bankruptcy  of  the  bank  or  agent  which  has  taken 
the  paper  for  collection  and  credit  when  collected,  before  it  has 
received  the  funds  from  the  subagent,  terminates  the  authority 
to  80  receive  the  proceeds  and  credit  them  to  the  account  of  the 
owner.* 

§  520.  Del  Credere  Agents.  How  liable  to  Principal.  When- 
ever an  agent,  in  consideration  of  additional  compensation, 
guarantees  to  his  principal  the  payment  of  the  debts  that  become 
due  through  his  agency,  he  is  said  to  act  under  a  del  credere 
commission. 

Whether  the  legal  effect  of  such  a  commission  is  to  make  the 
agent  primarily  liable  in  all  events  for  the  proceeds  of  the  goods 
as  for  goods  sold  to  him,  or  whether  he  is  a  mere  surety  for  the 
vendee  to  pay  for  the  goods  if  the  latter  does  not,  is  a  question 
upon  which  there  has  been  great  conflict  of  authority.  After 
much  vacillation,  the  doctrine  is  settled  in  the  English  courts 
that  he  is  not  liable  to  his  principal  in  the  first  instance,  but  is 
only  to  answer  for  the  solvency  of  the  vendee  and  to  pay  the 
money  if  the  vendee  does  not." 

But  the  prevailing  doctrine  in  the  United  States  seems  to  be  in 
accordance  with  the  more  stringent  rule,  that  he  is  absolutely 
liable  in  the  first  instance  for  the  payment  of  the  price  of 
the  goods  sold  by  him,  to  the  same  extent  and  in  the  same  man- 
ner as  if  he  were  himself  the  purchaser.*     His  liability  is  thus 

brought  suit,  but  he  was  held  not  en-  Peele  «.  Northcote,  7  Taunt.  558.  See 
titled  to  recover.  Wood  «.  Boylston  earlier  cases,  contra.  Grove  e.  Dubois, 
Nat.  Bank,  m-pra.  IT.  R.  113;  Mackenzie  t).  Scott,  6 
1  First  National  Bank  of  Crown  Bro.  P.  C.  280;  Houghton  v.  Mat- 
Point  "0.  First  National  Bank  of  thews,  3  Bos.  &  Pul.  489. 
Richmond,  76  Ind.  561,  40  Am.  Rep.  <  Lewis  v.  Brehme,  33  Md.  413,  3 
261;  City  Bank  B.  Weiss,  67  Tex.  333,  Am.  Rep.  190;  Wolfif  v.  Koppel,  3 
60  Am.  Rep.  29;  First  National  Denio  (N.  Y.)  368;  43  Am.  Dec.  751; 
Bank  v.  Bank  of  Monroe,  33  Fed.  Swan  «.  Nesmith,  7  Pick.  (Mass.) 
Rep.  408;  In  re  Armstrong,  33  Fed.  220,  19  Am.  Dec.  283;  Cartwright  ». 
Rep.  405.  Greene,  47  Barb.  (N.  Y.)  16;  Sher- 
s  See  cases  cited  in  preceding  note.  wood  «.  Stone.  14  N.  Y.  268;  Lever- 
» Hornby  b.  Lacy,  6  Maul  «fe  Sel.  ick  v.  Meigs,  1  Cow.  (N.  Y.)  645; 
166;  Morris  ».  Cleasby,  4  Maul.  &  Blakely  «.  Jacobson,  9  Bosw.  (N.  Y.) 
Sel.  566;  Couturier  t).  Hastie,  8  Ex.  40;  140. 

360 


Chap.  II.]  LIABILITY   OF   AGENT   TO    PKINOIPAL.  §  522. 

made  an  original  and  not  a  collateral  one,  and  his  undertaking  is 
not,  therefore,  a  promise  to  answer  for  tlie  debt  of  another  within 
the  contemplation  of  the  Statute  of  Frauds  and  void  if  not  in 
writing:.^ 

§  521.  When  Agents  liable  for  selling  to  irresponsible  Parties. 
It  is  the  duty  of  an  agent,  intrusted  with  goods  to  be  sold, 
to  sell  them,  in  the  absence  of  a  usage  or  of  authority  to  the 
contrary,  for  cash  only  ;' and  even  when  authorized  to  sell  upon 
credit,  he  is  bound  to  exercise  reasonable  care  and  prudence  in 
selling  only  to  responsible  purchasers.  For  a  loss  occurring  from 
his  failure  to  observe  his  duty  in  this  regard,  the  agent  is  liable.* 

So  if  under  the  agent's  contract  it  is  his  duty  to  sell  for  cash 
if  possible,  but  if  he  gives  credit  at  all,  to  do  so  only  to  those 
who  are  good  and  responsible,  and  to  take  no  paper  but  that 
which  is  good  and  collectible,  he  will  be  liable  if  he  negligently 
takes  the  notes  of  purchasers  who  are  not  responsible.* 

In  such  a  case,  however,  if  the  principal  would  take  advantao-e 
of  the  agent's  negligence  or  disobedience,  he  must  act  within 
a  reasonable  time,  and  if  he  does  not,  he  cannot  afterwards 
complain.* 

lY. 

TO    ACCOUNT   FOK   MONEY    AND   PROPERTY. 

§  522.  In  general.  It  may  be  stated  as  a  general  rule  that  the 
agent  is  bound  to  account  to  his  principal  for  all  money  and 
property  which  may  come  into  his  hands  during,  and  by  virtue 
of,  the  agency.*     This  rule  embraces  not  only  such  money  and 

Contra,   Thompson  v.   Perkins,    3  pal  who  had  for  two  years  retained 

Mason  (U.  8.  C.  C.)  232.  notes  taken  by  the  agent  could  not 

'  Wolff  V.  Koppel,  5  Hill  (N.  Y.)  complain  that  he  had  sold  to  irre- 

468;  Swan  v.  Nesmith,  supra;  Sher-  sponsible  parties, 

wood    V.    Stone,    supra;    Bradley  v.  'Baldwin    v.   Potter,    46  Vt.   403; 

Richardson,  23  Vt.  720.  Taul  v.    Edmondson,   87  Tex.    556; 

2 See  OTit^,  §  353.  Bedell*.  Janney,  4  Gilm.   (111.)  193; 

8Tate  V.  Marco,  —  S.  C.  —  4  S.  E.  Armstrong  v.  Smith,  3  Blackf.  (Ind.) 

Rep.  71.     See  ante,  §  474,  note  4.  251 ;  Heddens  v.  Younglove,  46  Ind. 

*  Clark  V.  Roberts,   26  Mich.  506.  212;  Jett  ».  Hempstead,  25  Ark.  463; 

See  ante,  §  474,  note  4.  Whitehead    v.    Wells,    29   Ark.    99; 

5  Piano    Mnfg  Co.    v.    Buxton,   36  Haas  p.  Damon,  9  Iowa  589;  Robson 

Minn.  203,  30  N.   W.  Rep.  668.    In  v.  Sanders,  25  S.  C.  116. 
this  case  it  was  held  that  the  princi- 

361 


§  523.  THE    LAW    OF    AGENCY.  [Book    lY. 

property  as  maybe  received  directly  from  the  principal,  but  also 
that  which  comes  into  the  agent's  hands  as  the  results  of  his 
agency.  As  has  been  seen  in  a  previous  section,'  to  the  principal 
belong  all  profits  and  advantages  made  by  the  agent,  beyond 
lawful  compensation,  whether  such  profit  or  advantage  be  the 
fruit  of  the  performance  or  the  violation  of  the  agent's  duty,  or 
whether  they  are  the  result  of  transactions  within  or  beyond 
the  scope  of  his  authority,  provided  the  acts  from  which  they 
accrue  were  assumed  to  be  done  in  the  behalf  and  for  the  benefit 
of  the  principal. 

§  523.  Account  only  to  Principal— Joint  Principal.  As  a 
rule,  the  agent  is  bound  to  acpount  to  his  principal  only,*  and 
where  there  are  several  common  principals  he  will  not  be  held  to 
account  to  each  separately.' 

§  524:.  Subagents— Account  to  whom.  The  principles  gov- 
erning in  this  case  have  already  been  referred  to  in  preceding 
sections.  "Wherever  the  appointment  of  the  subagent  is  by  the 
express  or  implied  consent  of  the  principal,  such  a  privity 
exists  between  them  as  makes  the  subagent  liable  directly  to  the 
principal*  Where,  however,  the  subagent  is  to  be  regarded  as 
the  a^ent  only  of  one  who  stood  in  the  relation  of  independent 
contractor  to  the  principal,  there,  as  has  been  said,  there  is  ordi- 
narily no  privity  by  virtue  of  which  the  subagent  can  be  held 
accountable  to  the  principal.*  Yet  even  in  this  case,  as  has  also 
been  seen,  where  funds  of  the  principal  come  into  the  hands  of 
a  subagent  or  other  third  person  who  has  no  duty  in  respect  to 
them  but  to  pay  them  over  to  the  person  to  whom  they  belong, 
the  principal,  by  timely  information  as  to  his  claim,  may  recover 
them  directly  from  such  subagent  or  other  third  party.* 

S  525.  Agent  may  not  dispute  his  Principal's  Title.  It  is  a 
general  principle  in  the  law  of  agency  that  the  agent  may  not 
dispute  his  principal's  title.'     Having  assumed  the  performance 

^Ante,  %%  469-472.  'Ante,  %  197.     Guelich  v.  National 

•  Attorney-General©.   Chesterfield,       State  Bank,  s«pra. 
ISBeav.  596.  'Ante,  %  519. 

8  Trustees,  &c.  v.   Dupuy,   81   La.  t  Collins  b.  Tillou,  26  Conn.  368,  68 

Ann.  305.  ^^-  ^^^-  "^^I    Holbrook  v.  Wight, 

*  Ante,  %  191.  Guelich  v.  National  24  Wend.  (N.  Y.)  169,  35  Am.  Dec. 
State  Bank,  56  Iowa  434,  41  Am.  607;  Marvin  5.  Ell  wood,  11  Paige  (N. 
Rep.  110.  Y.)  365;  Roberts  v.  Ogilby,  9  Price 

362 


Chap.  II.]  LIABILITY    OF    AGENT   TO    PKINCIPAL.  §  520. 

of  the  agency  by  virtue  of  which  he  has  received  the  property  or 
money  of  his  principal,  he  will  not  be  permitted,  when  called 
upon  by  his  principal  to  account  for  the  property  or  money  so 
received,  to  deny  his  principal's  title  to  it.  This  general  princi- 
ple, however,  is  subject  to  certain  exceptions  as  well  settled  as  the 
principle  itself.  It  is  always  competent  for  the  agent  to  show  in 
his  own  defense  that  he  has  been  divested  of  the  property  by  a 
title  paramount  to  that  of  his  principal.'  He  may  also  show  that 
since  the  delivery  to  him  the  title  of  his  principal  has  been  ter- 
minated •  or  that  the  principal  has  transferred  his  interest  or 
title  to  another  under  whom  the  agent  claims.' 

§  526.  May  not  allege  Illegality  of  Transaction  to  defeat 
Principal's  Claim.  An  agent  who  has  received  money  from,  or 
in  behalf  of,  his  principal,  can  not  defeat  an  action  brought  by 
the  principal  to  recover  it,  upon  the  ground  that  the  contract 
under  which  the  money  was  paid,  or  the  transaction  from  which 
it  was  realized,  or  the  purpose  to  which  it  was  to  be  devoted,  was 
illegal.* 

Thus  a  collector  of  taxes  cannot  deny  the  right  of  his  principal  to 
receive  them  on  the  ground  that  they  were  illegally  levied  ; '  an 
agent  who  in  unlawful  speculations  has  received  money  belong- 
ing to  his  principal  can  not  refuse,  on  that  ground,  to  pay  it  to 
him  ;  •  nor  can  an  agent  who  has  received  money  from  his  prin- 
cipal to  be  employed  for  an  unlawful  purpose,  but  who  has  not 

269;  Kieran  v.  Sandars,  6  Ad.  &  El.  Kiewert  v.  Rindskopf,  46  "Wis.  481, 

515.  32  Am.  Rep.  731;  Brooks  o.   Martin, 

'Western    Transportation    Co.    v.  2  Wall.  (U.  S.)  70;  Gilliam©.   Brown, 

Barber,  56  N.  Y.  552;  Biddle  v.  Bond,  43  Miss.  641 ;  Reed  v.  Dougan,  54  Ind. 

6  Best  &  Smith  224;  Bliven  v.  Hud-  307;  Baldwin©.   Potter,  46  Vt.  402; 

son  River  R.  R.  Co.,  36  N.  T.  406;  First  National  Bank  v.  Leppel,  9  Col. 

Doty  V.  Hawkins,  6  N.   H.  247,   25  594;  Souhegan  Bank  v.  Wallace,  61 

Am.  Dec.  459;  Burton  v.  Wilkinson,  N.  H.  24. 

18  Vt.  186.  See    also  DeLeon  v.   Trevino,   49 

2  Marvin  t>.  Ellwood,  11  Paige  (N.  Tex.  88,  30  Am.  Rep.  101,  with  crit- 
Y.)  365.  icisms  in  the  note. 

3  Duncan  v.  Spear,  11  Wend.    (K  See  also  the  cases  next  cited. 

Y.)  56;    Harker  v.   Dement,   9   Gill  8 Placer  County©.  Astin,  8  Cal.  303; 

(Md.)  7,  52  Am.  Dec,  670;  Snodgrass  Clark  v.  Moody,  17  Mass.  145;  Ham- 

V.  Butlei,  54  Miss.  45.  mond  v.  Christie,  5  Robt.  (N.  Y.)  160; 

«Snell©.  Pells,  113  111.  145;  Chinn  Galbaith  v.   Gaines,   10  Lea.  (Teun.) 

V.  Chinn,  32  La.  Ann.  599;  Murray  v.  568. 

Vanderbilt,  39  Barb.  (N.  Y.)  140;  •  Norton  c.  Blinn,  39  Ohio  St.  145. 
Daniels    v.     Barney,    22    Ind.    207; 

363 


§  527.  THE   LAW   OF    AGENCY.  [Book  lY. 

BO  employed  it,  refuse  to  return  the  money  to  his  principal  be- 
cause of  the  illegality  of  the  purpose  contemplated.* 

§  527.  When  may  maintain  Interpleader.  An  agent  being 
bound  to  recognize  and  respect  his  principal's  title  can  not,  in 
general,  compel  his  principal  to  interplead  with  a  stranger  who 
claims,  by  a  paramount  and  adverse  title,  the  property  or  funds 
intrusted  to  the  agent  by  the  principal.*  Where,  however,  the 
third  person  claims  under  a  title  derived  from  the  principal  and 
created  by  the  latter's  own  act  subsequently  to  the  time  the  agent 
was  intrusted  with  the  possession — as  through  an  assignment. 
Bale,  mortgage  or  lien  made  or  given  by  the  principal — the  agent 
may  compel  the  parties  to  interplead.* 

§  528.  Agent's  Duty  to  keep  correct  Accounts.  As  a  neces- 
flary  consequence  of  the  agent's  duty  to  account,  it  is  his  duty  to 
keep  and  preserve  true  and  correct  accounts  and  statements  of 
the  business  with  which  he  is  intrusted,  together  with  all  such 
receipts,  vouchers  and  evidences  of  dealing  as  may  be  necessary 
to  fully  and  fairly  disclose  the  details  of  the  transaction  and  pro- 
tect the  principal  from  future  liability.* 

Technical  nicety  of  bookkeeping  is  not,  of  course,  in  general 
to  be  expected.  What  is  a  reasonable  fulfillment  of  the  agent's 
duty  in  this  case  as  in  others,  depends  upon  the  particular  cir- 
cumstances requiring  care  and  diligence.' 

So  while  it  is  thus  the  agent's  duty  to  keep  correct  accounts 
yet  if  the  principal  himself  has  by  his  own  interference  created, 
or  so  contributed  to,  such  confusion  as  to  render  an  absolutely 

iKiewert  e.  Rindskopf,  supra.  mond,  6  Sim.  10;  "Wright  v.  Ward,  4 

*Crawshay  c.  Thornton,  2  My.  &  Russ.    215;    Crawford  v.   Fisher,    1 

Cr.  1;  Smith  c.  Hammond,  6  Sim.  10;  Hare.  436;  Tanner  t>.  European  Bank, 

Atkinson  «.    Manks.  1  Cow.  (N.  Y.)  L.  R.  1  Exch.  261. 

691 ;  United  States  Trust  Co.  ».  Wiley,  «  Haas    v.    Damon,    9    Iowa    589; 

41  Barb.  (N.  Y.)  477;  Lund  v.  Sea-  Clark  v.  Moody,  17  Mass.  145;  Ker- 
man's  Bank,  37  Id.  139;  Vosbuigh  foot  c.  Hyman,  53  111.512;  Matthews 
«  Huntington,  15  Abb.  (N.  Y.)  Pr.  v.  Wilson,  27  Mo.  155:  Dunwidie  ■». 
254;  Bank  v.  Bininger,  26  N.  J.  Eq.  Kerley,  6  J.  J.  Marsh.  (Ky.)  501; 
345;  Tyus  v.  Rust,  37  Ga.  574,  95  Am.  Schedda  v.  Sawyer,  4  McLean  (U.  S. 
Dec.  365;  Hatfield  ».  McWhorter,  40  C.  C.)  181;  Bidder  «.  Whitlock,  13 
Ga.  269;  Crane  c.  Burntrager,  1  Ind.  How.  (N.  Y.)  Pr.  208;  Chinn  c. 
165.  Chinn,  23  La.  Ann.  599. 

•Gibson  v.  Goldtliwaite,  7  Ala.  281,  s Makepeace  v.  Rogers,  34  L.  J.  Ch. 

42  Am.   Dec.    593;    Smith  v.   Ham-      367. 

364 


Chap.  II.]  LIABILITY    OF    AGENT   TO    PKINCIPAL.  §  530. 

eatisfactory  accounting  impossible,  the  agent  ought  not  to  be  held 
to  the  most  rigid  rule.' 

§  529.  Duty  to  keep  Principal's  Property  and  Fionds  separate 
fromhisown— Liability  for  Commingling,  It  is  the  duty  of  the 
agent  to  keep  the  property  and  funds  of  his  principal  separate 
from  his  own.  If,  without  necessity,  he  has  so  commingled  the 
goods  of  his  principal  with  his  own  that  he  cannot  discriminate 
between  the  two,  the  whole  mass  so  undistinguishable  must  be 
held  to  belong  to  the  principal.*  So  if  he  mingles  the  funds  of 
his  principal  with  his  own  and  the  whole  is  lost,  ihe  loss  must 
fall  upon  the  agent.' 

This  rule  is  of  frequent  application  in  cases  where  the  agent 
has  deposited  money  of  his  principal  in  a  bank.  In  case  it  be- 
comes necessary  to  make  such  a  deposit,  the  agent  will  escape 
personal  liability  if  he  deposits  it  in  the  name  of  his  principal  in 
a  bank  of  good  credit,  or  if  he  so  distinguishes  it  on  the  books  of 
the  bank  as  to  indicate  in  some  way  that  it  is  the  money  of  bis 
principal.*  If  on  the  contrary  he  deposits  it  in  his  own  name, 
or  with  his  own  funds,  he  will,  in  case  of  a  failure  of  the  bank, 
be  liable  to  the  principal  for  his  money.* 

This  rule  was  carried  to  the  extent  in  a  recent  case  to  hold 
that  an  attorney  who  deposits  his  client's  money  in  a  solvent 
bank  in  his  own  name,  though  in  a  separate  account,  but  :vith  no 
indication  of  the  trust,  is  liable  for  a  loss  occasioned  by  the  sub- 
sequent failure  of  the  bank,  notwithstanding  he  ivas  prevented 
from  transmitting  the  money  by  garnishment  proceedings  against 
him.* 

§  530.  When  Agent  should  account.  Where  at  the  creation 
of  the  agency  the  time  of  accounting  is  expressly  agreed    upon, 

'Robbins®.  Robbins,  —  N.  J.  Eq.  •Williams  v.   Williams,    55    Wis. 

—  8  Atl.  Rep.  264.  300.  43  Am.  Rep.  708;  Norris  v.  Hero, 

«Hart«.  Ten  Eyck,   2  Johns.  (N.  23  La.   Ann.   605;  Masoa  v.  WLitt- 

Y.)  Ch.   63;  Edwards  ©.Bailments,  home,  3  Cold.  (Tenn.)  242;  Jenkins  ti. 

§  271.  Walter,  8  Gill  &  J.  (Md.)  218,  29  Am. 

8  Bartlett  t).  Hamilton,  46  Me.  435 ;  Dec.    539;  State  v.    Greensdale,    106 

Cartmell  v.  Allard,  7  Bush.  (Ky.)  483;  Ind.  364,  55  Am.  Rep.   753;  Naltner 

Graver's  Appeal,    50   Penn.    St.  189,  v.  Dolan,  103  Ind.  500,    58  Am.  Rep. 

and  cases  cited  in  following  notes.  61;  Cartmell  v.   Allard,  7  Bush  (Ky.) 

*  Norwood  V.  Harness,  98  Ind.  134,  482. 

49  Am.  Rep.  739;  Slate  ».  Greensdale,  •  Naltner  e.  Dolan,  108  Ind.  500,  58 

106  Ind.  364,  55  Am.  Rep.  753.  Am.  Rep.  61. 

365 


g  530.  THE    LAW    OF    AGENCY.  [Book  lY. 

or  where,  from  tlie  circumstances  of  the  case,  an  agreement  to  ac- 
count at  a  particular  time  is  to  be  implied,  such  agreement  will 
of  course  govern.  In  the  absence  of  such  an  express  or  implied 
agreement,  the  time  when  an  accounting  should  be  made  will 
depend  largely  upon  the  facts  of  each  case.  In  general  terms, 
however,  it  may  be  said  that  an  agent  is  ordinarily  bound  to 
account  upon  demand,  and  in  all  events  within  a  reasonable 
time.* 

It  is  the  duty  of  an  agent  who  has  received  goods  to  sell  for 
his  principal,  to  account  for  the  proceeds  within  a  reasonable 
time,  and  without  demand  in  cases  where  a  demand  would  be 
impracticable  or  extremely  inconvenient,]  so  that  factors 
abroad  who  have  received  goods  to  sell,  without  special  in- 
structions as  to  the  mode  of  remittance,  are  held  according  to  the 
course  of  business,  to  render  an  account  of  their  sales  or  pay 
over  the  proceeds  thereof  within  a  reasonable  time,  and  if 
they  neglect  to  do  this,  such  negligence  is  a  breach  of  contract 
and  subjects  them  to  an  action.  So,  likewise,  after  the  lapse  of 
a  reasonable  time  from  the  receipt  of  goods  and  a  neglect  to  ac- 
count for  them,  the  fair  presumption  is  that  the  goods  have  been 
sold  and  the  money  received  for  them,  and  an  action  for  money 
had  and  received  may  be  maintained.* 

It  is  the  duty  of  an  agent  who  has  collected  money  for  his 
principal  to  give  him  notice  thereof  within  a  reasonable  time  after 
its  receipt.'  This  affords  the  principal  opportunity  to  give  such 
directions  in  regard  to  its  transmission  as  he  may  desire.  Such 
direction?^  are,  indeed,  usually  given  at  the  time  of  the  employ- 
ment of  the  agent,  and  whenever  they  are  given,  it  is  the  duty 
of  the  agent,  as  has  been  seen,  to  observe  them. 

Where  no  such  instructions  are  given,  it  has  been  said  that 
good  faith  on  the  part  of  the  agent  requires  that  he  should,  after 
deducting  his  commission,  remit  the  money  to  his  principal  by 
some  safe  and  appropriate  means  within  a  reasonable  time  ;*  but 

'  Leake  v.  Sutherland,  25  Ark.  219.  •  Jett  v.  Hempstead,  25  Ark.   463; 

2  Eaton ».  Welton,    33  N.   H.  353;  Whitehead   v.    Wells,    29    Ark.    99; 

Clark  V.  Moody,  17  Mass.  145;  Haas  Dodge  v.  Perkins,  supra;  Williams  e. 

V.    Damon,   9  Iowa.   589;   Torrey  v.  Storrs.  6  Johns.  (N.  Y.)   Ch.  353,  10 

Bryant,  16  Pick.  (Mass.)  528;  Langley  Am.  Dec.  340. 

«.    Sturtevant,   7  Pick.    (Mass.)  314;  «  Bedell  e.  Janney,  9  111.    (4  Gilm.) 

Cockhill  V.  Kirkpatrick,  9  Mo.  607;  193;  Lillie  v.    Hoyt.    5   Hill  (N.  Y.) 

Dodge  V.  Perkins,  9  Pick.  (Mass.)  363.  395,  40  Am.  Dec.  300. 

366 


Cliap.  II.]  LIABILITY    OF    AGENT   TO    PRINCIPAL. 


§531. 


where  he  acts  for  a  foreign  principal,  he  is  not  bound  to  take  the 
risk  of  the  remittance  by  methods  of  his  own  selection,  but  hav- 
ing advised  the  principal  of  the  collection,  the  agent  may  await 
the  principal's  directions  as  to  the  manner  in  which  the  remit- 
tance shall  be  made.* 

§  531.  Necessity  for  Demand  before  Action.  No  action  can, 
ordinarily,  be  maintained  against  an  agent  for  money  received  by 
him  for  his  principal  until  after  a  demand  has  been  made  upon 
him  for  its  payment,  with  which  he  has  refused  or  neglected  to 
comply.*  Such  a  demand  and  refusal  or  neglect  to  pay  are  essen- 
tial averments  in  the  declaration  or  complaint,  without  which 
the  action  cannot  ordinarily  be  sustained.' 

As  a  general  rule  in  such  cases,  it  may  be  presumed,  as  it  has 
been  said,  that  payment  has  been  delayed  by  reason  of  the  want 
of  safe  and  convenient  means  of  transmission  or  of  some  other 
good  and  sufficient  cause,  and  that  the  recipient  of  the  money, 
still  considering  himself  entitled  to  no  more  than  enough  to  rea- 
sonably compensate  him  for  his  services  in  collecting,  will  pay  it 
over  on  demand.*  This  rule,  however,  presupposes  that  the  agent 
has  duly  performed  his  duty  of  notifying  the  principal  of  the 
receipt  of  the  money.' 


*  Ferris  v.  Paris,  10  John.  (N.  T.) 
285,  286;  Lyle  v.  Murray,  4  Sandf. 
(N.  Y.)  590. 

2  Armstrong  ».  Smith,  3  Blackf. 
(lad.)  251;  Judah  «.  Dyott,  Id.  324, 
25  Am.  Dec.  112;  English  v.  Devarro, 
5  Id.  588;  Hannum  v.  Curtis,  13  Ind. 
206;  Jones  v.  Gregg,  17  Ind.  84; 
Black  V.  Hersch,  18  Ind.  342,  81  Am. 
Dec.  362;  Catterlin  v.  Somerville,  22 
Ind.  482;  Bougheru.  Scobey,  23  Ind. 
583;  Nutzenholster  v.  State,  37  Ind. 
457;  Heddens  v.  Youuglove,  46  Ind. 
212;  Cummins  v.  McLain,  2  Ark.  412; 
Sevier  v.  HoUiday,  2  Ark.  512; 
Palmer  v.  Ashley,  3  Ark.  75;  Taylor 
V.  Spears,  6  Ark,  381,  44  Am.  Dec. 
519;  Warner  v.  Bridges,  Id.  385; 
Roberts  v.  Armstrong,  1  Bush  (Ky.) 
263,  89  Am.  Dec.  624;  "State  v.  Sims, 
76  Ind.  329;  Baird  v.  Walker,  12 
Barb.  (N.  Y.)298,  301;  Colvin  v.  Hol- 


brook,  2  N.  Y.  130;  Williams  v. 
Storrs,  6  Johns.  (N.  Y.)  Ch.  353,  10 
Am.  Dec.  340;  Haas  v.  Damon,  9 
Iowa,  589;  Burton  v.  Collin,  3  Mo. 
315;  Waring  v.  Richardson,  11  Ired. 
(N.  C.)  L.  77;Cockrill?).  Kirkpatrick, 
9  Mo.  688;  Pierse  v.  Thornton,  44  Ind. 
235;  Terrell  v.  Butterfield,  92  Ind.  1; 
Claypool  V.  Gish,  —  Ind.  — ,  9  N.  E. 
Rep.  382.  But  see  contra,  Lillie  v. 
Hoyt.  5  Hill  (N.  Y.)  895,  40  Am. 
Dec.  360. 

9  Claypool  V,  Gish,  supra.  This 
averment  is  so  essential  that  a  motion 
to  arrest  will  be  sustained  on  account 
of  its  absence.  Pierce  v.  Thornton, 
supra;  Eberhart  v.  Reister,  96  Ind. 
478. 

*  Bedell  v.  Janney,  9  111.  193. 

»  Jett  B.  Hempstead,  25  Ark.  463; 
Haas  V.  Damon,  9  Iowa  589;  Ferris 
V.    Paris,    10    Johns.    (N.    Y.)    285; 


367 


ft  532.  THE    LAW    OF    AGENCY.  [Book  lY. 

But  where  he  has  not  given  such  notice,  and  so  long  a  time 
has  elapsed  since  the  collection  of  the  money  as  to  rebut  the  pre- 
sumption above  referred  to,  he  may  well  be  considered  as  having 
appropriated  it  to  his  own  use,  and  then  neither  law  nor  reason 
requires  that  before  he  can  be  sued  for  his  non-feasance,  he  should 
be  requested  to  do  what  his  conduct  sufficiently  indicates  his 
determination  not  to  do/ 

This  rule  is  also  subject  to  the  exception  that  no  demand  is 
necessary  where  it  would  be  impracticable  or  extremely  incon- 
venient, as  in  the  case  above  referred  to,  of  a  factor  resident 
abroad.'  So,  of  course,  no  demand  is  necessary  where  the  law 
makes  it  the  duty  of  the  agent  to  -account  without  a  demand.' 

So  no  demand  is  required  where  the  agency  is  denied,  or  a 
claim  is  set  up  exceeding  the  amount  collected,  or  the  agent's 
responsibility  is  disputed.* 

Although  the  death  of  the  principal,  as  has  been  seen,  ordi- 
narily terminates  the  relation,  yet  if  after  his  death  the  agent 
collects  money  and  converts  it  to  his  own  use,  the  personal  rep- 
resentative of  the  principal  may  recover  it.'  The  mere  fact  that 
the  agent  has  once  tendered  the  money  will  not  relieve  him  if, 
upon  a  subsequent  proper  demand,  he  refuses  or  neglects  to  pay 
it  over.' 

§  532.  When  Agent  liable  for  Interest.  An  agent  may  be- 
come liable  to  his  principal  for  interest  upon  moneys  in  his 
hands  by  virtue  of  an  express  or  implied  promise  to  pay  such 
interest.  But  he  will  also  be  chargeable  with  interest  upon  all 
moneys  in  his  possession  which  he  has  neglected  or  refused  to 
pay  over,  or  to  apply  to  the  purpose  for  which  he  received  it, 
and  such  interest  will  be  computed  from  the  time  of  such  neglect 
or  refusal.  Interest  in  these  cases  is  allowed  upon  the  ground 
that  the  agent  has  retained  in  his  possession  money,  of  which  it 
was  his  duty  to  make  some  other  disposition.^ 

Thus,  as  has  been  seen,  it  is  the  duty  of  an  agent  who  has  col- 

Cooley  t».   Belts,   24  Wend.  (N.  Y.)  *  Waddell  v.  Swann,  91  N.  C.  108; 

203.  Wiley  «.  Logan,  95  N.  C.  358. 
»  Bedell  v.  Janney,  supra.  «  Clegg  v.  Bamberger,  —  Ind.  — ,  9 

9  Clark  «.   Moody,    17    Mass.  145;  North  E.  Rep.  700. 

Eaton  V.  Welton,  33  N.  H.  353.  •  Clegg  v.  Bamberger,  supra. 

»  Dodge  V.  Perkins,  9  Pick.  (Mass.)         '  See  cases  following. 

868. 

368 


Chap.  II,]  LIABILITY    OF   AGENT   TO    PRINCIPAL.  §  533. 

lected  money  for  his  principal,  to  give  him  notice  of  that  fact 
within  a  reasonable  time.  Failing  in  this  duty,  he  is  properly 
chargeable  with  interest  from  the  time  when  such  notice  should 
have  been  given,  even  though  he  has  acted  in  good  faith.'  A 
fortiori  is  he  chargeable  with  interest  where,  having  collected 
money,  he  neglects  or  refuses  upon  proper  demand  to  pay  it  over, 
or  converts  it  to  his  own  use.' 

So  if  he  has  received  money  to  be  devoted  to  a  specific  pur- 
pose, as  to  make  an  investment,  and,  contrary  to  his  duty,  retains 
and  applies  it  to  his  own  use,  he  will  be  charged  with  interest 
from  the  time  of  its  receipt.* 

Where,  however,  the  agent  is  entitled  to  retain  tho  money,  as 
by  virtue  of  some  lien  or  charge  upon  it,  he  can  not  be  chargeable 
with  interest  during  the  period  of  such  retention.*  So  if  the 
principal  voluntarily  permits  the  money  to  remain  in  the  hands 
of  his  agent,  who  holds  himself  in  readiness  to  pay  over  upon 
demand,  the  agent  will  not  be  chargeable  with  interest,'  unless 
he  has  been  able  to  so  invest  or  use  the  money  as  to  make  it  oarn 
interest,  for  which  he  would  be  chargeable.* 

§  533.  When  Liability  barred  by  Statute  of  Limitations. 
Statutes  of  limitation  begin  to  operate  only  when  a  right  of 
action  has  accrued.  The  determination  therefore  of  the  'luestion 
when  the  statute  begins  to  run  against  the  principiil  depends 
upon  the  other  question  of  the  time  when  his  right  of  ncdon 
accrued.  As  has  been  seen,  the  general  rule,  subject  to  cei  tain 
exceptions  already  noted,  is  that  the  right  of  action  does  not 

•  Dodge  e.  Perkins,  9  Pick.  (Mass.)  Wheeler  «.  Haskins,  41  Me.  482;  Hy- 

868;  Clark*.  Moody,  17  Mass.  145.  man  t>.   Gray,   4  Jones  (N.  Car.)  L. 

»  Anderson  v.  State,  2  Ga.  370;  Be-  155;  Rowland  «.  Martindale,  1  Bailey 

dell «.  Janney,   9  III.   193;  Board  of  (S.    Car.)    Ch.     226;    Hauxhurst    «. 

Justices  v.  Fennimore,  1  N.  J.  L.  242;  Hovey,  26  Vt.  544. 

People  ©.  Gfasherie,  9  Johns.  (N.  Y.)  •  Bassett  ».  Kinney,  24  Conn.  267; 

71;  Harrison    t».  Long,   4  Desau.  (S.  Williams  «>.  Storrs,   6  Johns.  (N.  Y.) 

Car.)  110;   Hill  D.  Williams,  6  Jones  Ch.  353,  10  Am.  Dec.  340;  Landis  o. 

(N.  Car.)  Eq.  243.                         '  Scott,  32  Penn.  St.  495. 

3  Hill  e.  Hunt,  9  Gray  (Mass.)  66.  Where    agent     mixes     principal's 

♦Thompson  t».    Stewart,    3  Conn.  money  with  his  own  by  depositing 

171,  8  Am.  Dec.  168.  it  in  a  general  bank  account,  he  may 

»  Gunn  «.    Howell,    35    Ala.  144;  be  charged  with  interest.     Blodgett's 

Nisbet  V.  Lawson,  1  Ga.  275 ;  Hackle-  Estate  ».  Converse's  Estate,  —  Vt.  — , 

man  v.   Moat,   4  Blackf.  (Ind.)  164;  15  Atl.  Rep.  109. 
Gordon  r.  Zacharie,  15  La.  Ann.  17; 

24  369 


§  533.  THE   LAW   OF   AGENCY.  [Book  lY. 

accrue  until  a  demand  has  been  made  with  which  the  agent  has 
refused  or  neglected  to  comply.  It  is  therefore  the  general  rule 
that  the  statute  of  limitations  begins  to  operate  upon  a  claim 
against  an  agent  for  money  or  property  received  by  him,  only 
from  the  time  when  he  has  rendered  an  account  showing  a  bal- 
ance due  from  him,  or  when  a  demand  has  been  made  upon  him 
and  he  has  refused  or  neglected  to  account.* 

As  has  already  been  observed,  this  rule  is  subject  to  a  variety 
of  exceptions  growing  out  of  the  peculiar  circumstances  of  indi- 
vidual cases.  Thus  where  the  necessity  for  a  demand  is  nega- 
tived by  the  arrangement  between  the  parties,  or  where,  as  is  the 
case  of  a  foreign  factor,  a  demand  might  be  impracticable  or 
highly  inconvenient.*  no  demand  is  necessary.  So  if  a  collecting 
agent  has  neglected  to  give  his  principal  notice  of  the  fact  of  the 
collection  in  order  that  the  latter  may  give  him  instructions  as 
to  the  disposition  of  the  money,  he  can  not  complain  if  the  stat- 
ute does  not  begin  to  run,  unless  he  can  show  affirmatively  that 
by  the  exercise  of  reasonable  diligence  the  principal  could  have 
ascertained  the  fact  of  collection  and  made  a  demand  accordingly.' 

Upon  receiving  notice  of  the  receipt  of  the  money,  it  is  the 
duty  of  the  principal  to  demand  it  or  give  instructions  as  to  the 
disposition  of  it  within  a  reasonable  time,  and  if  he  omits  to  do 
so,  he  will  put  the  statute  in  motion,  from  the  time  of  such 
omission.  * 

» Judah  «.  Dyott,  8  Blackf.  (Ind.)  den  t>.  Crafts,  4  E.  D.  Smith  (N.  Y.) 

324.  25  Am.  Dec.  112;  Jett  v.  Hemp-  490;    Sawyer  v.    Tappan,    14  N.    H. 

Btead,   25  Ark.    463;    Whitehead    v.  353;  Hutchins  v.    Gilman,    9   N.  H. 

Wells,  29  Ark.  99;  Dodds  v.  Vamioy,  S60;  Taylor  v.  Bates,  5  Cow.  (N.  T.) 

61  Ind.  89;    Lynch  v.   Jennings,  43  379;  Hays  v.  Stone,   7  Hill  (N.    Y.) 

Ind.  276;  Green  v.  Williams,  21  Kan.  128;  Krause  v.  Dorrance,  10  Penn  St. 

64;   Taylor  v.   Spears,   8  Ark.   429;  462,    51   Am.   Dec.   496;    Staples  v. 

Hyman  v.  Gray,  4  Jones  (N.  Car.)  L.  Staples,  4  Me.  532. 

155;  Merle  t).   Andrews,  4  Tex.  200;  'Clark    v.   Moody,    17   Mass.  145; 

Baker  v.  Joseph,  16  Cal.  173;  Lever  Eaton  v.  Welton,  32  N.  H.  352;  Haas 

V.  Lever,  1  Hill  (S.  Car.)  Ch.  62;  Rob-  t.  Damon,  9  Iowa  589. 

ertst).  Armstrong,  1  Bush  (Ky.)  263;  »Jett  v.   Hempstead,  25  Ark.  463; 

VossB.  Bachop,  5  Kan.  59;  Krutz  u.  Whitehead  v.    Wells,    29    Ark.    99; 

Fisher,  8  Kan.  90;  Egerton  b.  Logan,  Drexel  v.  Raimond,  23  Penn.  St.  21. 

61  N.  Car.  172;  Jayne  v.  Mickey,  55  See  Rhines  v.  Evans,    66  Penn.  St. 

Penn.  St.  2G0;  Stiles  v.  Donaldson,  2  192;  Campbell  v.  Boggs,  48  Penn.  St. 

Yates    (Penn.)    105;     Mandeville    v.  524. 

Welch,  5  Wheaton  (U.  S.)  277;  Baird  <  Jett  v.  Hempstead,  »upra. 
V.  Walker,  12  Barb.  (JS.  Y.)  298;  Hal- 

370 


Chap.  II,]  LIABILITY    OF   AGENT   TO   PRINCIPAL.  §  535. 

§  53i.  Form  of  Action— When  equitable.  It  seems  to  be 
well  settled  that  the  mere  relation  of  principal  and  agent  is  not 
sufficient  to  authorize  the  principal  to  come  into  a  court  of  equity 
for  an  accounting.  For  very  many  of  the  questions  arising  be- 
tween them,  the  ordinary  legal  remedies  are  entirely  adequate ; 
and  where  this  is  the  case,  resort  cannot  be  had  to  equity.' 
When,  however,  the  agency  is  one  of  a  strictly  fiduciary  charac- 
ter, involving  a  question  of  confidence  between  the  parties,  and 
fraud  is  alleged  or  a  discovery  sought,  or  where  the  account  is  so 
complicated  that  it  cannot  be  settled  at  law  without  great  diffi- 
culty, a  bill  in  equity  may  be  maintained,* 

§  535.  Of  the  Agent's  Right  of  Set-off.  The  right  of  set-oflf, 
recoupment  and  counter  claim  in  actions  at  law  between  principal 
and  agent  is  governed  ordinarily  by  the  same  rules  that  apply 
in  other  cases.  This  right,  however,  may  be  waived  by  contract, 
express  or  implied,  and  it  cannot  be  insisted  upon  where  its  en- 
forcement would  result  in  a  violation  of  the  agent's  duty  to  his 
principal.'  The  receipt  of  money  by  an  agent  to  be  applied  to  a 
specific  purpose,  imposes  upon  him  the  duty  not  to  apply  it  to  an- 
other and  different  purpose.  He  cannot  therefore  apply  it  to  his 
own  use,  by  using  as  a  set-off  against  it,  a  demand  due  him  from 
his  principal.* 

Thus  where  the  principal  authorized  his  agent  to  collect  cer- 
tain rents,  and  apply  them  first  to  the  payment  of  debts  due  to 
third  persons  and  then  to  the  payment  of  a  debt  due  the  agent, 
but  the  agent  applied  the  whole  amount  upon  his  own  debt,  it 
was  held,  in  an  action  by  the  principal  to  recover  the  amount  col- 
lected, that  the  agent  could  not  set  off  the  debt  due  to  himself. 

•Knotts    V.    Tarver,   8    Ala.    743;  supra;     Moxon    v.     Bright,    supra; 

Crothers  v.  Lee,  39  Ala.   337;  Kirk-  Makepeace  v.  Rogers,  4  DeG.  J.  &  S. 

man  v.  Vanlier,  7  Ala.  224;  Paulding  649. 

«.  Lee,  20  Ala.  768;  Halsted  v.  Rabb,  'Tagg  v.  Bowman,  108  Penn.  St 

8  Porter,  (Ala.)  63;  Russell  v.  Little.  273,  56  Am.  Rep.  204. 

28  Ala.  160;  Coquillard  v.  Suydam,  8  *  Tagg  v.   Bowman,  supra;  Tagg  «. 

Blackf.  (Ind.)  24;  Powers  v.  Cray,  7  Bowman,  99  Penn.  St.  376;  Smuller 

Ga.   206;  Moxon  v.  Bright,   L.   R,  4  ».  Union  Canal  Co.,  37  Penn.  St.  68; 

Ch.  Ap.  292;   Navulshaw  v.  Brown-  Bank  v.  Macalester,  9  Penn.  St.  475; 

rigg,  2  DeGex.  M.  &  G.  441.  Ardesco  Oil  Co.  v.  North  American 

'Thornton  B.  Thornton,  31  Gratt.  Co.,  66  Penn.   St.   375;    Middletown, 

(Va.)  212;    Taylor  v.    Tompkins,    2  &c.  Road  c.  Watson,  1  Rawle  (Penn.) 

Heisk.  (Tenn.)  89;  Halsted  v.  Rabb,  330. 

371 


§  536.  THE   LA.W   OF   AGENCY.  [Book  lY. 

The  money  collected  by  the  agent,  said  the  court,  belonged  to  the 
principal,  and  as  it  came  into  the  agent's  hands,  it  was  impressed 
with  a  trust  in  favor  of  the  principal  which  required  its  applica- 
tion to  the  objects  specified  in  their  order.  So  long  as  there  was 
anything  due  upon  the  preferred  objects,  the  agent  had  no  right 
to  appropriate  any  of  the  money  to  the  payment  of  his  own 
claim.  If  he  did  so,  it  was  a  manifest  breach  of  the  trust  under 
which  it  was  received.' 

And  the  same  principle  applies  wherever  the  agent  has  received 
money  of  his  principal  by  virtue  of  any  special  authority.  Thug 
an  agent  employed  to  collect  a  claim,  when  he  has  received  the 
money,  has  no  right  to  set  off  against  it  an  antecedent  debt  or 
claim  owing  to  him  by  the  principal,  without  first  showing  that 
the  latter  has  agreed  that  he  might  so  apply  it.* 

§  536.  How  far  Principal  may  follow  Trust  Funds.  It  may  be 
stated  as  a  general  principle  that,  wherever  property  or  funds  have 
come  into  the  hands  of  the  agent  impressed  with  a  trust  in  favor 
of  the  principal,  such  property  or  funds  may  be  followed  by  the 
principal  as  long  as  they  can  be  identified  until  they  come  into 
the  possession  of  a  bona  fide  purchaser  for  value  without  notice 
of  the  trust.'  So  if  the  property  or  funds  have  been  disposed  of 
or  reinvested,  the  trust  will  in  equity  adhere  to  the  proceeds  in 
the  same  manner  and  to  the  same  extent  as  to  the  original  estate, 
that  is  as  long  as  they  can  be  traced  and  until  they  are  acquired 

•  Tagg  V.  Bowman,  mpra.  Hallett,  18  Ch.  D.  696,  86  Eng.  Rep. 

•Simpson  v.  Pinkerton,  Penn.   10  779;  Rolfe  c.  Gregory,  4  DeQ.  J.  &. 

W.  N.  C.  423;  Middletown,  &c.  Road  S.  576;  Leigh  v.   Macaulay,  1  Y.  «& 

«.  Watson,  mpra.  C.  Ex.  260;  Smith  u.  Barnes,  L.  R.  1 

3  National  Bank  «.   Insurance  Co.  Eq.  65  Boursot  v.  Savage,  L.  R.  2  Eq. 

104  U.  S.  54;  McLeod   v.    Evans,  66  134;  Newton  v.  Newton,  L.  R.  6  Eq. 

Wis.  401,  57  Am.  Rep.  287;  Peak  v.  135;  Heath©.  Crealock,  L.  R.  18  Eq. 

Ellicott,  80  Kan.  158,  46  Am.   Rep.  215;  Griffin  v.  Blanchar.  17  Cal.  70; 

90;  Farmers'  &  Mechanics'  Bank  t>.  Sharp  «.  Goodwin,  51  Cal.  219;  Scott 

Kin?,  57  Penn.  St.  202,  98  Am.  Dec.  t.  Umbarger,   41  Cal.  410;    Price  •. 

215;  VanAlen  v.  American  National  Reeves,     38     Cal.    457;    Siemon    •. 

Baiik,  53  N.  T.  1;  Riehl  t.  Evansville  Schurck,  29  N  Y.  598;  Swinburne  «. 

Foundry  Assn,  104  Ind.  70,  3  N.  East  Swinburne,  28  N.  Y.   568 ;  Stephens 

Rep.  633;  Pugh  v.  Pugh,  9  lad.  133;  ».  Board  of  Education,  79  N.  Y.  183; 

Baker  v.  New  York  National  Bank,  Holden  «.  Bank,  73  N.  Y.  286;  New- 

100  N.  Y.  31,  53  Am.  Rep.  150.  ton  v.  Porter,  69  N.  Y.  133;  Dotterer, 

In  r«  District  Bank,  11  Ch.  D.  773,  e.  Pike,  60  Ga.  29;  Phelps  v    Jack- 

82  Eng.    Rep.    810;    Knatchbull  v.  son,  31  Ark.   272;  Planters'  Bank  t>. 

372 


Ciiap.  II.]  LIABIHIY    OF    AGENT    TO    PKINCirAL. 


sac. 


by  a  hona  fide  purchaser  without  notice.*  It  does  not  matter  that 
the  legal  title  to  the  fund  may  have  changed.  Equity  will  follow 
it  through  any  number  of  transmutations  and  preserve  it  for  the 
owner  so  long  as  it  can  be  identified.'  And  if  it  can  not  be  iden- 
tified by  reason  of  being  mingled  with  the  funds  or  property  of 
the  agent,  then  the  principal  will  be  entitled  to  a  charge  upon 
the  whole  mass  to  the  extent  that  the  trust  fund  is  traceable  into  it* 
It  is  not  necessary  to  trace  the  trust  fund  into  any  specific  prop- 
erty. If  it  can  be  traced  into  the  estate  of  the  defaulting  agent 
it  is  sufficient.* 

In  case  of  the  bankruptcy  of  the  agent,  neither  the  property 
nor  the  money  would  pass  to  his  assignees  for  general  administra- 
tion, but  would  be  subject  to  the  paramount  claim  of  the  prin- 
cipal.' 

The  fact  that  the  agent  may  be  prosecuted  criminally  does  not 
prevent  the  principal  from  following  and  recovering  his  money.* 


Prater,  64  Ga.  609;  Veile  v.  Blodgett, 
49  Vt,  270;  Mercier  v.  Hemme,  50 
Cal.  606.  Boyd  v.  Briackia,  55  Cal. 
427;  Burnett  7J.  Gustafson,  54  Iowa  86. 

'National  Bank  v.  Insurance  Co., 
104  U.  S.  54;  Pennell  v.  Deffell,  4 
DeG.  M.  &  G.  372;  Frith  v.  Cartlaad, 
2  Hem.  &  M.  417;  Taylor  v.  Plumer, 
8  M.  «&  8.  562;  KnatchbuU  v.  Hallett, 
13  Ch.  Div.  696,  36  Eug.  Rep.  779. 

9  Farmers'  «&c.  Bank  «.  King,  57 
Penn.  St.  202,  98  Am.  Dec.  215. 

3  Peak  V.  Eliicott,  30  Kans.  158,  46 
Am.  Rep.  90;  In  re.  District  Bank, 
11  Oil.  Div.  772,  33  Eng.  Rep.  810; 
KnatchbuU  v.  Hallett,  L.  R.  13  Ch. 
Div.  696,  36  Eug.  Rep.  779. 

4  McLeod  V.  Evans,  66  Wis.  401,  57 
Am.  Rep.  287;  Francis  v.  Evans,  69 
Wis.  115,  33  N.  W.  Rep.  93;  Bowers 
c.  Evans,  —  Wis.  - ,  36  N.  W.  Rep, 
629;  Frith  «.  Cartland,  2  Hem.  &  M. 
417;  Pennell  v.  Deflfeli.  4  DeG.  M.  & 
G.  372;  KnatchbuU  v.  Hallett,  L.  R. 
13  Ch.  Div.  696,  36  Eng.  Rep.  779; 
National  Bank  v.  Insurance  Co.  104 
U.  S.  54;  Van  Alen  v.  American  Nat. 
Bank,  62N.  Y.  1;  Peak  «.   Eliicott, 


30  Kans.  153,  4G  Am.  Rep.  90;  People 
V.  City  Bank,  96  N.  Y.  32;  Rielil  v. 
Evansville  Foundry  Assn.  104  Ind. 
70,  3  N.  East.  Rep.  633.  But  see 
Gavin  v.  Gleason,  105  N.  Y.  256; 
Hopkins'  Appeal,  —  Penn.  — ,  9  Atl. 
Rep.  867;  Continental  Nat.  Bank  «. 
Weems,  69  Tex.  489,  5  A.  St.  Rep.  85. 

» Baker  t5.  New  York  National  Bank, 
100 N.  Y.31,53Am.  Rep.  150;  McLeod 
V.  Evans,  66  Wis.  401,  57  Am.  Rep. 
287;  Peak  v.  Eliicott,  30  Kans.  158, 
46  Am.  Rep.  90;  Chesterfield  Mnfg. 
Co.  V.  Dehon,  5  Pick.  (Mass.)  7,  16 
Am.  Dec.  367;  Merrill  v.  Bank  of 
Norfolk,  19  Pick.  (Mass.)  32.  Thomp- 
son V.  Perkins,  3  Mason  (U.  S.  C.  C.) 
232;  Duguid  v.  Edwards,  50  Barb. 
(N,  Y.)  388;  Harrison  v.  Smith,  83 
Mo.  210;  Stoller  v.  Coates,  8S  Mo. 
514;  Thompson  v.  Gloucester  City 
Sav.  Inst.  —  N.  J.,— 8  Atl.  Rep.  97. 

•  Riehl  V.  Evansville  Foundry  Assn. 
104  Ind.  70,  3  North  E.  Rep.  633, 
disapproving  Campbell  v.  Drake,  4 
Ired.  (N.  C.)  Eq.  94,  and  Pascoag 
Bank  V.  Hunt,  3  Edw.  (N.  Y.)  Ch. 
583. 


373 


§537. 


THE    LAW    OF    AQENOT.  [Book    IV. 


The  principal  cannot,  of  course,  both  compel  payment  from  the 
ao-ent  of  the  amount  misappropriated,  and  also  have  a  decree  in- 
vesting him  with  the  title  to  the  property  acquired  with  it  by  the 
agent,  but  he  may  have  a  judgment  against  the  agent  for  the 
amount  of  the  trust  money,  less  the  sum  so  recovered.' 

§  537.     Same  Subject— Illustrations.      These   principles  have 
found  frequent  illustration.     Thus  in  a  recent  case  in  Kansas,  it 
appeared  that  the  maker  of  a  note,  originally  given  to  bank  A, 
but  then  held  by  bank  B,  had  left  with  bank  A  sufficient  funds 
for  the  purpose  of  paying  the  note  when  due,  and  that  bank  A 
had  accepted  the  money  for  that  purpose.     Instead  of  paying  the 
note,  however,  bank  A  appropriated  the  money   to  its  own  uses, 
and  shortly  afterward  made  an  assignment  for  the  benefit  of  its 
creditors.     The  maker  of  the  note  then  brought  an  action  to  re- 
cover the  money  from  the  assignee.     The  assignee  defended  upon 
the  ground  that  the  result  of  the  transaction  was  merely  to  create 
the  relation  of  debtor  and  creditor  between  the  bank  and  the 
maker  of  the  note,  and  that  the  latter  must  therefore  stand  in  the 
same  situation  as  other  creditors.     But  the  court  said  :  "  On  the 
other  hand,  as  respects  this  specific  sum,  the  relation  between  the 
plaintiff  and  the  bank  must  be  regarded  as  that  of  principal  and 
accent.     After  the  bank  received  this  sum  to  satisfy  the  note  of 
the  plaintiff,  the  bank  held  the  money  in  a  fiduciary  capacity ;  if 
the  money  was  not  applied  according  to  the  understanding  of  the 
parties  to  the  satisfaction  of  the  note,  it  should  have  been  re- 
turned to  the  plaintiff.     It  was  not  deposited  to  be  checked  out 
or  to  be  loaned,  or  otherwise  used  by  the  bank ;  in  law  the  bank 
held  it  as  a  trust  fund,  and  not  as  the  assets  of  the  bank.     The 
defendant  as  assignee  of  the  bank,  succeeds  to  all  the  rights  of 
the  bank,  but  as  such  assignee,  he  has  no  lawful  authority  to  re- 
tain a  trust  fund   in  his  hands,  belonging  to  the  plaintiff,  and 
which  the  bank,  at  the  time  of  receiving  the  same,  promised  and 
af^reed  to  apply  in  payment  of  plaintiff's  note.     As  the  money 
was  a  trust  fund,  and   never   belonged  to   the  bank,    its  cred 
iters  will  not  be  injured  if  it  is   turned  over  by  the  assignee  to 
its  owner.     Even  if  the  trust  fund  has  been  mixed  with  other 
funds  of  the  bank,  this  cannot  prevent  the  plaintiff  from  follow- 

iRiebl    V.     Evansville     Foundry      Wis.    131;    Murray    v.    Lydburn,    3 
A88Q.  supra;  Barker  e.   Barker,    14      Johns.  (N.  Y.)  Ch.  441. 

374 


Chap.  II.]  LTABILITY    OF    AGENT   TO    PRINCIPAL.  §  58S. 

ing  and  reclaiming  the  fund  ;  because  if  a  trust  fund  is  mixed 
with  other  funds,  the  person  equitably  entitled  thereto  may  fol- 
low it,  and  has  a  charge  on  the  whole  fund  for  the  amount  due."  ' 
So  where  the  owner  of  a  draft  delivered  it  to  a  banker  for  the 
purpose  of  collecting  it,  and  the  banker,  having  appropriated  it 
to  his  own  use,  made  an  assignment,  it  was  held  that  the  owner 
of  the  draft  might  recover  the  amount  of  it  from  the  assignee. 
It  is  not  necessary,  said  the  court  in  this  case,  to  trace  the  trust 
fund  into  some  specific  property  in  order  to  enforce  the  trust,  but 
it  is  sufficient  if  it  can  be  traced  into  the  estate  of  the  defaulting 
agent.  And  it  was  further  held  that  the  fact  that  the  plaintiff, 
believing  the  estate  to  be  solvent,  had  filed  his  claim  as  a  general 
creditor  and  received  a  dividend  which  he  still  retained,  did  not 
prevent  him,  when  he  subsequently  found  that  the  estate  was  in- 
solvent, from  insisting  upon  the  trust  character  of  his  claim  and 
recovering  the  balance.' 

V. 

•     TO   GIVE   NOTIOB. 

§  538.  Duty  to  give  Notice  of  Facts  material  to  Agency. 
It  is  the  duty  of  the  agent  to  give  to  his  principal  reasonable  and 
timely  notice  of  every  fact  coming  to  his  knowledge  in  reference 
to  his  agency,  and  which  it  may  be  material  for  the  principal  to 
know  in  order  for  the  protection  or  preservation  of  his  interests.* 

Thus  if  property  of  the  principal  in  the  agent's  possession  i& 
attached  *  or  seized  '  as  the  property  of  another,  or  if  it:  is  exposed 
to  danger,  or  if  having  undertaken  to  insure  it,  he  finds  himself 
unable  to  do  so,"  or  if  claims  and  demimds  in  his  hands  to  re- 
ceive payment  are  not  paid  when  due ; '  in  these  and  other  ob- 

'  Peakt>.  Ellicott,  80  Kans.  158,  46  (Penn.)  223;  Moore  «.  Thompson,  9 

Am.  Rep.  90.  Phila.   164;  Devall    v.   Burbridge,    i 

sMcLeod^.  Evans,  66  Wis.  401.  57  Watts  &  Serg.  (Penn.)  305;    Hegen- 

Am.  Rep.  257,  followed  in  Francis  v.  '  myer  v.  Marks,  37  Minn.  6,  5  Am.  St. 

Evans,  69  Wis.  115,   33  N.  W.  Rep.  Rep.  808. 

93;  Bowers  v.  Evans,  —  Wis,  — ,  36  *  Moore  v.  Thompson,  eupra. 

N.  W.  Rep.   629.     But  see   Cavin  t>,  *  Devall  v.  Burbridge,  supra. 

Gleason.  105  N.  T.  256.  •  Callander    «.     Oelrichs,    5  Bing. 

» Arrott     «.      Brown,     6    Whart.  N.  C  58. 

(Penn.)  9;  Harvey  v.  Turner.  4Rawle  ''  Harvey  v.  Turner,  lupra;  Arrott 

V.  Brown,  aupra. 

375 


§  533.  THE   LAW   OF   AGENCY.  [Book  IV. 

vious  cases,  it  is  the  duty  of  the  agent  to  give  his  principal  notice 
tliat  he  may  take  such  steps  as  he  deems  desirable  for  his  protec- 
tion, and  if  the  agent  fails  in  the  performance  of  this  duty  to 
the  injury  of  the  principal,  he  must  respond  to  the  latter  in 
damages. 

This  duty  as  will  be  seen  hereafter  is  made  the  basis  of  the  rule 
that  notice  to  the  agent  of  facts  material  to  the  agency,  shall  be 
deemed  constructive  notice  to  the  principal.' 

*  Bee  post,  §718,  etieq. 

876 


Oiiap.  ill.]       LIABILIXr    07   A.(iitUiIX   TO   TiilKD   PifiiidOtf. 


CHAPTER   III. 

THE  DUTIES  AND  LIABILITIES  OF  THE   AGENT  TO  THIRD 

PERSONS. 


643. 


644. 


A.  PRIVATE  AGENTS. 

g  639.  Agent    not     liable    to    third 
Person  for  Non-feasance. 
640.  Liable  when  he  binds  himself 
Liable  for  Misfeasance. 

I.  In  Contract. 
2  Where  Tie  acts  without  Authority. 

541.  In  general. 

542.  Where  Agent  erroneously  be- 

lieving himself  authorized 
makes  express  Representa- 
tions as  to  his  Authority, 

Where  agent  makes  express 
Representations  known  to 
him  to  be  false. 

Where  Agent  knowing  he  has 
no  Authority,  makes  a  Con- 
tract implying  its  Possession. 
645.  Where  Agent  erroneously  be- 
lieving himself  authorized 
makes  no  express  Represen- 
tations. 

Where  Agent  discloses  all  the 
Pacts  relating  to  his  Author- 
ity. 

How  in  Case  of  Public  Agent. 

Contract  must  have  been  one 
enforceable  against  Principal 
if  authorized. 

In  what  Form  of  Action  is 
Agent  liable. 

When  Agent  liable  on  Con- 
tract itself. 

.    WTiere  though  Authorized  Tie  fails  to 

bind  his  Principal. 
651.  In  general. 


646. 


647. 
648. 


649 


550. 


§  553.  Where  Agent  intending  to 
bind  Principal  uses  apt 
Words  to  bind  himself. 

553.  Where    Agent    intending    to 

bind  Principal  binds  no  one. 

554.  Where  Agent  conceals  Fact  of 

Agency  or  Name  of  Princi- 
pal. 

655.  Where  Agent  makes  full  Dis- 

closure. 

656.  When  Agent  acts  for  a  for- 

eign Principal. 

557.  Where  there  is  no  responsible 

Principal. 

558.  Where  Agent  contracts    per- 

sonally. 

559.  Same  Subject — Public  Agent. 

S.   Where  the  Agent  has  received 
Money, 

560.  In  general. 

a.  Where  Money  has  been  paid  to 
him  for  Principal. 

661.  Not  liable  for  Money  paid 
over  to  Principal  before 
notice. 

562.  Not  liable  where  before  Notice 
his  Situation  has  been 
changed. 

663.  Agent  liable  for  Money  mis- 
paid  though  paid  over,  if 
Agency  was  not  known. 

564.  Agent  liable  without  Notice 

for  Money  illegally  obtained. 

565.  Agent  not    liable  for  Money 

voluntarily  paid. 

566.  Where  Agent  is  a  mere  Stake- 

holder. 


377 


§  5au. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


b.  Where  Money  has  been  paid  to 
Agent  for  third  Person. 

567.  When  Ageat  liable  to  such 
third  Person. 

668.  Same  Subject — What  consti- 
tutes Assent — Consideration. 

II.     In  Tokt. 
1.  For  Non-feasance. 

569.  In  general — Not  liable. 

570.  Same  Subject — Illustrations. 

t.  For  Misfeasance. 

571.  Agency  no  Excuse   for  Mis- 

feasance. 

572.  Same    Subject  —  Distinction 

between  Non-feasance    and 
Misfeasance. 
673.  Same    Subject  —  Principal's 
Knowledge  or  Direction  no 
Defense. 

574.  Same  Subject — Illustrations. 

575.  Liability    in  respect  to   Sub- 

agents. 

576.  Same    Subject  —  Agent   who 

conceals  Principal   liable  as 
Principal  to  Subagents. 

B.  PUBLIC   AGENTS. 
;.  Liability  for  their  own  Torts. 

577.  In  general — Classification. 

578.  No  Action  by  Individual  for 

Breach  of  Duty  owing  solely 
to  the  Public. 

579.  Liable  for  Wrongs  committed 

in  private  Capacity. 

1.  Judicial  Officers. 

580.  Judicial    Officers    not    liable 

when    acting    within     their 
Jurisdiction. 
681.  Liability     not     affected    by 
Motive. 


§  583.  This  Immunity  extends  to 
Judicial  Officers  of  all 
grades. 

583.  Jurisdiction  essential. 

584.  Act  must  be  confined  within 

his  Jurisdiction. 

585.  Same    Subject — When  Juris- 

diction presumed — Superior 
and  inferior  courts 

586.  Same  Subject — Limitations  of 

this  Rule. 

587.  Not  liable  when  Jurisdiction 

assumed  through  Mistake  of 
Fact. 

f.  Quasi- Judicial  Officers. 

588.  What  Duties  are  Judicial  and 

Quasi-Judicial. 

S.  Legislative  Officers. 

589.  Same    Immunity    extends   to 

legislative  Action. 

4.  Ministerial  Officers. 

590.  In  general— Liable    to    Party 

specially  injured. 

591.  Same    Subject  —  Nature    of 

Duty  governs  Liability. 

592.  Same  Subject— What    Duties 

are  ministerial. 

II.  Liability  for  Torts  op  thkib 
Official  Subordinates. 

593.  Public  officers  of  Government 

not  liable  for  Acts  of  official 
Subordinates. 

594.  Same  Subject— To  what  Offi- 

cers this  Rule  applies. 

m.  For  Torts  of  his  privatb  Sbb- 
VANT  OR  Agent. 

595.  Liable  for  Torts  of  his  private 

Servant  or  Agent. 


A.    PRIVATE  AGENTS. 
§  539.     Agent  not  liable  to  third  Person  for  Non-feasance. 
The  agent's  primary  duty  is  to  his  principal.     To  him  alone  does 
he  stand  in  the  relation  of  privity  and  confidence.     To  him  alone 

379 


Chap.  III.]       LIABILITY    OF    AGENT   TO   THIRD    PERSON.  §  540. 

does  he  owe  the  performance  of  those  duties  which  are  implied 
from  that  relation,  or  which  he  has  expressly  assumed,  and  to  him 
alone  is  the  agent  responsible  for  a  failure  to  perform  them. 

It  is  therefore  the  general  rule  that  no  action  can  be  main- 
tained by  third  persons  against  the  agent  to  recover  damages  for 
any  injury  which  they  may  have  sustained  by  reason  of  the  non- 
performance or  neglect  of  a  duty  which  the  agent  owes  to  his 
principal.^ 

§  540.  Liable  when  lie  binds  himself— Liable  for  Misfeasance. 
An  agent,  however,  like  every  other  person,  is  bound  in  the 
course  of  the  discharge  of  his  duty  to  his  principal,  to  exercise  a 
due  regard  for  the  rights  and  privileges  of  others.  If  he  fails  in 
this  duty  and  by  his  wilful  act  or  by  his  negligent  conduct  in- 
flicts an  injury  upon  a  third  person,  he  is  liable  to  that  third  per- 
son in  the  same  manner  as  though  he  were  not  an  agent.  This 
obligation  is  not  one  which  grows  out  of  his  relation  as  an  agent 
but  one  which  the  law  imposes  upon  every  responsible  member 
of  society. 

So,  notwithstanding  the  fact  of  his  agency,  the  agent  may  so 
contract  as  to  bind  himself  to  third  persons.  This  may  be  the 
result  of  a  direct  intention  so  to  do,  or  it  may  be  the  result  of  an 
ineffectual  attempt  to  bind  his  principal.  So,  also,  as  will  be 
seen,  the  agent  may  make  himself  liable  to  third  persons  by 
assuming  to  have  and  to  exercise  an  authority  which  he  does  not 
in  fact  possess. 

These  various  forms  of  liability  will  be  considered  in  this 
Chapter,  under  the  two  subdivisions :  The  agent's  liability  to 
third  persons,     I.  On  contracts.     II.  For  his  torts. 

•  Carey  v.  Rochereau,  16  Fed.  Rep.  12  Mod.  488;  Feltusc.  Swan,  62  Miss. 

87;    Delaney  v.   Rochereau,   34  La.  415;  Stephens  t?.  Bacon,  7N.  J.  L.  1; 

Ann.  1123,  44  Am.  Rep.  456;  Reid  v.  Labadie  v.  Hawley,  61  Tex.   177,  48 

Humber,  49  Ga.  207;  Denny «.  Man-  Am.    Rep.    278:    Fish    v.  Dodge,   4 

hattan  Co.,  2  Den.  (N.  Y.)  115  s.  c.  5  Denio  (N.  Y.)  317,  47  Am.  Dec.  254; 

Id.  639;  Henshaw  v.  Noble,   7  Ohio  Brown  v.  Dean,  123  Mass.  269;  Brown 

St.  231;  Colvin  v.  Holbrook,  2  N.  Y.  v.  Lent,  20  Vt.  533;  Bell  v.  Josselyn, 

126;    Montgomery  Banls    v.    Albany  3  Gray  (Mass.)  311. 
Bank,  7  N.  Y.  459;  Lane  v.  Cotton, 

379 


8  541.  THE  LAW  OF  AGENCY.  [Book  IV. 

I. 

IN  CONTRACT. 

1.    Where  he  Acta  without  Authority. 

§  541.  In  general.  The  question  of  the  liability  of  the 
agent  to  third  persons  upon  contracts  made  or  attempted  to  be 
made  by  him  as  agent,  but  without  authority,  presents  many 
phases.  Thus  an  agent  in  dealing  with  third  persons  may  make 
an  express  assertion  of  his  authority  to  perform  the  act  in  ques- 
tion, (a)  knowing  at  the  time  that  he  has  no  such  authority ;  or 
(b)  believing  in  good  faith,  though  Erroneously,  that  he  has  such 
authority.  So  under  the  same  circumstances,  he  may  deal  with 
third  persons  making  no  express  assertion  of  authority,  but  that 
only,  if  any,  which  arises  from  liis  assuming  to  act  as  agent,  and 
as  before,  either  knowing  that  he  has  not  the  requisite  authority, 
or  believing  in  good  faith,  but  erroneously,  that  he  is  competent. 
Or  again  believing  himself  to  be  or  not  to  be  authorized,  but 
the  question  not  being  free  from  doubt,  he  may  fully  and  fairly 
disclose  to  the  other  party  the  facts  in  regard  to  his  authority  and 
leave  the  other  party  to  determine  for  himself  whether  he  will 
rely  upon  it  or  not. 

This  absence  or  want  of  authority  in  any  given  case  may  result 
either,  1.  Because  he  never  possessed  it ;  2.  Because  once  having 
it,  it  has  since  expired,  or  3.  Because  while  having  some  authority, 
or  authority  to  perform  this  act  in  another  way,  he  has  exceeded 
his  authority,  or  failed  to  observe  the  methods  prescribed  for  him. 
8  542.  Where  Agent  erroneously  believing  himself  authorized, 
makes  express  Representations  as  to  his  Authority.  Where  the 
agent  believing  himself  authorized  to  perform  the  act  in  question, 
in  good  faith  makes  an  express  representation  that  he  is  duly 
authorized,  when  in  fact  he  is  not,  he  is  liable  to  the  party  with 
whom  he  deals  for  any  damages  which  the  latter  may  sustain  by 
reason  of  such  want  of  authority.  The  fact  that  he  acted  in  good 
faith,  does  not  relieve  him  from  liability.  If  he  expressly  agrees 
for  authority,  he  must  make  the  agreement  good  or  be  responsible 
for  the  consequences.* 

1  Kroeger  «.  Pitcairn.  101  Penn.  St.      er,104  Mass.  336,6  Am. Rep.  240;  Jefts 
811,  47  Am.Rep.  718;  Bartlett  c.Tuck-      «.  York,  10  Cush.  (Mass.)  392,  s.  c.  4 

380 


Chap.  Ill,]  LIABILITY  OF  AGENT    TO    THIRD    PERSON.  §  515. 

§  543.  Where  Agent  makes  express  Representations  known  to 
him  to  be  false.  There  can  be  no  question  that  where  an  agent 
makes  an  express  representation  as  to  his  authority  which  he 
knows  to  be  untrue,  with  the  intention  to  deceive  or  mislead  the 
other  party,  and  thereby  does  so  deceive  or  mislead  him  to  his 
damage,  he  is  liable  to  such  other  party  for  the  damage  so  in- 
curred. This  rule  rests  upon  the  plainest  and  most  familiar  princi- 
ples of  justice  and  requires  no  extended  discussion.^ 

§  544.  Where  Agent  knowing  he  has  no  Authority,  makes  a 
Contract  implying  its  Possession.  Where  an  agent  who  knows 
that  he  has  no  authority,  although  he  makes  no  express  represen- 
tation as  to  it,  yet  deals  with  the  other  party  as  one  possessing 
competent  authority,  and  does  not  disclose  his  lack  of  it,  whereby 
the  other  party  suffers  injury,  the  agent  will  be  liable  for  the 
injury  so  occasioned.  This  rule  rests  upon  the  same  principles 
as  the  preceding  one.  For  the  agent  induces  the  other  party  to 
enter  into  the  contract  on  what  amounts  to  a  misrepresentation  of 
a  fact  peculiarly  within  his  own  knowledge,  and  it  is  but  just  that 
he  who  does  so  should  be  considered  as  holding  himself  out  as 
one  having  competent  authority,  and  as  insuring  the  other  party 
against  the  consequences  arising  from  the  want  of  such  authority.* 

§  545.  Where  Agent  erroneously  believing  himself  authorized, 
makes  no  express  Representations,  And  the  same  result  is 
reached  where  the  agent  in  good  faith,  but  erroneously,  believing 
himself  authorized,  assumes  to  deal  with  third  persons  as  one 
authorized  to  act  for  a  certain  principal,  although  he  makes  no 
express  representation  as  to  his  authority.  By  undertaking  to 
act  as  agent  for  another  in  any  given  capacity,  he  tacitly  and 
impliedly  represents  himself  to  be  authorized  as  a  matter  of 
fact  to  act  in  that  capacity,  and  is  liable  to  those  who  have  relied 
thereon  in  good  faith  for  such  injury  as  they  may  sustain,  if  it 
appears  that  he  assumed  as  true  what  he  did  not  know  to  be  so.* 

Cush.  371,  50  Am.  Dec.  791;  Bank  of  «  Kroeger  v.  Pitcairn,  supra;  Dale 

Hamburg  v.  Wray,  4  Strob.  (8.  C.)  87,  «.  Donaldson  Lumber   Co.   48  Ark. 

51  Am.  Dec.  659.  188.  3  Am.  St.  Rep.  224. 

I  Kroeger  v.  Pitcairn,  101  Penn.  St.  »  Kroeger  v.  Pitcairn,  101  Penn.  St. 

311,    47    Am.     Rep.   718;    Smout  v.  811,   47  Am.   Rep.    718;    Bartlett  v. 

Ilbery,  10  Mees.  &  Wels.  1;  Bank  of  Tucker,  104  Mass.  336,6  Am.  Rep.240; 

Hamburg  v.  Wray,  4  Strob.  (S.   C.)  Jefts  c.  York,  10  Cush.  (Mass.)  392,  s. 

87,  51  Am.  Dec.  659.  c,  4  Id.  371,  50  Am.   Dec.  791;  Bank 

381 


§  546.  THB   LAW   OP    AGENCY.  [Book  lY. 

In  such  a  case  the  loss  must  fall  somewhere,  and  as  between 
the  third  person  and  the  agent  both  equally  innocent,  it  must  be 
borne  by  liim  by  whose  act  it  was  made  possible.  Of  course,  if 
the  other  party  knew,  or  by  the  exercise  of  reasonable  care 
might  have  discovered  the  want  of  authority,  he  cannot  recover.^ 

Tills  implied  warranty  by  the  agent  of  his  authority  must  ordi- 
narily be  limited  to  its  existence  as  a  matter  of  fact,  and  not  be 
held  to  include  a  warranty  of  its  adequacy  or  suflSciency  in  point 
of  law." 

?  646.  Where  Agent  discloses  all  the  Facts  relating  to  his 
Authority.  Where,  however,  the  agent,  acting  in  good  faith, 
fully  discloses  to  the  other  party,  at  the  time,  all  the  facts  and 
circumstances  touching  the  authority  under  which  he  assumes  to 
act,  so  that  the  other  party  from  such  information  or  otherwise, 
is  fully  informed  as  to  the  existence  and  extent  of  his  authority, 
he  cannot  be  held  liable.' 

It  is  material  in  these  cases  that  the  party  complaining  of  a  want 
of  authority  in  the  agent  should  be  ignorant  of  the  truth  touching 
the  agency.  If  he  has  fall  knowledge  of  the  facts,  or  of 
such  facts  as  are  sufficient  to  put  him  upon  inquiry,  and  he  fails 
to  avail  himself  of  such  knowledge  or  of  the  means  of  knowledge 
reasonably  accessible  to  him,  he  cannot  say  that  he  was  misled 
simply  on  the  ground  that  the  other  assumed  to  act  as  agent 
without  authority.* 

of  Hamburg  v.  Wray.  4  Strob.  (S.C.)  learned  judge  in  Missouri  as  follows: 

L.  87,  51  Am.  Dec.  659;  McCurdy  e.  "  Where  all  the  facts  are  known  to 

Rogers,  21  Wis.   197,   91   Am.    Dec.  both  parties,  and  the  mistake  is  one 

468;  Randall  v.  Trimen,  16  C.  B.  786;  of  law  as  to  the  liability  of  the  prin- 

CoUen  V.    Wright,    8  E.   &  B.    647;  cipal,  the  fact  that  the  principal  can 

Richardson  v.  Williamson,  L.  R.  6  Q.  not  be  bound  is  no  ground  for  charg- 

B.  276;  Weeks  v.  Propert,  L.  R.  8  C.  ing  the  agent."    Michael  v.  Jones,  84 

P.  427,  6  Eng.   Rep.   193;    Beattie  «.  Mo.  578.    To  same  effect  are  Western 

Lord  Ebury,  L.  R.  7  H.   L.   102,   9  Cement  Co.   v.  Jones,   8  Mo.   App. 

Eng.  Rep.  64.  373;  Humphrey  v.  Jones,  71  Mo.  62; 

'  Newman  v.  Sylvester,  42  Ind.  112;  Ware  v.  Morgan,  67  Ala.  461;  Hall  v. 

Jenkins  v.  Atkins,  1  Humph.  (Tenn.)  Lauderdale,  46  N.  Y.  70. 
294,  34  Am.  Dec.  648.  <Ogden  v.  Raymond,  22  Conn.  379, 

»See  remarks  of  Mellish,  L.  J.  in  58  Am.  Dec.  429;  Newman©.  Sylvea- 

Beattie  v.  Lord  Ebury,  L.   R.  7  Ch.  ter,  42  Ind.  112;  Hall  v.  Huntoon,  17 

Ap.  777;  3  Eng.    Rep    625,   cited  in  Vt.  244,  44  Am.  Dec.  332;  McCurdy 

full  in  note  to  §  553,  post.  v.  Rogers,  21  Wis.  197,  91  Am.  Dec. 

•The   rule  has  been  stated  by  a  468;  New  York,  &c.  Co.  C.Harbison, 

382 


Chap.  III.]        LIABILITY  OF  AGENT   TO   THIRD   PERSON.  §  549. 

Of  course  if  the  agent  conceals  or  misrepresents  material  facts 
to  the  detriment  of  the  other  party,  he  cannot  claim  exemption.' 

§  547.  How  in  Case  of  PubUc  Agent.  Wliere  the  agent  is  a 
public  agent  and  that  fact  is  known  to  the  other  party,  the  latter 
will  be  presumed  to  have  knowledge  of  the  nature  and  extent  of 
the  agent's  authority,  it  being  determined  by  law  of  which  every 
person  is  bound  to  take  notice.  Where  such  an  agent,  there- 
fore, discloses  the  source  of  the  authority  under  which  he 
assumes  to  act,  and  practices  no  fraud  or  misrepresentation,  he 
will  not  be  held  liable  upon  the  ground  of  an  implied  warranty 
of  authority.' 

§  548.  Contract  must  have  been  one  enforceable  against 
Principal  if  authorized.  In  order,  however,  to  make  an  agent 
liable  who  has  assumed  without  authority  to  make  a  contract  in 
the  name  of  his  principal,  the  unauthorized  contract  must  have 
been  one  which  the  law  would  enforce  against  the  principal  if  it 
had  been  authorized  by  him.  Otherwise,  the  anomaly  would 
exist  of  giving  a  right  of  action  against  an  assumed  agent  for  an 
unauthorized  representation  of  his  power  to  make  the  contract, 
when  a  breach  of  the  contract  itself,  if  it  had  been  authorized, 
would  have  furnished  no  ground  of  action  against  the  principal.^ 

§  549.  lu  what  Form  of  Action  is  Agent  liable.  Much  ques- 
tion has  been  raised  as  to  the  form  of  action  in  which  the  agent 
who  acts  without  authority  is  to  be  held  liable  ;  whether  assump- 
sit can  be  maintained  or  only  a  special  action  on  the  case.  It 
would  seem  that  this  is  a  question  to  be  determined  largely  by 
the  particular  facts  of  each  case.* 

Where  an  agent  who  knows  that  he  has  no  authority,  makes 
express  assertions  that  he  possesses  it  or  so  acts  as  to  amount  to 

16  Fed.    Rep.    688;    Murray  v.   Car-  »McCurdyt).  Rogers,  21  Wis.  197, 

others,  1  Mete.  (Ky.)  71;    Curtis  v.  91  Am.  Dec.  468;  New  York,  «fcc.  Co. 

United  States,  2  Nott  &  H.  (Ct.   CI.)  «.  Harbison,  16  Fed.  Rep.  688;  Perry 

144;  Baltimore  v.   Reynolds,  20  Md.  v.  Hyde.  10  Conn.    329;    Murray  v. 

1;  State  v.   Hastings,    10   "Wis.   518;  Carothers,  1  Mete.  (Ky.)  71.     See  also 

Hull  «.    Marshall  County,    12  Iowa  Sanborn  v.  Neal,  4  Minn.  126,  77  Am. 

142.  Dec.  502. 

'Newman  «.  Sylvester,  42  Ind.  112;  "Dung  v.    Parker,  52  N.  Y.   494; 

Ogden  V.  Raymond,  22  Conn.  379,  58  Baltzen  v.  Nicolay,  53  N.  Y.  467. 
Am.  Dec.  429;  Walker  u  Bank  9  N.  *  Patterson  «.  Lippincott,  47  N.  J. 

Y.  582;  JeftSB.  York,  10  Cash.  (Mass.)  L.  457,  1  Atl.  Rep.  506,  64  Am.  Rep. 

893.  178. 

383 


§549. 


THE    LATV    OF    AGENCY. 


[Book  IV. 


an  assertion  of  authority,  and  by  so  doing  deceives  and  injures 
the  other  party  who  has  relied  thereon,  it  can  not  be  doubted 
that  an  action  on  the  case  for  the  deceit  is  an  appropriate  rem- 
edy.* At  the  same  time,  an  action  of  assumpsit  upon  the  ex- 
press or  implied  warranty  of  authority  might  also  be  maintained 
instead  of  the  action  on  the  case.* 

"Where,  however,  the  agent  acting  in  good  faith  and  supposing 
himself  authorized,  has  made  express  or  implied  assertions  of 
authority,  an  action  of  assumpsit  seems  the  more  appropriate 
remedy.  Yet  in  this  case,  also,  an  action  on  the  case  might  be 
maintained. 


* "  The  remedy  against  one  who 
fraudulently  represents  himself  as  the 
agent  of  another,  and  in  that  capacity 
undertakes  to  make  a  coatract  bind- 
ing upon  his  priucipal,  is  an  action  on 
the  case  for  the  deceit  and  not  an 
action  of  assumpsit  upon  the  con- 
tract." Walton,  J.,  in  Noyes  v. 
Loring,  55  Me.  408.  citing  Long  v. 
Colburn,  11  Mass.  97,  6  Am.  Dec. 
160;  Ballou  v.  Talbot,  16  Mass.  461, 
8  Am.  Dec.  146;  Jefts  v.  York,  4 
Cush.  (Mass.)  371,  50  Am.  Dec.  791, 
8.  c.  10  Cush.  (Mass.)  393;  Abbey©. 
Chase,  6  Cush.  (Mass.)  54;  Smout  v. 
Ibery,  10  Mees.  &  Wels.  1;  Jenkins 
V.  Hutchinson,  13  Ad.  &  El.  N.  S. 
744. 

It  is  evident,  however,  from  the 
context  and  from  the  cases  cited,  that 
"the  contract"  referred  to  by  the 
learned  judge  is  the  contract  assumed 
to  be  made  by  the  agent  for  his  al- 
leged principal,  and  not  an  express 
or  implied  contract  or  warranty  of 
authority. 

'  "When  an  agent  makes  a  con- 
tract beyond  his  authority,  by  which 
the  principal  is  not  bound  by  reason 
of  the  fact  that  it  was  unauthorized, 
the  agent  is  liable  in  damages  to  the 
person  dealing  with  him  upon  the 
failh  that  he  possessed  the  authority 
which  he  assumed.  The  ground  and 
form  of  his  liability  in  such  a  case 


have  been  the  subject  of  discussion, 
and  there  are  conflicting  decisions  up- 
on the  point;  but  the  later  and  better 
considered  opinion  seems  to  be  that  his 
liability,  when  the  contract  is  made 
in  the  name  of  his  principal,  rests 
upon  an  implied  warranty  of  his 
authority  to  make  it,  and  the  remedy 
is  by  an  action  for  its  breach.  (Col- 
len  V.  Wright,  8  E.  &  B.  647;  White 
V.  Madison,  26  N.  Y.  117;  Dung  o. 
Parker,  53  N.Y.  494.)  The  reason  why 
the  agent  is  liable  in  damages  to  the 
person  with  whom  he  contracts,  when 
he  exceeds  his  authority,  is  that  the 
party  dealing  with  him  is  deprived  of 
any  remedy  upon  the  contract  against 
the  principal.  The  contract,  though 
in  form  the  contract  of  the  principal, 
is  not  his  in  fact,  and  it  is  but  just 
that  the  loss  occasioned  by  there 
being  no  valid  contract  with  him 
should  be  borne  by  the  agent  who 
contracted  for  him  without  author- 
ity." Andrews,  J.,  in  Baltzen  v. 
Nicolay,  53  N.  Y.  467.  "Later 
cases,"  says  Scudder,  J.,  in  Patter- 
son V.  Lippincott  supra,  "have  held 
»  *  *  that  he  may  be  sued  either 
for  breach  of  warranty  or  for  deceit, 
according  to  the  facts  of  each  case," 
citing  Jeukins  v.  Hutchinson,  13  Ad. 
&  El.  (Q.  B.)  N.  8.  744;  Lewis  ». 
Nicholson,  18  Ad.  &  El.  (Q.  B.)  N.  8. 
503. 


38i 


Chap.  III.]        LIABILITT  OF  AGENT   TO   THIRD   PERSON. 


§550. 


§  550.  When  Agent  liable  on  Contract  itself.  Whether  the 
agent  can  be  held  liable  upon  the  contract  itself  which  he  has, 
without  authority,  assumed  to  make,  is  also  a  question  which  has 
been  much  discussed.  It  would  seem,  however,  that  this  ques- 
tion, like  the  last  one,  is  to  be  determined  largely  by  the  circum- 
stances of  each  case.  Where  the  promise  is  made  in  the  name 
of  the  principal  and  as  his  contract,  the  better  opinion  is  that 
the  agent  can  not  be  held  liable  upon  it,  but  only  for  the  deceit 
or  breach  of  warranty,  even  in  the  case  of  a  written  contract, 
where  the  assumed  relation  of  agency  appears  upon  the  face  of 
it.'  Some  courts  have,  indeed,  manifested  a  disposition  in  this 
latter  case  to  reject  the  words  referring  to  the  alleged  principal 
as  mere  surplusage,  and  to  hold  the  agent  liable  upon  the  remain- 
der as  upon  his  own  contract.*  This,  however,  as  has  been  well 
said,'  is  rather  to  make  a  new  contract  for  the  parties  than  to 
construe  the  one  which  they  have  made  for  themselves.  Where, 
however,  the  agent,  in  undertaking,  without  authority,  to  bind 


«  Jefts  V.  York,  4  Cush.  (Mass.) 
371,  50  Am.  Dec.  791;  Long  v.  Col- 
burn,  11  Mass.  97,  6  Am.  Dec.  160; 
Ballou  V.  Talbot.  16  Mass.  461,  8  Am. 
Dec.  146;  Jefts  v.  York,  10  Cush. 
(Mass.)  395;  Trowbridge  v.  Scudder, 
11  Cush.  (Mass.)  83,  87;  Draper©. 
Massachusetts,  &c.  Co.  5  Allen 
(Mass.)  339;  Sherman  v.  Fitch,  98 
Mass.  63;  Bartlett  «.  Tucker,  104 
Mass.  840,  6  Am.  Rep.  240;  Tucker 
Mnfg.  Co.  V.  Fairbanks,  98  Mass. 
105;  McCurdy  v.  Rogers,  21  Wis.  197, 
21  Am.  Dec.  468;  Noyes  v.  Loring,  55 
Me.  408;  Johnson  v.  Smith,  21  Conn. 
637;  Patterson  v.  Lippincott,  47  N.  J. 
L.  457,  1  Atl.  Rep.  506,  54  Am.  Rep. 
178;  Taylor  u.  Shelton,  30  Conn.  122; 
Duncan  v.  Niles,  32  111.  532,  534. 
"  That  an  agent  may  bind  himself 
personally,"  said  Church,  Ch.  J.,  in 
Johnson  v.  Smith,  21  Conn.  627,  even 
when  acting  really  or  professedly  as 
agent,  is  not  denied;  and  in  the  exe- 
cution of  a  simple  contract  as  well  as 
a  specialty;  and  this  will  be  so,  in  all 
cases,  where,  by  language  already 
expressive  of  such  an  intent,  he  has 


substituted  his  own  responsibility  for 
that  of  his  principal.  So,  also,  if  he 
use  language  of  personal  obligation 
in  the  body  of  the  contract,  although 
he  may  sign  as  agent,  he  will  bind 
himself  if  he  had  no  authority  to 
bind,  and  has  not  bound,  his  princi- 
pal by  his  act.  But  in  case  of  a 
defective  power  to  bind  the  principal, 
if  the  agent  speaks  only  in  the  lan- 
guage of  the  principal  and  does  not 
use  apt  language  to  bind  himself,  he 
will  not  be  liable  on  the  contract 
thus  made,  but  collaterally  only  for  a 
false  assumption  of  authority  to  act 
for  another,"  citing  Jones  v.  Down- 
man,  4  Ad.  &  El.  N.  S.  235,  45  Eng. 
Com.  Law,  234. 

*  See  Richie  v.  Bass,  15  La.  Ann. 
668;  Keener  v.  Harrod,  2  Md.  63; 
Weare  v.  Gove,  44  N.  H.  196;  Sin- 
clair®. Jackson,  8  Cow.  (N.  Y.)  543; 
Meech  v.  Smith,  7  Wend.  (N.  Y.) 
315;  Palmer  t>.  Stephens,  1  Den.  (N. 
Y.)  741. 

*  Hall  V.  Crandall,  29  Cal.  567,  89 
Am.  Dec.  64. 


25 


385 


550. 


THE   LAW    OF    A.GENCT. 


[Book  IT. 


another,  has  used  apt  words  to  bind  himself,  there  is  abundant 
reason  and  justice  in  holding  him  liable  upon  the  contract  itself 
as  made.'  So  if,  notwithstanding  the  fact  of  his  assumed 
agency,  the  credit  was  given  to  him  personally,  or  if  he  has 
expressly  pledged  his  own  responsibility,  he  may  undoubtedly  be 
held  liable,  upon  the  contract  made  by  him.* 

The  rule  sometimes  asserted  that  wherever  the  agent  fails  to 
create  a  right  of  action  against  his  principal  upon  the  contract, 
he  makes  himself  liable  thereon,  cannot  therefore  be  sustained 
as  a  general  rule.'  The  agent  is  only  liable  on  the  contract  in 
those  cases  in  which  he  has  used  apt  words  to  bind  himself,  or 
has  expressly  pledged  his  personal  responsibility,  or  in  which  the 
credit  was  given  to  him  personally.* 


»  Hall  V.  Crandall,  supra. 

«  See  post,  §  558. 

»  Dusenbury  v.  Ellis,  3  Johns.  Cas. 
(N.  Y.)  70,  2  Am.  Dec.  144;  White  v. 
Skinner,  13  Johns.  (N.  Y.)307,  7  Am. 
Dec.    381;    Rossi ter    v,    Rossiter,    8 
Wend.  (K  Y.)  494,  24  Am.  Dec.  62; 
Collins  V.    Allen,    12  Wend.  (N.  Y.) 
356,  27  Am.  Dec.  130;  Mott  b.  Hicks, 
1  Cow.  (N.  Y.)513,  13  Am.  Dec.  550. 
These  early  New  York  cases  which 
are  the  foundation  of  most  of  the 
similar  rulings  in   other  States  have 
been    very   much    modified    if   not 
entirely  overruled  by  the  later  cases 
in  the  Court  of  Appeals.     Dung  v. 
Parker,    52  N.  Y.   494;    Baltzen    v. 
Nicolay,    53  N.    Y.  467;   AVhite   v. 
Madison,  26  N.   Y.  117.     Thus  Gil- 
laspie  V.  Wesson,  7  Port,  (Ala.)  454, 
81  Am.  Dec.   715,  is  based  upon  the 
early    New    York   cases.     See    also 
Clark  V.  Foster,  8  Vt.  98;   Savage  v. 
Rix,  9  N.  H.  263;  Hatch  v.  Smith,  5 
Mass.  42;    Byars  v.  Doores,  20  Mo. 
284;  Coffman  p.  Harrison,  24  Mo.  524. 
« Ogden    V.    Raymond,    22    Conn. 
379,    58    Am.    Dec.  429.     "  We  are 
aware."  said  Ellswobth,  J.  in  this 
case,    "  that    it  is  not  unfrequently 
laid  down  as  a  rule  of  law  that  if  an 
agent  does  not  bind  his  principal  he 
binds  himself;    but  this  rule  needs 


qualification  and  can  not  be  said  to  be 
universally  true  or  correct.  «  «  » 
If  the  form  of  the  contract  is  such 
that  the  agent  personally  covenants 
and  then  adds  his  representative  char- 
acter, which  he  does  not  in  truth  sus- 
tain, his  covenant  remains  personal 
and  in  force,  and  binds  him  as  an  in- 
dividual; but  if  the  form  of  the  con- 
tract is  otherwise,  and  the  language 
when  fairly  interpreted,  does  not  con- 
tain a  personal  undertaking  or  prom- 
ise, he  is  not  personally  liable,  for  it 
is  not  his  contract,  and  the  law  will 
not  force  it  upon  him.  He  may  be 
liable,  it  is  true,  for  tortious  conduct 
if  he  has  knowingly  or  carelessly 
assumed  to  bind  another  without  au- 
thority; or,  when  making  the  con. 
tract,  has  concealed  the  true  state  of 
his  authority,  and  falsely  led  others 
to  repose  in  his  authority;  but  as  we 
have  said,  he  is  not  of  course  liable  on 
the  contract  itself  nor  in  any  form  of 
action  whatever." 

"  The  authorities  are  somewhat 
conflicting  as  to  the  liability  of 
an  agent  in  action  ex  contractu; 
but  the  weight  of  authority,  we 
think  is,  that  to  charge  an  agent 
in  such  action,  the  credit  must  have 
been  given  to  him,  or  there  must  be 
an  express  contract,  and  if  there  is  a 


386 


Chap.  III.]         LIABILITY  OF  AGENT   TO   THIKD    PERSON.  §  651. 

It  may  be  said  that  this  rule  will  result  in  many  cases  in  bind- 
ing neither  the  assumed  agent  nor  his  alleged  principal  upon  the 
contract.  But  if  the  other  party  fails  to  have  a  remedy  either 
upon  the  contract  itself,  or  upon  the  express  or  implied  undertak- 
ing for  authority,  it  will  be  in  those  cases  in  which  he  was  fully 
informed  by  the  agent  of  the  source  and  nature  of  the  authority 
under  which  he  assumed  to  act,  and  was  put  in  a  situation  to 
determine  for  himself  whether  to  rely  upon  it  or  not. 

2.     Where,  though  Authorized,  he  fails  to  hind  his  Principal. 

§  551.  In  general.  But  it  is  not  alone  in  those  cases  in  which 
he  acts  without  authority,  that  the  agent  makes  himself  liable  to 
third  persons.  This  result  may  ensue,  under  a  variety  of  circum- 
stances, even  though  the  agent  were  fully  authorized  to  bind  his 
principal. 

Thus  the  agent  intending  to  bind  his  principal  may,  from  the 
failure  to  use  apt  words  for  that  purpose,  not  only  not  bind  his 
principal,  but  pledge  his  personal  responsibility.  So  he  may  con- 
ceal the  fact  of  his  agency  and  contract  as  the  ostensible  principal. 

So,  though  disclosing  the  fact  of  his  agency,  he  may  volunta- 
rily enter  into  personal  obligations. 

written  contract,  there  must  be  apt  another    without    authority.     If   an 

words  in  it  to  charge  him."    Downer  agent,   in  executing  a  contract,  em- 

J.   in  McCurdy  v.    Rogers,   21  Wis,  ploy    terms    which,    in  legal  effect, 

197,91  Am.  Dec.  468.    To  same  effect,  charge  himself  he  may  be  sued  upon 

see    Newman  v.    Sylvester,   43  Ind.  the  instrument  itself  as  a  contracting 

106;  Duncan  v.  Niles,  33  111.  533,  83  party.    This  is  so  because,    by  the 

Am.    Dec.   293;  Abbey  «.    Chase,  6  use  of  such  terms,  he  has  made  the 

Cush.  (Mass.)  56;  Harper  ».   Little,  2  contract  his  own.     But  if  the  instru- 

Me.  14,  11  Am.  Dec.  25;  Stetson  d.  ment  does  not  contain  such  terms,  or, 

Patten,  2  Me.  358.  11  Am.   Dec.  Ill;  In    other   words,    contains   language 

McHenry  v.  Duffield,  7  Blackf.  (Ind.)  which  in  legal  effect  binds  the  princi- 

41.     So  in  a  leading  case  in  Califor-  pal  only,  the  agent  can  not  be  sued 

nia,  the  rule  is  well  stated  thus:   "In  on  the  instrument  itself,  for  the  obvi- 

all  such  cases  the  remedy  against  the  ous  reason  that  the  contract  is  not  his. 

agent   is    an  action    to    recover  the  If,  then,  the  contract  is  not  binding 

money,   if  any  has  been  paid  him,  upon  the  principal  because  the  agent 

or  the  value  of  the  work  or  labor,  had  no  authority  to  make  it,  and  is 

if    any    has    been    performed     for  not  binding  on  the  agent  because  it 

him,   under    the  supposed   contract,  does  not  contain  apt  words  to  charge 

or  special  damages  resulting  to  the  him  personally,   it   is  wholly  void." 

plaintiff  by  reason  of  the  defendant's  Sanderson,  J.  in  Hall  v.  Crandall,  29 

wrong    in    undertaking   to    act    for  Cal,  667,  89  Am.  Dec.  64. 

387 


§552. 


THE   LAW    OF    AGENCY.  [Book    IV. 


8  552.  Where  Agent  intending  to  bind  Principal,  uses  apt 
Words  to  bind  himself.  It  often  happens  that  an  agent  seeking 
and  intending  to  bind  his  principal  upon  a  contract,  so  defectively 
executes  it  that  he  fails  to  accomplish  that  purpose.  In  such 
cases  it  is  not  unfrequently  the  result  that  no  one  is  bound ;  but, 
more  often,  it  is  found  that  the  agent  has  so  executed  as  to  bind 
himself. 

This  whole  subject  has  been  fully  discussed  under  the  head  of 
the  Execution  of  the  Authority,'  and  nothing  further  needs  to 
be  added  to  it  here,  than  that  where  by  those  rules  of  construc- 
tion it  is  determined  that  the  agent  has  contracted  in  his  personal 
capacity,  he  is,  of  course,  bound,  upon  the  contract  to  the  person 
with  whom  it  was  made. 

8  553.  Where  Agent  intending  to  bind  Principal,  binds  no  one. 
Where  the  agent  intending  to  bind  his  principal  uses  such  lan- 
guage that  neither  the  principal  nor  the  agent  is  bound  upon  the 
contract,  there  has  been  said,  in  many  cases,  to  be  no  liability  attach- 
ing to  the  agent.  He  can  not  be  held  liable  upon  the  contract  it- 
self, because  he  has  used  no  language  sufficient  to  charge  him. 
He  cannot  be  held  liable  upon  any  express  or  implied  warranty 
of  authority,  because  there  is  no  failure  or  lack  of  authority.  It 
is  simply  a  case  of  defective  execution.  If,  however,  the  agent 
has  expressly  warranted  the  sufficiency  of  his  method  of  execu- 
tion, he  could  undoubtedly  be  held  liable  upon  such  warranty. 

Whether  there  is  in  every  case  from  the  mere  fact  that  the 
agent  assumes  to  execute  in  a  certain  manner,  an  implied  war 
ranty  of  the  sufficiency  of  that  manner  to  bind  the  principal,  is 
a  question  not  settled  by  the  authorities.  Upon  reason,  it  would 
seem  that  this  question  is  to  be  determined  by  substantially  the 
same  considerations  that  apply  to  the  case  of  a  warranty  of  au- 
thority. It  is,  indeed,  simply  a  question  of  a  warranty  of  author- 
ity to  execute  in  that  form. 

If  the  agent  knowing  a  certain  form  to  be  insufficient  in  point  of 
fact,  yet  assumes  to  adopt  it,  to  the  damage  of  an  innocent  third 
party  who  has  relied  thereon,  he  should  certainly  be  held  liable 
for  the  deceit.  And  so  where  no  deceit  is  practiced,  unless  the 
accent  fully  discloses  the  nature  and  limitations  of  his  authority 
80  that  the  other  party  may  judge  for  himself  as  to  the  proper 

>  Bee  ante,  %  408,  «t  teq. 

388 


Chap.  III.]        LIABILITY    OF    AGENT   TO   THIRD    PERSON. 


§653. 


method,  it  would  seem  that  he  is  still  to  be  held  liable  for  a  de- 
fect in  fact  as  upon  as  implied  warranty.  But  for  a  defect  in 
point  of  law  only,  the  agent  would  not  ordinarily  be  bound.* 


•  In  reversing  the  judgment  of  the 
Vice  Chancellor  in  Beattie  v.  Lord 
Ebury,  L.  R.  7  Ch.  Ap.  777,  3  Eng. 
Rep.  625,  involving  the  liability  of 
the  directors  of  a  corporation  for 
makiag  a  representation  to  the  man- 
ager of  a  bank  to  the  effect  that  they 
had  power  to  overdraw  the  account 
of  the  corporation,  Sir  Q.  Mellish, 
L.  J.  said:  "The  Vice- Chancellor 
has  decided  that  they  are  so  liable  on 
the  authority  of  three  cases,  which 
are  all  cases  in  the  Courts  of  Law, 
and  which  come  to  this,  that  where 
an  agent  makes  a  contract  on  behalf 
of  his  principal,  he  impliedly  war- 
rants that  he  has  authority  to  bind 
that  principal,  and  if  it  turns  out  that 
he  has  no  authority  to  bind  his  prin- 
cipal and  the  principal  repudiates  the 
obligation,  and  loss  is  thereby  occa- 
sioned, then  an  action  on  that  war- 
ranty can  be  maintained.  But  if 
those  cases  are  examined  it  will  be 
found  in  all  of  them,  that  there  was  a 
misrepresentation  in  point  of  facts  as 
to  the  agent  having  power  to  bind 
his  principal,  and  though  I  have  not 
found  any  case  in  the  Courts  of  Law 
on  the  question,  I  have  no  doubt  my- 
self that  it  would  be  held  that  if  there 
is  no  misrepresentation  in  point  of 
fact,  but  merely  a  mistake  or  mis- 
representation in  point  of  law,  that  is 
to  say,  if  the  person  who  deals  with 
the  agent  is  fully  aware  in  point  of 
fact  what  the  extent  of  the  authority 
of  the  agent  is  to  bind  his  principal, 
but  makes  a  mistake  as  to  whether 
that  authority  is  sufficient  in  point  of 
law  or  not,  under  those  circumstances 
I  have  no  doubt  that  the  agent  would 
not  be  liable.  For  instance,  suppos- 
ing when  an  agent  comes  and  pro- 
poses to  make  a  contract  on  behalf  of 


his  principal,  instead  of  trusting  hia 
representation  that  he  has  power  to 
bind  his  principal,  the  person  dealing 
with  the  agent  were  to  ask  to  see  his 
authority,  and  a  power  of  attorney 
executed  by  the  principal  was  shown 
to  him,  and  he  took  the  opinion  of 
his  lawyer  as  to  whether  the  power  of 
attorney  was  sufficient  to  bind  the 
principal,  and  was  advised  that  it  was 
sufficient  to  bind  the  principal,  and 
then  after  that,  a  contract  was  made, 
and  it  turned  out  when  the  point  was 
raised  in  a  court  of  law  that  the 
power  of  attorney  was  insufficient, — 
under  such  circumstances  I  am 
clearly  of  opinion  that  there  would 
be  no  warranty  on  the  part  of  the 
agent  that  the  power  of  attorney  was 
good  in  point  of  law. 

I  will  shortly  state  the  three  cases 
which  were  relied  upon  before  the 
Vice-Chancellor  to  show  that  they  all 
involve  a  misrepresentation  in  point 
of  fact.  The  first  case  mentioned  on 
the  subject  was  CoUen  v.  Wright,  8 
E.  «fe  B.  647.  That  was  a  simple  case, 
where  the  steward  of  a  gentleman 
executed  an  agreement  for  a  lease  in 
his  name,  and  when  a  suit  was 
brought  for  specific  performance,  it 
turned  out  that  a  gentleman  had 
never  given  any  authority  to  the 
steward  to  make  an  agreement  for  a 
lease  in  his  name.  Specific  perform- 
ance was  therefore  refused.  The 
plaintiff  then  brought  an  action 
against  the  steward  to  recover 
damages,  and  was  held  entitled  to 
recover.  There  it  is  perfectly  plain 
that  the  defendant  had  made  a  mis- 
representation in  point  of  fact. 

The  next  case  was  the  case  of  Rich- 
ardson t>.  Williamson,  Law  Rep.  6Q. 
B.,  276.     There  the  plaintiff  lea>  £70 


389 


§554. 


THE    LAW   OF    AGENCY. 


[Book  lY. 


§  554.  Where  Agent  conceals  Pact  of  Agency  or  Name  of  Prin- 
cipal. An  agent  who  conceals  the  fact  of  his  agency  and  con- 
tracts as  the  ostensible  principal  is  undoubtedly  liable  in  the  same 
manner  and  to  the  same  extent  as  though  he  were  the  real  prin- 
cipal in  interest.'  So  though  the  agent  discloses  the  fact  that  he 
is  an  agent,  but  conceals  the  name  of  his  principal,  he  may  be 
held  personally  liable  as  principal.* 

In  these  cases,  the  other  party  may  also,  at  his  option,  ordina- 
rily hold  the  real  principal  liable  when  discovered, — a  subject  to 
be  hereafter  considered." 


to  a  benefit  building  society,  and  re- 
ceived a  receipt  signed  by  the  defend- 
ants, as  two  of  the  directors,  certify- 
ing that  the  money  had  been  lent, 
and  then  it  turned  out  that  in  point 
of  law  they  had  no  power  to  borrow 
money.  But,  then,  their  power  to 
borrow  money  depended  upon 
whether  they  had  made  a  rule  to  bor- 
row money,  because  a  benefit  build- 
ing society  may  receive  money,  at  any 
rate  to  a  certain  amount,  on  deposit, 
If  it  has  a  rule  enabling  it  so  to 
receive  money.  Therefore  that  was 
taken  as  a  representation  by  the 
directors  that  they  had  such  a  rule, 
and  that  the  borrowing  was  within 
the  rule  when,  in  point  of  fact,  there 
was  no  such  rule  at  all. 

Then  the  third  case,  and  the  one 
which  I  think  has  been  principally 
relied  upon  in  the  argument  before 
us,  was  Cherry  v.  Colonial  Bank  of 
Australasia,  Law  Rep.,  3  P.  C,  24. 
There  the  directors  of  a  joint  stock 
company  gave  authority  to  their 
manager  to  overdraw  the  account. 
If  the  facts  of  the  case  are  examined 
it  will  be  found  that  the  directors 
had  power  to  borrow  money,  pro- 
vided they  got  the  consent  of  a  meet- 
ing of  the  shareholders  but  not  other- 
wise. There  was,  therefore,  a  mis- 
representation in  point  of  fact, 
because  where  they  represented  they 
had  power  to  borrow,  they  practically 


.  represented  they  had  obtained  author- 
ity from  a  meeting  of  the  sharehold- 
ers to  enable  them  to  borrow," 

See  also  cases  cited  in  §  546  ante. 

« Bickford  v.  First  Nat.  Bank,  42 
111.  238.  89  Am.  Dec.  436;  Wheeler  v. 
Reed,  36  111.  82;  Gerard  v.  Moody, 
48  Ga.  96;  Poole  v.  Rice,  9  W.  Va. 
73;  Baltzen  v.  Nicolay,  53  N.  Y.  470; 
Mills  V.  Hunt,  20  Wend.  (N.  Y.)  431; 
Baldwin  v.  Leonard,  39  Vt.  260,  94 
Am.  Dec.  324;  Jones  v.  .^tna  Ins. 
Co.,  14  Conn.  501;  York  County 
Bank  v.  Stein,  24  Md.  447;  Cobb  v. 
Knapp,  71  N.  Y.  848,  27  Am.  Rep, 
51;  McClellantJ.  Parker,  27  Mo.  162 
Beymer  v.  Bonsall,  79  Penn.  St.  298 
Bartlett  v.  Raymond,  139  Mass.  275 
Murphy  v.  Helmrick,  66  Cal.  69 
Button  V.  Winslow,  53  Vt,  430;  Nixon 
V.  Downey,  49  Iowa,  166;  Merrill  v. 
Wilson,  6  Ind,  426;  Pierce  v.  John- 
son, 34  Conn.  274;  Mithoff  v.  Byrne, 
20  La,  Ann.  363;  McComb  v.  Wright, 
4  Johns.  (N.  Y.)  Ch.  659;  Forney  v. 
Shipp,  4  Jones  (N.  C.)  L.  527;  Meyer 
V.  Barker,  6  Binn.  (Penn.)  228;  Dav- 
enport V.  Riley.  2McCord  (S.  C.)  198, 
Conyers  v.  Magrath,  4  McCord(S.  C.) 
392;  Bacon  v.  Sondley,  3  Strobh.  (S. 
C.)  542;  Royce  v.  Allen,  28  Vt.  234; 
Ye  Seng  Co.  «.  Corbitt,  9  Fed.  Rep. 
423;  Brent  e.  Miller,  81  Ala.  309. 

2  Welch  p.  Goodwin,  133  Mass,  71 
25  Am.  Rep.  24. 

»  See  post,  §§  695-701, 


390 


Chap.  III.]         LIABILITY  OF  AGENT   TO   THIRD    PEK80N.  §  555. 

The  duty  rests  upon  the  agent,  if  he  would  avoid  personal  lia- 
bility, to  disclose  his  agency,  and  not  upon  others  to  discover  it.* 
It  is  not,  therefore,  enough  that  the  other  party  has  the  means  of 
ascertaining  the  name  of  the  principal ;  he  must  have  actual 
knowledge  or  the  agent  will  be  bound.  There  is  no  hardship  to 
the  agent  in  this  rule,  as  he  always  has  it  in  his  power  to  relieve 
himself  from  personal  liability  by  fully  disclosing  his  principal 
and  contracting  only  in  the  latter's  name.  If  he  does  not  do  this, 
it  may  well  be  presumed  that  he  intended  to  make  himself  per- 
sonally responsible.* 

An  agent  who  does  not  disclose  his  principal  and  to  whom  a 
personal  credit  is  given,  can  not  escape  responsibility  merely  be- 
cause he  generally  acts  for  a  disclosed  principal  in  other  transac- 
tions.' 

Notice  of  the  agency  to  one  member  of  a  firm,  has  been  held 
not  to  be  sufficient  notice  to  the  firm  to  relieve  the  agent  from 
personal  responsibility  for  transactions  subsequently  had  with  an- 
other member,  who  did  not  know,  and  was  not  informed  of  the 
agency.* 

The  subsequent  disclosure  of  the  principal  by  the  agent  is  not 
sufficient,  nor  is  the  commencement  of  an  action  against  the 
principal  conclusive  evidence  of  an  intention  to  hold  him  alone.' 
Nothing  short  of  satisfaction  from  the  principal  would  in  such 
a  case  be  conclusive  evidence  of  a  discharge  of  the  agent* 
Whether  the  agent  has,  in  fact,  been  released  is  a  question  to 
be  determined  from  all  the  circumstances  of  the  case.' 

§  555.  Where  Agent  makes  full  Disclosure.  The  converse  of 
the  rule  laid  down  in  the  preceding  section  is,  of  course,  true. 

■Baldwins).  Leonard,   89  Vt.  260,  ^Baldwin  v.  Leonard,  39  Vt.  260, 

94  Am.  Dec.  324.  94  Am.  Dec.  324. 

«Cobb  '«.  Knapp,  71  N.  T.  349,  27  "Cobb  v.  Knapp,  71  N.  Y.  349,  27 

Am.  Rep.  51;   Raymond  v.  Crown,  Am.  Rep.  51;    Raymond  v.   Crown, 

&c.  Mills,  2  Mete.  (Mass.)  319.     But  &c.  Mills,  2  Mete.  (Mass.)  319;  Curtis 

see  "Worthington  v.  Cowles,  112  Mass.  v.  Williamson,  L.  R.  10,  Q.  B.  57,  11 

80,  where  the  rule  is  laid  down  that  Eng.  Rep.  149. 

the  agent  is  bound  unless  from    his  «Beyraeru  Bonsall,   79  Penn.  St. 

disclosures  the    other    party  under-  298;Berghofl7J.McDonald,87Ind.549. 

stood,  or  ought  as  a  reasonable  man  That  judgment  without  satisfaction 

to  have  understood,  that  he  was  deal-  constitutes  election,   see  Priestly  e. 

ing  with  the  principal.  Fernie,  3  H.  &  C.  977;  Curtis  v.  Wil- 

» Brent  v.  Miller,  81  Ala.  309;  "Wood  liamson,  supra. 

V.  Brewer,  73  Ala.  259.  'Cobb  v.  Knapp,  mpra. 

391 


§  556.  THE  LAW  or  AGENCY.  [Book  IV. 

If  the  agent  makes  a  full  disclosure  of  the  fact  of  his  agency  and 
of  the  name  of  his  principal,  and  contracts  only  as  the  agent  of 
the  named  principal,  he  incurs  no  personal  responsibility.^ 

§  556.  Where  Agent  acts  for  a  foreign  Principal.  A  distinc- 
tion formerly  prevailed  in  those  cases  in  which  the  principal  was 
a  resident  of  a  foreign  state  or  country.  In  such  cases  it  was 
presumed  that  credit  was  given  to  the  agent  personally  although 
the  agent  disclosed  his  agency.'  But  this  rule  no  longer  prevails 
in  this  country  and  the  contracts  of  agent  in  behalf  of  foreign 
principals  stand  upon  the  same  ground  as  those  made  for  domestic 
employers,  it  being  in  each  case  a  question  of  intention  to  be 
gathered  from  all  of  the  facts  andcircumstances  of  that  case.' 

^  557.  Where  there  is  no  responsible  Principal.  Akin  to 
these  cases  is  that  where  the  agent  assumes  to  represent  a  princi- 
pal who  has  no  legal  existence  or  status,  or  who  has  no  legal 
responsibility.  Thus  where  a  committee,  appointed  by  a  political 
meeting  for  that  purpose,  ordered  a  public  dinner  for  the  party, 
it  was  held  that  the  members  were  personally  liable.  There  was 
here  no  legal  body  to  be  bound.  It  did  not  rise  to  the  dignity 
of  a  voluntary  society  or  a  club,  for,  said  the  court,  "  a  club  is  a 
definite  association  organized  for  indefinite  existence  ;  not  an 
ephemeral  meeting  for  a  particular  occasion,  to  be  lost  in  the 
crowd  at  its  dissolution.  It  would  be  unreasonable  to  pre- 
sume that  the  plaintiff  agreed  to  trust  to  a  responsibility  so  des- 
perate, or  furnish  a  dinner  on  the  credit  of  a  meeting  which  had 
vanished  into  nothing.  It  was  already  defunct ;  and  we  are  not 
to  imagine  that  the  plaintiff  consented  to  look  to  a  body  which 
had  lost  its  individuality  by  the  dispersion  of  its  members  in  the 
general  mass."  * 

» Whitney  e.   Wyman,   101  IT.   8.  March,  33  Me.  106;  Green  «.  Kopke, 

393;    Dunton  t.  Chamberlain,  1  111.  18  C.  B.  549;  Wilson  v.  Zulueta,   14 

App.  861;  Barry  v.  Pike,  21  La.  Ann.  Ad.  &  Ell.  N.  8.  (Q.  B.)  405;  Paice  v. 

331;  Aspinwall  t).  Torrance,  1  Lans.  Walker,  L.  R  5  Ex.  173;  Armstrong 

(N.  T.)  381;  Kean  v.  Davis,  20  N.  J.  e.  Stokes,  L.  R.  7  Q.  B.  603,   3  Eng. 

435.  Rep.  217;  Button  v.  Bulloch,  L.  R.  9 

sSee  Story  on  Agency,  §  268.  Q.  B.  573,  10  Eng.  Rep.  184. 

3  Maury  v.   Ranger,   38  La.   Ann.  *  Eichbaum   v.   Irons,   6  Watts  & 

485,  58  Am.  Rep.   197;   Bray  v.  Ket-  8erg.  (Penn.)  67,  40  Am.   Dec.  540, 

tell,  1  Allen  (Mass.)  80;  Goldsmith  v.  See  also  Blakely  v.  Bennecke,  59  Mo. 

Manheim,  109  Mass.  187;  Oelricks  c.  193,  an   action  upon  an  instrument 

Ford,  23  How.  (U.  8.)  49;  Rogers  v.  signed  by  one  as  captain  of  a  military 

392 


Chap.  III.]        LIABILITT  OF  AGENT   TO   THIRD    PERSON.  §  558. 

§  558.  Where  Agent  contracts  personally.  It  is  undoubtedly 
competent  for  the  agent,  although  fully  authorized  to  bind  his 
principal,  to  pledge  instead  his  own  personal  responsibility, 
if  he  60  prefers.  The  presumption  is  that  the  agent  intends 
to  bind  his  principal,  but  where  he  expressly  charges  himself 
personally,  he  will  be  so  held.'  Such  a  personal  undertaking  is 
not  necessarily  inconsistent  with  his  character  as  agent,  and  where 
he  has  so  promised  personally,  the  mere  addition  of  the  word 
"  agent,"  "  trustee,"  etc.,  to  a  written  promise,  will  ordinarily,  as 
has  been  seen,  be  regarded  as  mere  descriptio  personoB.'' 

Where  the  promise  is  in  writing,  its  construction  and  effect  are 
ordinarily  questions  of  law  to  be  determined  by  the  court,  but 
where  the  promise  is  not  in  writing,  the  question  of  whether  the 
credit  was  given  to  the  agent  personally  is  always  one  of  fact  to 
be  determined  from  all  the  circumstances  of  the  case.*  In  either 
event,  the  law  aims  to  ascertain  the  intent  of  the  parties,  and 
when  that  is  ascertained  it  is  conclusive.*  The  fact  that  the  agent 
was  known  to  be  insolvent  may  be  taken  into  consideration  in 
determining  whether  the  credit  was  given  to  the  agent  or  his 
principal."  Where  dealings  are  had  with  the  agent  of  a  known 
principal,  the  legal  presumption  is,  as  has  been  seen,  that  the 
credit  was  given  to  the  principal  rather  than  to  the  agent  per- 
sonally, and  this  presumption  will  prevail  in  the  absence  of 
evidence  that  the  credit  was  given  exclusively  to  the  agent,*  and 

company.     Edings  v.  Brown,  1  Rich.  ^Cobb  v.  Knapp,  71  N.  Y.  348,  37 

(S.  C.)  255;    Steele  v.    McElroy,    1  Am.  Rep.  51;  Steamship  Co.  v.  Mer- 

Sneed  (Tenn.)  341,   where  the  com-  chants'  Desp.  Trans.   Co.,   135  Mass. 

mittee  of  an  unincorporated  Masonic  421 ;  Hovey  v.   Pitcher,  13  Mo.  191 ; 

lodge  were  held  personally  liable.  Fleming  v.  Hill,  62  Ga.  751;  Whitney 

>  Johnson  v.  Smith,  21  Conn.  627;  v.  Wyman,  101  U.  S.  393.     See  also 

Hall  V.  Crandall,  39  Cal.  567,  89  Am.  cases  cited  in  note  7. 

Dec.  64;  Higgins  v.  Senior,  8  Mees.  <  Whitney     «.      Wyman,      supra; 

&  Wels.  834;  Magee  «.  Atkinson,  3  Worthington  t).  Cowles,  112  Mass.  30. 

Mees.  &  Wels.  440.  «  Garrett  v.  Trabue,  82  Ala.  227, 

8 Duval  V.  Craig,  3  Wheat.  (U.  S.)  'Meeker  v.  Claghorn,  44  N.  Y.  349, 

45;    Townsend  v.    Hubbard,   4   Hill  352;  Foster  v.  Persch,  68  N.  Y.  400; 

(N.  Y.)  351;  Quigley  v.  De  Haas,  82  Ferris  r.  Kilmer,  48  N.  Y.  300;  Mich- 

Penn.  St.  267;  Whitehead  t).Reddick,  ael  v.    Jones,   84  Mo.   578;    Halle. 

12  Ired.  (N.    Car.)  L.    95;    Oliver  v.  Lauderdale,  46  N.   Y.   70;    Bank  of 

Dix,  1  Dev.  &  Bat.  (K  C.)  Eq.  158;  Genesee  e.  Patchin  Bank,   19  N.  Y. 

Appleton  ».  Binks.  5  East.  147;  Tip-  312;  Key  v.  Parnham,    6  Har.    &  J. 

pets  t).  Walker,  4  Mass.  595;  Bryson  ».  (Md.)    418.      Says    Swayne,    J.,   in 

Lucas,  84  N.  C.  680,  37  Am.  Rep.  634.  Whitney  v.  Wyman,  tupra,  "  Where 

393 


§  559.  THE    LAW    OF    AGENCY.  [Book  lY. 

the  burden  of  proof  rests  upon  the  party  alleging  it.  Where, 
however,  the  contract  or  dealings  are  such  as  prima  facie  bind 
the  agent,  the  burden  of  proof  that  in  fact  they  bound  the  prin- 
cipal, is  upon  the  agent. ' 

Of  course  if  the  other  party  knowing  the  principal,  has  seen 
fit  to  give  credit  to  the  agent  exclusively,  he  cannot,  as  will  be 
seen,  afterwards  resort  to  the  principal.* 

§  559.  Same  Subject— Public  Agent.  It  is  also  competent  for 
a  public  agent  to  bind  himself  personally,  if  he  so  elects,  but  it 
is  not  presumed  that  he  will  or  has  done  so.  Indeed,  the  pre- 
sumption that  the  agent  of  a  known  principal  intends  to  bind 
the  latter  rather  than  himself,  is  stronger  in  the  case  of  a  public 
agent  than  in  that  of  the  agent  of  an  individual.  It  is  incumbent, 
therefore,  upon  him  who  seeks  to  hold  a  known  public  agent 
personally  responsible,  to  adduce  clear  proof  of  an  intention  so  to 
be  bound.' 

3.     Where  the  Agent  has  received  Money. 

§  560.  In  general.  The  question  of  the  liability  of  the  agent 
to  third  persons,  for  money  received  by  him,  may  arise  under  two 
states  of  fact.  It  may  be  money  which  the  agent  has  received 
from  such  third  persons  to  be  paid  over  to  his  principal,  and 
which  being  paid  to  the  agent  by  them  through  mistake  or  fraud, 
they  are  desirous  of  recovering  before  it  reaches  the  hand  of  his 
principal.  Or  it  may  be  money  received  by  the  agent  from  his 
principal  to  be  paid  to  such  third  persons,   but  which  the  agent 

the  principal  is  disclosed,   and  the  Allen  (Mass.)  370;  Brown  ?;.  Rundlett, 

agent  is  known  to  be  acting  as  such,  15  N.  H.   360;    Sydnor  v.   Hurd,   8 

the  latter  can  not  be  made  personally  Tex.  98;  Hinsdale  v.   Partridge,    14 

liable  unless  he  agreed  to  be  so."  Vt.  547. 

•  Qillaspie  ?).  Wesson,  7  Port.  (Ala.)  'New  York,  &c.  Co.  «.   Harbison, 

454;  Lazarus  v.  Shearer,  2  Ala.  718;  16  Fed.  Rep.  688;  Hall ».  Lauderdale, 

Drake    v.    Flewellen.    33  Ala.    106;  46  N.  Y.  70;  Gill  ».  Brown,  13  Johns. 

Pratt  ».  Beaupre,  13  Minn.  187;  Ross-  (K  Y.)  385;  Miller*.  Ford,    4  Rich, 

iter  V.  Rossiter,  8  Wend.  (N.  Y.)  494;  (S.   C.)  L.   376,   55    Am.   Dec.   687; 

24  Am.  Dec.  62.  Hodgson  «.  Dexter,  1  Cranch  (U.  8. 

s  Raymond    ».    Crown,   «&c.   Mills,  C.  C.)  109;  Macbeath  v.   Haldimand, 

2  Mete.  (Mass.)  319;  James  v.  Bixby,  17  R.  (Durnf.&  E.)172;Ogden  v.  Ray- 

11  Mass.  34;  Mauri  v.  Heflferman,  18  mond,  22  Conn.  379,   58  Am.    Dec. 

Johns,  (N.  Y.)  58;  Miller  v.  Watt,  70  429;  Walker  v.  Swartwout,  12  Johns. 

Ga.  385;   Stehn  v.  Fasnacht,  20  La.  (N.  T.)  444,  7  Am.  Dec.  334. 
Ann.  83;    Shattuck  v.    Eastman,    12 

394 


Chap.  III.]  LIABILTTT  OF  AGENT   TO   THIRD   PERSON.  §  502. 

has  failed  or  refused  to  pay  to  them,  either  for  some  purposes  of 
his  own,  or  because  he  has  been  directed  by  his  principal  so  to  do. 

a.    Where  Money  has  been  paid  to  him  for  Principal. 

§  561.  Not  liable  for  Money  paid  over  to  Principal  before  No- 
tice. An  agent  to  whom  money  has  by  mistake  been  voluntarily 
paid  for  the  use  of  his  principal,  is  not  liable  to  the  person  so  pay- 
ing it  where,  before  notice  of  such  mistake,  he  has  paid  it  over  to 
his  principal.  In  such  event,  the  person  paying  it  must  look  to 
the  principal.* 

The  agent,  however,  will  be  liable  if  after  being  apprised  of 
the  mistake  and  required  not  to  pay  it  over,  he  then  pays  the 
money  to  his  principal.* 

§  562.  Not  liable  where  before  Notice  his  Situation  has  been 
changed.  So  an  agent  receiving  money  by  mistake  on  account 
of  his  principal  is  not  liable  where,  before  notice  of  the  mistake, 
he  has  done  some  act  upon  the  assumption  that  the  payment  was 
good,  by  which  he  will  be  prejudiced  if  it  be  held  invalid.' 

But  so  long  as  he  stands  in  his  original  situation,  and  until  there 
has  been  a  change  of  circumstances  by  his  having  paid  over  the 
money  to  his  principal  or  done  something  equivalent  to  it,  he  re- 
mains liable.* 

The  mere  forwarding  of  his  account  to  his  principal  and  placing 
the  money  to  his  credit,  is  not  such  a  change  of  circumstances  as 
will  relieve  him.* 

'  Law  ?).  Nunn,  3  Ga.  90;  Upchurch  S.)  137;    Granger  v.  Hathaway,    17 

V.  Norsworthy,  15  Ala.  705;  Griffith  Mich.   500;    Buller   v.    Harrison.    3 

V.  Johnson,  2  Harr.   (Del.)  177;  Mc-  Cowp.  568;  LaFarge  v.  Kneeland,  7 

Donald®.  Napier,  14  Ga.  89;  Garland  Cow.  (N.  Y.)  456;    Herrick  v.  Galla- 

«.  Salem  Bank,  9  Mass.   408,   6  Am.  gher,  60  Barb.  (N.  Y.)566. 

Dec.    86;    Jefts  v.   York,    12  Gush.  « Elliott ».  Swartwout,  supra-,  Bul- 

(Mass.)    196;    Hearsey  v.    Pruyn,    7  ler  v.    Harrison,    supra;    LaFarge  v. 

Johns.  (N.  Y.)   179;    Frye  v.   Lock-  Kneeland,   supra;   Herrick  v.  Galla- 

wood.  4  Cow.  (N.  Y.)  454;  Fowler  v.  gher,  supra;  O'Connor  v.  Clopton,  60 

Shearer,  7 Mass.  14;  Dickens©.  Jones,  Miss.   349;    Penhallow  c.   Doane,    3 

6  Yerg.  (Tenn.)  483;  Pool  v.  Adkis-  Dall.  (U.  S.)  54. 

son,  1  Dana  (Ky.)  117;    Morrison  v.  '  Buller  t).  Harrison,  3  Cowp.  568. 

Currie,  4  Duer  (N.  Y.)  79;  Langley  <  Elliott  v.   Swartwout,    10  Peters 

V.    Warner,   1   Sandf.    (N.   Y.)  209;  (U.  S.)  137;  Buller «.  Harrison,  swpra; 

Wallis  V.  Shelly,  30  Fed.  Rep.  747;  Cox  v.  Prentice,  3  Maule  &  Sel.  348. 

Bailey  e.  Cornell,  —  Mich — ,  33  N.  'Cox  v.  Prentice,  supra;  Buller  t. 

W.  Rep.  50.  Harrison,  supra.     See  also.  Smith  «, 

Elliott  V.  Swartwout,  10  Peters  (U.  Binder,  75  111.  492. 

395 


§  563.  THE    LAW    OF    AGENCY.  [Book  IT. 

§  563.  Agent  liable  for  Money  mispaid  though  paid  over,  if 
Agency  was  not  known.  Where,  however,  the  third  person 
who  paid  money  to  an  agent  under  a  mistake  of  fact  had  no  notice 
of  the  agency,  he  may  recover  the  money  so  paid  from  the  agent 
although  the  latter  has  paid  it  over  to  his  principal.' 

§  564.  Agent  liable  without  Notice  for  Money  illegally  ob- 
tained. An  agent  who  has  obtained  money  from  third  persons 
illegally,  as  by  compulsion  or  extortion, — the  persons  paying  it 
having  done  so  with  no  intent  or  purpose  that  he  should  pay  it 
to  his  principal — is  liable  to  the  persons  from  whom  he  received 
it,  although  he  has  paid  it  over  to  his  principal  without  notice 
not  to  do  so.' 

Money  so  paid  is  not  paid  voluntarily  nor  on  the  account  of 
the  principal,  but  merely  as  the  result  of  the  agent's  illegal 
demands. 

This  principle  has  been  frequently  applied  to  the  cases  of  ex- 
cise and  custom-house  officers,  tax  collectors,  sheriffs,  and  other 
officers  who  by  virtue  of  their  office  have  exacted  and  enforced 
the  payment  of  illegal  fees,  taxes  and  duties. 

§565.  Agentnotliableif  Money  voluntarily  paid.  But  if  the 
money  was  voluntarily  paid  for  the  use  of  the  principal,  though 
paid  under  a  mistake  of  law  as  to  the  liability  to  pay  it,  it  will  be 
a  complete  defense  to  the  agent  that  before  he  had  received 
notice  of  the  mistake,  he  had  paid  it  over  to  his  principal.' 

§  566.  Where  Agent  is  a  mere  Stakeholder.  Where  an  agent, 
who  stands  in  the  situation  of  a  stakeholder,  receives  money  to  be 
paid  over  upon  the  happening  of  a  certain  contingency  or  the 
performance  of  given  conditions,  and  pays  it  over  before  the  hap- 
pening of  the  contingency  or  the  performance  of  the  conditions, 
such  payment  will  be  no  defense  to  an  action  by  the  party  ulti- 
mately found  to  be  entitled  to  receive  the  money.* 


•Smith  «.   Kelly,    43    Mich.    890;  » Elliott  t>.  Swartwout,   10  Pet.  (U. 

Newallc.Tomlinson,  L.  R.  6C.  P.  405.  S.)137;  Mowatt  b.   Wright,  1  Wend. 

'Ripley  v.  Gelston,  9  Johns.  (N.T.)  (N.  Y.)  355;  Branham  v.  San  Jose,  24 

201,  6  Am.  Dec.  271;  Frye  v.  Lock-  Cal.  585;    Silliman  v.    Wing,  7  Hill 

wood,  4  Cow.  (N.  Y.)  456;  Elliott  «.  (N.  Y.)  159. 

Swartwout,    10    Peters  (U.    S.)   137;  «Burrough  c.  Skinner,  5  Burr.  2639; 

Metcalf  V.  Denson,  4  J.  Baxt.  (Tenn.)  Edwards  v.  Hodding,  5  Taunt.  815. 
565;  Snowden  c.  Davis,  1  Taunt.  S58. 

396 


Chap.  III.]         LIABILITY  OF  AGENT   TO    THIKD    PEKSON. 


§567. 


b.     Where  Money  has  been  Paid  to  Agent  for  Third  Person. 

§  567.  "When  Agent  liable  to  such  third  Person.  Where 
money  has  been  delivered  by  a  principal  to  his  agent  to  be,  by 
the  latter,  paid  over  to  a  third  person,  the  duty  to  make  such 
payment  is  one  which  the  agent  owes,  in  the  first  instance,  to  the 
principal  only.  Between  the  agent  and  the  third  person,  there 
is  primarily  no  privity.  The  former  has  entered  into  no  rela- 
tions with  the  latter  by  virtue  of  which  he  owes  to  him  tlie  per- 
formance of  any  duty  other  than  those  imposed  upon  every  mem- 
ber of  society. 

Until  the  agent  has  paid  over  the  money  to  the  third  person,  or 
has  assumed  to  the  latter  the  obligation  to  do  so,  the  principal 
may  at  any  time  revoke  or  countermand  his  directions  to  the 
agent  to  make  the  payment.' 

Based  upon  the  principle,  therefore,  that  one  person  can  not 
maintain  an  action  at  law  upon  a  contract  to  which  he  was  not 
a  party,  though  made  for  his  benefit,*  the  prevailing  doctrine  is 


» Williams  «.  Everett.  14  East  583; 
Tiernan  v.  Jackson,  5  Pet.  (U.  S.) 
680;  Seaman  v.  Whitney,  24  Wend. 
(N.  Y.)  260,  35  Am.  Dec.  618;  Brind 
t.  Hampshire,  1  Mees.  &  Wels.  365; 
Scott  D.  Porcher,  3  Meriv,  652;  Stew- 
art ».  Fry,  7  Taunt.  339;  Denny  v. 
Lincoln,  5  Mass.  385. 

« While  this  principle  is  not  recog- 
nized by  the  courts  of  all  of  the 
States,  it  is  believed  to  be  supported 
by  the  better  reasons,  and  the  weight 
of  authority.  See  Pipp  v.  Reynolds, 
20  Mich.  88;  Turner  u  McCarty,  23 
Mich.  265;  Hicks  v.  McGarry,  38 
Mich.  667;  Nolan  v.  Man  ton,  46  N. 
J.  L.  231,  50  Am.  Rep.  403;  Sergeant 
V.  Stryker,  1  Harr.  (N.  J.  L.)  464; 
Williams  «.  Everett,  14  East  583; 
Tiernan  v.  Jackson,  5  Pet.  (U.  S.) 
680;  Seaman  v.  Whitney,  24  Wend. 
(N.  Y.)  260;  35  Am.  Dec.  618;  Ferris 
V.  Carson  Water  Co.,  16  Nev.  44,  40 
Am.  Rep.  486. 

The  contrary  doctrine  was  finally 
established  in  New  York  after  much 
doubt  and  dissent  in  the  case  of  Law- 


rence V.  Fox,  20  N.  Y.  268,  re-afflrmed 
in  Burr®.  Beers,  24  N.  Y.  178,  80 
Am.  Dec.  327,  and  followed  in  many 
subsequent  cases.  Becker  c.  Tor- 
rancySl  N.  Y.  631,  643;  Dingeldein 
«.  Third  Ave.  R.  R.  Co.,  37  Id.  575, 
577;  Turk  v.  Ridge,  41  Id.  201,  206, 
Barker  ©.  Bradley,  43  Id.  316,  823; 
Coster  v.  Mayor,  43  Id.  399,  411. 
Hutchings  v.  Miner,  46  Id.  456,  460; 
Claflin  V.  Ostrom,  54  Id.  581,  584; 
Glen^j.  Hope  Mut.  Ins.  Co.,  56  Id. 
879,  381 ;  Barlow  v.  Myers,  64  Id.  43, 
21  Am.  Rep.  583;  Simson  e.  Brown, 
68  Id.  355,  358;  Campbell  v.  Smith, 
71  Id.  36,  28;  Bennett  t.  Bates,  94 
Id.  854,  370. 

But  the  courts  of  that  State  have 
declared  themselves  disinclined  to  ex- 
tend the  doctrine,  Barlow  t>.  Myers, 
supra.  See  also  Ricard  v.  Sanderson, 
41  N.  Y.  179;  Freeman  v.  Auld,  44 
N.  Y.  55;  Hutchings  t).  Miner,  46  N. 
Y.  456;  Garnsey  v.  Rogers,  47  N.  Y. 
233,  7  Am.  Rep.  440;  Vrooman  v. 
Turner,  69  N.  Y.  284,  26  Am.  Rep. 
195. 


397 


§567. 


THE    LAW    OF    AGENCY. 


[Book  TV 


that  a  third  person  can  not  sue  an  agent  at  law  to  recover  money 
which  the  agent  has  promised  his  principal  to  pay  to  such  third 
person.  In  order  to  maintain  such  an  action  against  the  agent, 
it  is  necessary  to  show  that  he  has  in  some  way,  in  dealings  with 
such  third  person,  so  recognized  and  assented  to  the  appropria- 
tion of  the  money  to  the  latter  as  to  create  a  privity  between 
them.*     When  this  has  been  done,  the  principal  can  no  longer 

The  New  York  doctrine  also  pre-      banking  house  if  he  would  hand  over 
vails  in  Kansas.     See  Burton  v.  Lar- 
kin,  36  Kan.  246;  59  Am.  Rep.    541, 
citing  the  Kansas  cases. 

» Williams  «.  Everett,  14  East.  583. 
This  case,  which  is  a  leading  one 
upon  the  subject,  has  been  so  often 
cited  as  to  seem  to  warrant  a  full 
statement  of  the  facts  upon  which  it 
arose  and  of  the  judgment  pronoun- 
ced. 

Said  Lord  ELiiENBOROUGH,  Chief 
Justice:  "  The  action  was  for  money 
had  and  received,  brought  by  the 
plaintiff  to  recover  800  £,  being  part 
of  the  amount  of  a  bill  of  1126  £,2  s., 
remitted  by  one  James  Kelly  from 
the  Cape  of  Good  Hope  to  the  de- 
fendant's house,  in  a  letter  dated 
Cape  Town,  8th  July,  1809,  in  which 
Kelly  says,  '  I  remit  you  by  the  War- 
ley  1126  £,  2  s.,  which  I  particularly 
request  you  will  order  to  be  paid  to 
the  following  persons,  who  will  pro- 
duce their  letters  of  advice  from  me 
on  the  subject,'  &c.  Amongst  the 
persons,  he  names  the  plaintiff  Wil- 
liams for  300  £.  And  he  afterwards 
made  another  remittance  for  500  £  on 
the  same  terms.  And  then  he  adds:  'I 
desire  the  amounts  paid  each  person 
to  be  put  on  the  back  of  their  respec- 
tive bills,  «&c.,  'and  that  every  bill 
paid  off  be  cancelled.'  Williams,  by 
his  attorney,  long  before  the  bills  be- 
came due,  gave  the  defendant,  Ever- 
ett, notice  of  a  letter  he  had  received 
from  Kelly,  ordering  his  debt  of  300  £ 
to  be  paid  out  of  that  remittance, 
and  offered  him  an  indemnity  of  a 


the  bill  to  him ;  but  Everett  refused 
to  indorse  the  bill  away,  or  to  act 
upon  the  letter;  admitting,  however, 
that  he  had  received  the  letter  direct- 
ing the  application  of  the  money  in 
the  manner  already  stated.  The 
question  at  the  trial  was  whether  the 
plaintiff  was  entitled  to  receive  from 
the  defendants  the  amount  of  his 
demand  on  Kelly  for  300  £  out 
of  the  bill  for  1126  £,3  8  which  was 
admitted  to  have  been  received  by  the 
defendants  when  it  became  due.  * 
*  *  *  The  question  which  has 
been  argued  before  us  is  whether  the 
defendants,  by  receiving  this  bill,  did 
not  accede  to  the  purposes  for  which 
it  was  professedly  remitted  to  them 
by  Kelly,  and  bind  themselves  so  to 
apply  it;  and  whether,  therefore,  the 
amount  of  such  bill  paid  to  them 
when  due  did  not  instantly  become, 
by  operation  of  law,  money  had  and 
received  to  the  use  of  the  several  per- 
sons mentioned  in  Kelly's  letter,  as 
the  creditors  in  satisfaction  of  whose 
bills  it  was  to  be  applied,  and  of 
course,  as  to  300  £  of  it,  money  had 
and  received  to  the  use  of  the  plain- 
tiff. It  will  be  observed  that  there 
is  no  assent  on  the  part  of  the  defend- 
ants to  hold  this  money  for  the  pur- 
poses mentioned  in  the  letter;  but,  on 
the  contrary,  an  express  refusal  to 
the  creditor  so  to  do.  If,  in  order  to 
constitute  a  privity  between  the  plain- 
tiff and  defendants  as  to  the  subject 
of  this  demand,  an  assent  express  or 
implied  be  necessary,  the  assent  can 


398 


Chap.  III.]        LIABILITY  OF  AGENT   TO   THIRD    PERSON. 


§568. 


revoke  the  appropriation,  nor  can  the  agent  refuse  to  per- 
form it.' 

Where,  however,  the  agent  has  previously  assumed  obligations 
to  third  persons  for  the  accommodation  of  the  principal,  against 
which  the  latter  has  expressly  or  impliedly  agreed  to  indemnify 
him,  a  delivery  of  money  to  the  agent  for  that  purpose  can  not 
be  revoked  by  the  principal ;  *  neither  can  an  appropriation  of 
money  in  the  agent's  hands  be  revoked  by  the  principal  where, 
upon  the  faith  of  such  appropriation  the  agent  has  assumed 
liabilities  to  third  parties.'  In  the  concise  language  of  Maule, 
"  An  act  done  in  performance  of  a  binding  contract  is  not 
revocable."  * 

§  568.  Same  Subject— What  constitutes  Assent — Consideration. 
No  express  form  of  words  is  ordinarily  requisite  to  constitute  an 


in  this  case  be  only  an  implied  one, 
and  that  too  implied  against  the  ex- 
press dissent  of  the  parties  to  be 
charged.  By  the  act  of  receiving  the 
bill,  the  defendants  agree  to  hold  it 
till  paid,  and  its  contents,  when  paid, 
for  the  use  of  the  remitter.  It  is 
entire  to  the  remitter  to  give  and 
countermand,  his  own  directions  re- 
specting the  bill,  as  often  as  he 
pleases,  and  the  persons  to  whom  the 
bill  is  remitted,  may  still  hold  the 
bill  till  received,  and  its  amount  when 
received,  for  the  use  of  the  remitter 
himself,  until  by  some  engagement 
entered  into  by  themselves  with 
the  person  who  is  the  object 
of  the  remittance,  they  have 
precluded  themselves  from  so  doing, 
and  have  appropriated  the  remittance 
to  the  use  of  such  person.  After 
such  a  circumstance  they  cannot  re- 
tract the  consent  they  may  have  once 
given,  but  are  bound  to  hold  it  for 
the  use  of  the  appointee.  If  it  be 
money  had  and  received  for  the  use 
of  the  plaintiff  under  the  orders 
which  accompanied  the  remittance, 
it  occurs  as  fit  to  be  asked,  when  did 
it  become  so?  It  could  not  be  so 
before  the  money  was  received  on  the 


bill  becoming  due;  and  at  that  in- 
stant, suppose  the  defendants  had 
been  robbed  of  the  cash  or  notes  in 
which  the  bill  in  question  had  been 
paid,  or  they  had  been  burnt  or  lost 
by  accident,  who  would  have  borne 
the  loss  thus  occasioned?  Surely  the 
remitter  Kelly,  and  not  the  plaintiff 
and  his  other  creditors,  in  whose 
favour  he  had  directed  the  applica- 
tion of  the  money  according  to  their 
several  proportions  to  be  made.  This 
appears  to  us  to  decide  the  question, 
for  in  all  cases  of  specific  property 
lost  in  the  hands  of  an  agent,  where 
the  agent  is  not  himself  responsible 
for  the  cause  of  the  loss,  the  liability 
to  bear  the  loss  is  the  test  and  conse- 
quence of  being  the  proprietor,  as 
the  principal  of  such  agent." 

I  Wyman  v.  Smith,  2  Sandf,  (N. Y.) 
331;  Williams  v.  Everett,  14East  5S2; 
Stevens  «.  Hill,  5  Esp.  247;  Walker 
V.  Rostron,  9  Mees.  &  Wels.  411; 
Griffin  v.  Weatherby,  Law  Reports, 
3  Q.  B.  758;  Yates  v.  Hoppe,  9  Man. 
G.  &  S.  (9  Com.  B.)  541,  67  Eng. 
Com.  L.  540. 

•Yates  V.  Hoppe,  supra. 

»  Walker  v.  Rostron,  supra. 

*  In  Yates  v.  Hoppe,  supra. 


399 


§  568.  THE   LAW   OF    AGENCY.  [Book  IV". 

assent  on  the  part  of  the  agent  to  the  appropriation.     Like  other 
promises,  this  may  be  implied. 

The  direction  from  the  principal  to  the  agent  may  often  be  in 
substance  or  in  form  an  ordinary  bill  of  exchange,  to  which  the 
rules  relating  to  the  acceptance  of  such  paper  will  apply.  As  is 
said  by  a  learned  writer,'  an  acceptance,  according  to  the  law 
merchant,  may  be  (1)  expressed  in  words,  or  (2)  implied  from 
the  conduct  of  the  drawee.     (3)  It  may  be  verbal  or  written. 

(4)  It  may  be  in  writing  on  the  bill  itself  or  on  a  separate  paper. 

(5)  It  may  be  before  the  bill  is  drawn  or  afterward.     And  (6) 
there  may  be  absolute,  conditional  and  qualified  acceptances. 

By  the  statutes  of  many  of  the  States,  however,  the  rule  of  the 
law  merchant  has  been  changed,  and  an  acceptance  must  be  in 
writing. 

The  question  of  the  consideration  for  the  appropriation  by  the 
principal  may,  in  certain  cases,  become  material.  When  it  is  so, 
the  ordinary  rules  of  law  apply.  The  existence  of  a  debt, 
although  it  be  not  due,  is  a  good  consideration  for  such  an  appro- 
priation to  pay  it.* 

No  new  or  separate  consideration  moving  from  the  third  per- 
son to  the  agent  is  necessary  to  sustain  the  latter's  assent  to  the 
appropriation  of  the  money,*  when  directed  by  the  principal. 

XL 

IN  TOKT. 

a.  For  Non-feasance. 

§  569.  In  general— Not  liable.  As  has  been  seen,*  it  is  the 
general  rule  that  an  agent  is  not  liable  to  third  persons  for  inju- 
ries received  by  them  in  consequence  of  his  not  performing  some 
duty  which  he  owed  to  his  principal.  This  rule  and  the  reasons 
for  it  are  well  stated  in  a  recent  case  in  Louisiana.  "  At  com- 
mon law,  an  agent  is  personally  responsible  to  third  parties  for 
doing  something  which  he  ought  not  to  have  done,  but  not  for  not 
doing  something  which  he  ought  to  have  done ;  the  agent  in  the 
latter  case  being  liable  to  his  principal  only.     For  non-feasance, 

« 1  Daniel  Neg.  Inst.  §  496.  •  1  Daniel  Neg.  Inst.  §  174. 

•  Walker  «.  Rostron,  9  Mees.  &  *  Bee  ante,  §  539  and  cases  there 
Wels.  411,  420.  cited. 

400 


Chap.  III.]        LIABILITY  OF  AGENT   TO   THIRD    PERSON.  §  570. 

or  mere  neglect  in  the  performance  of  duty,  the  responsibility 
therefor  must  arise  from  some  express  or  implied  obligation 
between  particular  parties  standing  in  privity  of  law  or  contract 
with  each  other.  No  man  is  bound  to  answer  for  such  violation 
of  duty  or  obligation  except  to  those  to  whom  he  has  become 
directly  bound  or  amenable  for  his  conduct.  •  *  *  An  agent 
is  not  responsible  to  third  persons  for  any  negligence  in  the  per- 
formance of  duties  devolving  upon  him  purely  from  his  agency, 
since  he  cannot,  as  agent,  be  subject  to  any  obligations  toward 
third  persons,  other  than  those  of  his  principal.  Those  duties 
are  not  imposed  upon  him  by  law.  He  has  agreed  with  no  one, 
except  his  principal,  to  perform  them.  In  failing  to  do  so  he 
wrongs  no  one  but  his  principal,  who  alone  can  hold  him 
responsible."  * 

§  570.  Same  Subject— Illustrations.  In  accordance  with  this 
rule  it  is  held  that  an  agent  having  charge  of  a  building,  and 
owing  to  his  principal  the  duty  to  keep  it  in  repair,  is  not  liable 
to  a  stranger  who  receives  an  injury  on  account  of  the  agent's 
neglect  to  repair.* 

And  BO  it  has  been  held  that  an  agent  who  has  charge  of  a 
plantation  is  not  liable  to  the  owner  of  an  adjoining  plantation 
for  injuries  caused  from  the  neglect  and  refusal  of  the  agent  to 
keep  open  a  drain,  which  it  was  his  duty  to  his  principal  to  keep 
open.*  The  fact  that  the  motive  of  the  agent  in  failing  or 
refusing  to  perform  his  duty  was  malicious,  and  that  he  intended 
thereby  to  injure  the  other  party  was  held  to  be  immaterial, 
"  for  "  said  the  court,  "  whatever  motive  operated  on  the  agent, 
the  charge  against  him  was  only  that  he  had  failed  to  do,  and 
not  that  he  had  done  anything  maliciously,  and  for  non-feasance 
or  omission  to  act  at  all,  the  agent  is  answerable  only  to  his 
employer."  * 

So  an  agent  who  had  rented  a  house  for  his  principal  and  had 

»  Delaney   t.    Rochereau,    84   La.  and  who  had  agreed  with  the  lessee 

Ann.  1128,  44  Am.  Rep.  456.  to  make  all  necessary  repairs,  were 

»  Delaney  f>.  Rochereau,  84  La.  Ann.  held  liable  for  an  Injury  to  a  stranger 

1123,  44    Am.    Rep.    456;  Carey*.  caused  by  the  defective  condition  of 

Rochereau,   16  Fed.   Rep.   87.     But  the  wharf, 

see  Campbell  v.  Portland  Sugar  Co.,  »  Feltus  v.  Swan,  63  Miss.  415. 

62  Me.  552,  16  Am.  Rep.  503,  where  *  Idem. 
agents  who  had  charge  of  a  wharf 

26  401 


§  571.  THE   LAW   OF    AGENCY.  [Book  lY. 

authorized  the  tenant  to  erect  a  cooking  range  upon  the  premises 
was  held  not  liable  for  an  injury  to  an  adjoining  proprietor  caused 
by  the  use  of  the  range,  because  if  the  agent,  in  permitting  the 
range  to  be  erected,  violated  any  duty,  it  was  a  duty  which  he 
owed  to  his  principal  only  and  not  to  third  persons.* 

b.  For  Misfeasance. 

§  571.  Agency  no  Excuse  for  Misfeasance.  But  an  agent, 
like  any  other  person,  is  bound  in  the  performance  of  his  duty  to 
his  principal  to  recognize  and  respect  the  rights  and  privileges 
of  others,  and  if  he  fails  to  do  so,  either  negligently  or  intention- 
ally, and  thereby  causes  injury  to  a  stranger,  he  is  liable  to  the 
stranger  for  the  damages  sustained,  and  the  fact  that  the  injury 
occurred  while  in  the  performance  of  his  agency  will  constitute 
no  defense."  In  certain  of  such  cases,  the  principal  will  be  liable 
also,  but  that  fact  either  does  not  relieve  the  agent." 

As  is  said  in  the  Louisiana  case  above  referred  to :  "  Every 
one,  whether  he  is  principal  or  agent,  is  responsible  directly  to 
persons  injured  by  his  own  negligence,  in  fulfilling  obligations 
resting  upon  hira  in  his  individual  character  and  which  the  law 
imposes  upon  him  independent  of  contract.  No  man  increases  or 
diminishes  his  obligations  to  strangers  by  becoming  an  agent.  If, 
in  the  course  of  his  agency,  he  comes  in  contact  with  the  person 
or  property  of  a  stranger,  he  is  liable  for  any  injury  he  may  do 
to  either,  by  his  negligence,  in  respect  to  duties  imposed  by  law 
upon  hira   in   common   with   all  other  men.       *     *     »     The 

•  Labadie  v.  Hawley,  61  Tex.  177,  agent  does   not    exist;   they  are  all 

48  Am.  Rep.  278.  wrong    doers,    and    may     be    sued 

sDelaney   v.    Ilochereau,    34    La.  jointly  or  separately;  and  the  liability 

Ann.  1123,' 44  Am.   Rep.    456;    Berg-  of  each  and  all  does  not  cease  until 

hoff  V.  McDonald,  87  Ind.  549;  Crane  payment  has  been  made  or  satisfac- 

«.  Onderdonk,  67  Barb.  (K   Y.)  47;  tion  rendered  or  something  equivalent 

Bennett  v.  Ives.  30  Conn.  329;  Poole  thereto."    Franklin,  C.  in  BerghofE 

V.    Adkisson,    1    Dana     (Ky.)    110;  c.  McDonald.  87  Ind.   549.     See  also 

Campbell  v.    Hillman,    15  B.    Mon.  Bell  v.  Josselyn,  3  Gray  (Mass.)  309, 

(Ky.)  508;  Josselyn  v.  McAllister,  22  63  Am.  Dec.  741;  Nowell  v.  Wright, 

Mich.  800;  Starkweather  t;.  Benjamin,  3  Allen  (Mass.)  169;   Gilmore  v.  Dris- 

32  Mich.    306;   Weber  ®.    Weber,  47  coll,  122  Mass.  208;   Osborne  v.  Mor- 

Mich.  569;   Hedden   v.   Griffin,   136  gan,  130  Mass.  103,  39  Am.  Rep.  437; 

Mass.  229,  49  Am.  Rep.  25;  Reed  v.  Campbell  v.  Portland  Sugar  Co.,  63 

Petterson,    91    111.     288,     297.     "In  Maine,  562,  16  Am.  Rep.  508.    But  see 

torts,"  said  a  learned  judge  in  Indi-  Leuthold  v.  Fairchild,  85  Minn.  111. 
ana,  "the  relation  of  principal  and         »  Weber*.  Weber,  47  Mich.  569. 

402 


Chap.  III.]        LIABILITY  OF  AGENT   TO   THIRD   PERSON.  §  572. 

whole  doctrine  on  that  subject  culminates  in  the  proposition  that 
wherever  the  agent's  negligence,  consisting  in  his  own  wrong 
doing,  therefore  in  an  act,  directly  injures  a  stranger,  then  such 
stranger  can  recover  from  the  agent  damages  for  the  injury.'" 

§  572.  Same  Subject— Distinction  between  Non-feasance  and 
Misfeasance.  Some  confusion  has  crept  into  certain  cases  from 
a  failure  to  observe  clearly  the  distinction  between  non-feasance 
and  misfeasance.  As  has  been  seen,  the  agent  is  not  liable  to 
strangers  for  injuries  sustained  by  them  because  he  did  not  under- 
take the  performance  of  some  duty,  which  he  owed  to  his  prin- 
cipal and  imposed  upon  him  by  his  relation,  which  is  non-feasance. 
Misfeasance  may  involve,  also,  to  some  extent  the  idea  of  not 
doing,  as  where  the  agent  while  engaged  in  the  performance  of 
his  undertaking  does  not  do  something  which  it  was  his  duty  to 
do  under  the  circumstances, — does  not  take  that  precaution,  does 
not  exercise  that  care, — which  a  due  regard  for  the  rights  of  others 
requires.  All  this  is  not  doing,  but  it  is  not  the  not  doing  of 
that  which  is  imposed  upon  the  agent  merely  by  virtue  of  his 
relation,  but  of  that  which  is  imposed  upon  him  by  law  as  a 
responsible  individual  in  common  with  all  other  members  of 
society.  It  is  the  same  not-doing  which  constitutes  actionable 
negligence  in  any  relation. 

Upon  this  distinction,  the  language  of  Chief  Justice  Gray 
may  be  noticed  to  advantage :  "  It  is  often  said  in  the  books 
that  an  agent  is  responsible  to  third  persons  for  misfeasance  only, 
and  not  for  non-feasance.  And  it  is  doubtless  true  that  if  an 
agent  never  does  anything  towards  carrying  out  his  contract  with 
his  principal,  but  wholly  omits  or  neglects  to  do  so,  the  principal 
is  the  only  person  who  can  maintain  any  action  against  him  for 
the  non-feasance.  But  if  the  agent  once  actually  undertakes  and 
enters  upon  the  execution  of  a  particular  work,  it  is  his  duty 
to  use  reasonable  care  in  the  manner  of  executing  it,  so  as  not 
to  cause  any  injury  to  third  persons  which  may  be  the  natural 
consequence  of  his  acts  ;  and  he  cannot  by  abandoning  its  execu- 
tion midway,  and  leaving  things  in  a  dangerous  condition,  ex- 
empt himself  from  liability  to  any  person  who  suffers  injury  by 
reason  of   his  having  so  left  them  without  proper  safeguards. 

•Bermudkz,  0.  J.  in  Delaney  v.  Rochereau,  34  La.  Ann.  1123, 44  Am.  Rep.  456. 

403 


§  573.  THE    LAW    OF   AGENOT.  [Book  IV. 

This  is  not  non-feasance  or  doing  nothing,  but  it  is  misfeasance, 
doing  improperly."  * 

This  distinction  may  also  be  further  illustrated  by  the  language 
of  Judge  Metoalf  in  a  case  where  an  agent  had  been  charged 
with  negligence  in  admitting  water  into  the  pipes  in  a  building 
without  first  seeing  that  they  were  in  a  proper  condition.  "  Non- 
feasance," said  the  learned  judge,  "  is  the  omission  of  an  act  which 
a  person  ought  to  do  ;  misfeasance  is  the  improper  doing  of  an  act 
which  a  person  might  lawfully  do  ;  and  malfeasance  is  the  doing 
of  an  act  which  a  person  ought  not  to  do  at  all.  The  defen- 
dant's omission  to  examine  the  state  of  the  pipes  in  the  house 
before  causing  the  water  to  be  let  on  was  a  non-feasance.  But 
if  he  had  not  caused  the  water  to  be  let  on,  that  non-feasance 
would  not  have  injured  the  plaintiff.  If  he  had  examined  the 
pipes  and  left  them  in  a  proper  condition,  and  then  caused  the 
letting  on  of  the  water,  there  would  have  been  neither  non-fea- 
sance nor  misfeasance.  As  the  facts  are,  the  non-feasance  caused 
the  act  done  to  be  a  misfeasance.  But  from  which  did  the 
plaintiff  suffer?  Clearly  from  the  act  done,  which  was  no 
less  a  misfeasance  by  reason  of  its  being  preceded  by  a  non- 
feasance."' 

§  573.  Same  Subject— Principal's  Knowledge  or  Direction  no 
Defense.  It  does  not  relieve  the  agent  that  the  wrong  was  com- 
mitted with  the  knowledge  of  the  principal,  or  by  his  consent  or 
express  direction,*  because  no  one  can  lawfully  authorize  or 
direct  the  commission  of  a  wrong.  A  fortiori  is  it  no  defense 
that  the  agent  in  committing  the  wrong  violated  his  instructions 
from  his  principal.*  Neither  is  it  material  that  the  agent  de- 
rives no  personal  advantage  from  the  wrong  done.*  All  persons 
who  are  active  in  defrauding  or  injuring  others  are  liable  for 
what  they  do,  whether  they  act  in  one  capacity  or  another.  No 
one  can  lawfully  pursue  an  employment  known  to  be  fraudulent, 
and  while  it  may  be  true  that  the  principal  is  often  liable  for  the 

>  In  Osborne  v.  Morgan.  130  Mass.  Dec.  498;  Baker  v.  Wasson,  53  Tex. 

103,  39  Am.  Rep.  437.  157;  Johnson  ».  Barber,  5  Gil.  (111.) 

s'ln   Bell    «.     Josselyn,     3    Gray  425,  50  Am.  Dec.  416. 

(Mass.)  309,  63  Am.  Dec.  741.  ♦  Starkweather    €.     Benjamin,    88 

3  Weber  v.    Weber,  47  Mich.  569;  Mich.  806 ;  Johnson  c.  Barber,  m-pra. 

Lee  B.  Matthews,  10  Ala.  682,  44  Am.  •  Weber  «.  Weber,  myra. 

404 


Chap.  III.]         LIABILITY  OF  AGENT   TO    THIBD   PERSON.  §  574. 

'fraud  of  his  agent,  though  himself  honest,  his  own  fraud  will 
not  exonerate  his  fraudulent  agent.' 

The  fact  that  the  agent  acted  in  good  faith,  supposing  the 
principal  had  a  legal  right  to  have  done  what  was  done,  is  no 
'defense.  He  who  intermeddles  with  property  not  his  own 
must  see  to  it  that  he  is  protected  by  the  authority  of  one 
who  is  himself,  by  ownership  or  otherwise,  clothed  with  the 
authority  he  attempts  to  confer." 

§  574.  Same  Subject— Illustrations.  In  accordance  with  these 
principles  it  is  held  that  an  agent  who,  for  his  principal,  wrong, 
fully  takes  or  detains  or  sells  the  goods  of  another,  is  personally 
liable  in  an  action  of  replevin,  trover  or  other  action  for  the 
tort,'  even  though  he  acted  in  good  faith,  supposing  the  goods  to 
be  his  principal's,  and  although  he  has  delivered  the  property  to 
his  principal.*  So  an  agent  who  negligently  sets  fire  to  another's 
property,  is  liable  for  the  injury  although  it  was  done  under  his 
principal's  direction.'  An  agent  who  fraudulently  induces  a  per- 
son to  take  out  an  insurance  policy  is  liable  to  an  action  for  the 
injury  sustained ;  •  in  such  a  case  the  party  deceived  has  two 
remedies ;  he  may  retain  the  policy  and  sue  for  damages,  or  he 
may  rescind  the  contract  and  recover  from  the  agent  the  premium 
paid.  So  an  insurance  agent  who  misrepresents  material  facts  to 
the  insured  by  reason  of  which  the  insured  loses  his  claim  against 
the  company  for  a  loss  sustained,  is  personally  responsible  to  the 
insured  for  the  amount.''     An  agent  is  responsible  individually 

'  "Weber   v.   Weber,  supra;  Stark-  »upra;  Spraights  v.    Hawley,  supra; 

weather©.  Benjamin,  «ttj9ra;  Josselyn  McCombie  v.   Davies,   6  East.   538; 

c.  McAllister,  22  Mich.  300.  Baldwin  v.  Cole,  6  Mod.  212;  Thorp 

•Spraights  «.   Hawley,   89  N.  Y.  «.  Burling,    11   Johns.    (N.  Y.)  285; 

441,  100  Am.   Dec.  452;  Kimball  v.  Farrar  v.  Chauffetete,  5  Den.  (N.  Y.) 

Billings,    55  Me.    147,    92  Am.  Dec.  527;    Pierson    v.    Graham,    83   Eng. 

581;  Everett  «.  Coffin,  6  Wend.  (N.  Com.    L,    468;    Everett  v.   Coffin,  6 

Y.)  609,  22  Am.  Dec.  551;  Williams  Wend.  (N.  Y.)  609,  22  Am.  Dec.  551; 

©.Merle.    11   Wend.   (N.  Y.)  80,  25  Spencer©.  Blackman,   9  Wend.   (N. 

Am.  Dec.  604.  Y  )  167;  Williams  v.  Merle,  11  Wend. 

»  Berghoff  v.  McDonald,   87    Ind.  (N.  Y.)  80,  25  Am   Dec,  604. 

549;  Kimball  v.  Billings,  55  Me.  147,  »  Johnson  v.    Barber,   5   Gil.  (111.) 

92  Am.  Dec.  581;   Spraights  v.  Haw-  425,  50  Am.  Dec.  416. 

ley,  39  N.  Y.  441,  100  Am.  Dec.  452.  •  Hedden  v.  Griffin,  136  Mass.  229, 

*  Lee  V.  Mathews,   10  Ala.  682,  44  49  Am.  Rep.  25. 

Am.  Dec.    498;   Perkins  v.  Smith,  1  '  Kroeger  v.  Pitcairn,  101  Penn.  St. 

Wils.    328;    Stephens    v.    Elwall,    4  811,  47  Am.  Rep.  718. 
Maule  &  Sel.  259;  Kimball  ©.  Billings, 

405 


§  575.  THE    LAW    OF    AGENCY.  [Book    IV. 

to  the  purchaser  for  a  fraud  committed  by  him  in  the  sale  of 
property,  though  he  does  not  profess  to  sell  the  property  as  his 
own,  but  acts  throughout  in  his  capacity  as  an  agent.'  An  agent 
who  negligently  directs  water  to  be  admitted  to  water  pipes  in 
a  room  in  a  house  owned  by  his  principal,  but  which  is  under  his 
general  management,  without  first  examining  the  condition  of 
the  pipe  is  liable  to  the  tenant  of  a  room  below  for  injury  result- 
ing therefrom.'  So  a  surveyor  is  personally  liable  for  a  trespass 
committed  by  him,  though  the  act  was  done  in  behalf  and  under 
the  direction  of  a  highway  board  by  whom  he  was  employed.' 

§  575.  Liability  in  respect  to  Subagents.  Whether  a  sub- 
agent  is  to  be  considered  the  agent  of  the  agent  or  of  the  princi- 
pal is  a  question  which  has  been  already  considered.*  Where  in 
accordance  with  the  rules  there  laid  down  it  is  determined  that 
the  subagent  is  to  be  regarded  as  the  agent  of  the  agent,  the  lat- 
ter will  be  liable  to  the  subagent,  the  principal  and  third  persons 
as  a  principal,' — a  subject  hereafter  to  be  discussed.  But  where, 
on  the  other  hand,  the  subagent  is  found  to  be  the  agent  of  the 
principal,  then  the  intermediate  agent  will  not  be  liable  to  the 
subagent  or  to  third  persons  as  a  principal.' 

The  subagent,  like  the  agent,  is  personally  responsible  to  third 
persons  for  his  own  misfeasances,  although  the  agent  or  the  prin- 
cipal may  be  responsible  also.^  He  would  not,  however,  be  liable 
to  third  persons  for  non-feasance.  On  these  subjects,  the  rules 
laid  down  above  respecting  the  liability  of  the  agent  to  third 
persons,  apply,  mutatis  mutandis^  to  the  subagent. 

S  576.  Same  Subject— Agent  who  conceals  Principal  liable  as 
Principal  to  Subagent.  The  rule  that  an  agent  who  conceals 
his  principal  may  himself  be  charged  as  principal,  has  been  ap- 
plied in  favor  of  subagents  who  have  received  injuries  while  in 
the  employment  of  the  agent  as  an  ostensible  principal.     In  such 

»  Campbell  v.  Hillman,  15  B.  Mon.  *  See  ante,  §  197. 

(Ky.)  508,  61  Am.  Dec.  195.  «  See  ante,  %%  192-197. 

a  Bell  V.   Josselyn,    3  Gray  (Mass.)  •  Stone  v.  Cartwright,  6  T.  R.  411. 

809,  63  Am    Dec.  741.     But  see  Bis-  '  Stone  v.  Cartwright,  supra;  Busb 

Bell  V.  Roden,  84  Mo.  63,  84  Am.  Dec.  •.  Steinman,  1  Bos.  &  Pul.  404;  Den- 

71^  ison^.    Seymour,  9  Wend.  (N.  Y.)  9; 

•Mill  V.  Hawker,  L.  R.  10  Ex.  92,  Rapson  v.   Cubitt,   9  M.  &  W.  710; 

12  Eng.  Rep.  (Moak)  538.  Quarman  v.  Burnett,  6  M.  &  W.  499. 

406 


Chap.  III.]        LIABILITY  OF  AGENT   TO    THIKD    PERSON.  §  578. 

cases  the  agent  is  liable  to  the  subagent  in  the  same  manner  as 
though  he  were  in  fact  the  real  principal.' 


B.    PUBLIC  AGENTS. 
1. 

LIABILITY   FOB  THEIB  OWN   TORTS. 

§  577.  In  general— Classification.  Public  agents  may  be  divi- 
ded into  two  classes  based  upon  the  character  and  manner  in 
which  they  serve  the  public.  One  class  embraces  those  whose 
duty  is  owing  primarily  to  the  public  collectively  and  not  to  any 
particular  individual ;  who  act  for  the  public  at  large  and  who 
are  ordinarily  paid  out  of  the  public  treasury.  The  other  class 
includes  those  who,  while  they  may  not  owe  to  the  public  as  such 
the  performance  of  any  given  duty,  become  by  virtue  of  an  em- 
ployment by  an  individual  to  do  some  act  for  him  in  an  official 
capacity,  under  a  special  and  particular  obligation  to  him  as  an 
individual.  This  class  usually  receive  their  compensation  from 
fees  paid  by  each  individual  who  employs  them. 

Another  classification  is  made  based  upon  the  nature  of  the 
duties  to  be  performed.  One  class  includes  those  whose  duties 
are  of  a  -purely  Judicial  nature ;  another,  those  whose  duties  are 
of  a  quasi-judicial  or  discretionary  character ;  another,  those 
whose  duties  are  legislative,  and  still  another  those  whose  duties 
are  ministerial  in  their  nature. 

In  respect  to  this  classification  it  will  be  found  that  it  is  not 
always  easy  to  determine  whether  the  given  duty  is  judicial  oi 
discretionary,  or  whether  it  is  ministerial  in  its  nature,  particu- 
larly in  view  of  the  fact  that  the  same  officer  may  often,  in 
the  same  transaction  even,  be  compelled  to  exercise  both 
functions. 

It  will  be  evident  that  the  question  of  the  liability  of  the 
public  agent  may  involve  not  only  his  responsibility  for  his 
own  torts,  but  for  those  of  his  subordinates,  assistants  and 
employees. 

§  578.     Wo  Action  by  Individual  for  Breach  of  Duty  owing 

*  Malone  «.  Morton,  84  Mo.  436;  McQowan  «.  St.  Louis,  &c.  R  R.  Co.,  61 
Mo.  528. 

407 


g  579.  THE    LAW    OF   AGENCY.  [Book  lY. 

solely  to  the  Public.  The  first  question  for  determination  in  con- 
sidering the  liability  of  a  public  officer  to  private  action,  is  whether 
such  officer  owes  any  duty  to  the  individual.  Public  officers  are 
chosen  upon  public  grounds ;  they  are  part  of  the  machinery  of 
the  o-overnment,  and  they  owe  the  performance  of  the  duties  im- 
posed upon  them  primarily  to  the  public. 

Many  of  them  in  the  course  of  the  performance  of  their  duties, 
incur  obligations  to  individuals,  but  these  obligations  are  so  in- 
curred as  a  part  of  their  public  duty  attaching  to  these  individ- 
uals as  distributive  members  of  the  public,  and  not  because  the 
performance  of  these  duties  for  these  particular  individuals,  was 
the  object  and  end  of  their  appointment. 

Other  of  the  public  agents  may  never  come  under  any  obliga- 
tion to  individuals  at  all. 

Unless,  therefore,  it  appears  that  the  duty  violated  was  one 
owing  to  the  individual  complaining  of  its  non-performance,  and 
unless  it  appears  that  he  has  sustained  a  special  injury  therefrom^ 
no  civil  action  can  be  maintained  against  the  officer.  Kecourse 
in  such  a  case  must  be  had  by  a  public  prosecution.^ 

8  579.  Liable  for  Wrongs  committed  in  private  Capacity.  It 
will  be  understood  that  it  is  the  liability  of  public  agents  for 
wrongs  committed  while  they  were  acting,  or  assuming  to  act,  in 
their  public  capacity,  that  is  now  to  be  considered,  and  not  their 
liability  for  those  wrongs  which  they  may  commit  as  private  in- 
dividuals. For  the  latter  they  are,  of  course,  liable  like  any  other 
private  individuals,  and  their  official  character  affords  them  no  de- 
fense. 

1.  Judicial  Officers. 
%  580.  Judicial  OflB.cers  not  liable  when  acting  within  their 
Jurisdiction.  It  is  a  general  principle  of  the  highest  importance 
to  the  proper  administration  of  justice  that  a  judicial  officer,  in 
exercising  the  authority  vested  in  him,  shall  be  free  to  act  upon 
his  own  convictions  without  apprehension  of  personal  conse- 
quences to  himself.  No  civil  action,  therefore,  can  be  sustained 
against  a  judicial  officer  by  one  claiming  to  have  been  injured  by 
his  judicial  action  within  his  jurisdiction.*     From  the  very  nature 

»  Moss  V.  Cummings,  44  Mich.  359;  «  Randall  v.  Brigham,7  Wall.  (U.S.) 
Butler  v.  Kent.  19  Johns.  (N.  Y.)  223,  535;  Bradley  v.  Fisher,  13  Wall.  (XJ. 
10  Am.Dec.219;  Cooley  on  Torts,  379.      8.)  335;  Fray  «.  Blackburn,  8  Best  & 

408 


Chap.  III.]         LIABILITY  OF  AGENT   TO   THIRD    PERSON. 


§  580. 


of  the  case,  he  is  called  upon  to  exercise  his  judgment,  and  his 
duty  to  the  individual  is  performed  when  he  has  exercised  it, 
however  erroneous  or  disastrous  in  its  consequences  it  may  appear 
either  to  the  party  or  to  others. 


Smith,  576;  Yates  v.  Lansing,  5 
Johns.  (N.  Y.)  282;  9  Id.  395,  6  Am. 
Dec.  290;  Lange  v.  Benedict,  73  N. 
Y.  12,  29  Am.  Rep.  80;  Floyd  v.  Bar- 
ker, 12  Coke  25;  Hire  v.  Sedgwick,  2 
Roll.  109;  Hammond  v.  Howell,  1 
Mod.  184;  Groenvelt  v.  Burwell,  1 
Salk.  396,  1  Ld.  Raym.  454;  Miller  «. 
Scare,  2  Bl.  1145;  Mostyn©  Fabrigas, 
1  Cowp.  172;  Phelps  v.  Sill,  1  Day 
(Conn.)  315;  Morgan  v.  Dudley,  18  B. 
Mon.  (Ky.)  693,  68  Am.  Dec.  735; 
Piper  V.  Pearson,  2  Gray  (Mass.)  120, 
61  Am.  Dec.  438;  Clarke  v.  May,  2 
Gray  (Mass.)  410,  61  Am.  Dec.  470; 
Ela  V.  Smith,  5  Gray  (Mass.)  136,  66 
Am.  Dec.  356;  Barksloo  v.  Randall,  4 
Blackf.  (Ind.j  476,  32  Am.  Dec.  46; 
Pratt  B.  Gardner,  2  Cush.  (Mass.)  63, 
48  Am,  Dec.  652;  Bailey  v.  Wiggins, 
5  Harr.  (Del.)  462,  60  Am.  Dec.  650; 
Terry  v.  Huntington,  Hard.  480; 
Bushell's  Case,  1  Mod.  119;  Gwinne 
«.  Pool,  Lutw,  290;  Ackerly  v.  Par- 
kinson, 3  Maule  &  S.  411;  Garnett  d. 
Ferrand,  6  B.  &  C.  611 ;  Miller  v. 
Hope,  2  Shaw,  125;  Dicas  v.  Lord 
Brougham,  6  C.  &  P.  249;  Houldenc. 
Smith,  14  Ad.  &  El.  (N.  S.)  841,  19 
L.  J.  Q.  B.  170;  Ward  v.  Freeman,  2 
Ir.  C.  L.  Rep.  460;  Kemp  v.  Neville, 
10  C.  B.  (N.  S.)523;  Scott  v.  Stansfield, 
8  L.  R.  Ex.  220;  Butler  v.  Potter,  17 
Johns.  (N.  Y.)  145;  Little  v.  Moore,  4 
N.  J.  74;  Hamilton  v.  Williams,  26 
Ala,  527;  Craig  «,  Burnett,  33  Ala, 
728;  Carter  v.  Dow,  16  Wis.  298; 
Wall  V.  Trumbull,  16  Mich.  228; 
Clark  V.  Holdridge,  58  Barb.  (N.  Y.) 
61 ;  McCall®.  Cohen,  16  S.Car.  445, 42 
Am.  Rep.  641 ;  Grove  v.  Van  Duyn, 
44  N.  J,  L.  654;  Busteed  v.  Parsons, 
54  Ala.  393,  25  Am.  Rep.  688;  Rains 


«.  Simpson,  50  Tex.  495,  82  Am.  Rep. 
609;  Grider  v.  Tally,  77  Ala.  422,  54 
Am.  Rep.  65;  Lowther  «.  Earl  of 
Radnor,  8  East.  113;  Pike  v.  Carter,  3 
Bing.  78;  Basten  v.  Carew,  3  B.  «&  C. 
652;  Holroyd  v.  Breare,  2  B.  &  Aid. 
473;  Fawcett  v.  Fowlis,  7  B,  «&  C. 
394;  Evans  v.  Foster,  1  N,  H.  374; 
Burnham  v.  Stevens,  33  N.  H.  247; 
Jordan  v.  Hanson,  49  N.  H.  199.  6 
Am.  Rep.  508;  Ramsey  v.  Riley,  13 
Ohio,  157;  Stone  v.  Graves,  8  Mo. 
148,  40  Am.  Dec.  131;  Lenox  v. 
Grant,  8  Mo.  254;  Taylors.  Doremus, 
16  N.  J,  473;  Morris  v.  Carey,  27  N, 
J.  377;  Mangold  v.  Thorpe,  33  N.  J. 
134;  Hamilton  v.  Williams,  26  Ala. 
527;  Walker  v.  Hallock,  32  Ind.  239; 
Morrison  v.  McDonald,  21  Me.  550; 
Downing  v.  Herrick,  47  Me.  462; 
Londegan  v.  Hammer,  30  Iowa,  508; 
Fuller  V.  Gould,  20  Vt.  643;  Ely  v. 
Thompson,  3  A.  K.  Marsh.  70;  Reid 
«.  Hood,  2  N.  &  McCord  (S.  C.)  168, 
10  Am.  Dec.  582;  Wilson  v.  Mayor,  1 
Den.  (N.  Y.)  595,  43  Am.  Dec.  719; 
East  River  Gas  L.  Co.  e.  Donnelly, 
93  N.  Y.  557;  Steele  v.  Dunham,  26 
Wis.  393;  Porter  v.  Haight,  45  Cal. 
631;  Harman  c,  Brotherson,  1  Den. 
(N.  Y.)  537;  Palmer  v.  Lawrence,  6 
Lans.  (N.  Y.)  282;  Wertheimer  v. 
Howard,  30  Mo.  420;  Chickering  v. 
Robinson,  3  Cush.  (Mass.)  543;  Way 
V.  Townsend,  4  Allen  (Mass.)  114; 
Millard  v.  Jenkins,  9  Wend.  (N,  Y.) 
298;  Wickware  v.  Bryan,  11  Wend. 
(N.  Y.)  545;  Raymond  v.  Bolles,  11 
Cush.  (Mass.)  315;  Lilienthal  v.  Camp- 
bell, 22  La.  Ann.  600;  Cunningham  ». 
Bucklin,  8  Cow,  (N.  Y.)  178,  18  Am. 
Dec.  432;  Pickett  v.  Wallace,  57  Cal. 
555. 


409 


R  581^  THE    LAW    OF    AGENCY.  [Book  IV. 

Judicial  offices  would  either  go  unfilled,  or  they  would  be  filled 
only  by  truckling,  time-serving  men,  if  the  judicial  officer  might 
be  called  upon,  by  every  person  disappointed  by  his  judgment,  to 
defend  that  judgment  at  his  peril  before  some  other  court  or  tri- 
bunal. 

As  has  been  well  said  by  Lord  Tenterden  :  "In  the  imperfec- 
tion of  human  nature,  it  is  better  that  an  individual  should  suf- 
fer a  wrong,  than  that  the  course  of  justice  should  be  impeded 
and  fettered  by  constant  and  perpetual  restraint  and  apprehension 
on  the  part  of  those  who  are  to  administer  it." ' 

§  581.  Liability  not  affected  by  Motive.  Nor  can  this  exemp- 
tion of  judicial  officers  from  civil'  liability  be  affected  by  the  mo- 
tives with  which  they  are  alleged  to  have  performed  their  duties. 
If  the  officer  be  in  fact  corrupt,  the  public  has  its  remedy,  but 
the  defeated  suitor  can  not  attempt  to  redress  himself  in  an  ac- 
tion against  the  judge,  by  alleging  that  the  judgment  against  him 
was  the  result  of  corrupt  or  malicious  motives."  The  reasons  for  this 
rule  have  been  well  stated  by  a  distinguished  judge,  as  follows: 
"  Controversies  involving  not  merely  great  pecuniary  interests, 
but  the  liberty  and  character  of  the  parties,  and  consequently  ex- 
citing the  deepest  feelings,  are  being  constantly  determined  in 
the  courts,  in  which  there  is  great  conflict  in  the  evidence  and 
great  doubt  as  to  the  law  which  should  govern  their  decision.  It 
is  this  class  of  cases  which  imposes  upon  the  judge  the  severest 
labor,  and  often  creates  in  his  mind  a  painful  sense  of  responsi- 
bility. Tet  it  is  precisely  in  this  class  of  cases  that  the  losing 
party  feels  most  keenly  the  decision  against  him,  and  most  read- 
ily accepts  anything,  but  the  soundness  of  the  decision,  in  ex- 
planation of  the  action  of  the  judge.  Just  in  proportion  to  the 
strength  of  his  convictions  of  the  correctness  of  his  own  view 
of  the  case,  is  he  apt  to  complain  of  the  judgment  against  him, 
and  from  complaints  of  the  judgment,  to  pass  to  the  ascription 

» In  Garnett  v.  Ferrand,  6  B.  &  0.  2  Cush.  (Mass.)  63,  48  Am.  Dec.  652; 

g-£j  Cunningham  v.   Bucklin,  8  Cow.  (N. 

2  Bradley  v.  Fisher,  13  Wall.  (U.  S.)  Y.)  178,  18  Am.    Dec.  432;   Stone  v. 

335;  Fray   v.  Blackburn,   3  Best  &  Graves,  8  Mo.  148,  40  Am.  Dec.  131; 

Smith,  576;  Floyd  v.  Barker,  12  Coke  Henke  v.  McCord.  55  Iowa  378;  Jones 

25;  Rains  v.  Simpson,  50  Tex.  495,  32  t».  Brown,  54  Iowa,  74.  37  Am.  Rep. 

Am.  Rep.  609;  Weaver  «.  Devendorf,  185;   Green  t?.  Talbot,   36  Iowa  499; 

3  Den.  (N.  Y.)  117;  Pratt  v.  Gardner,  Wassonu.  Mitchell,  18  Iowa  153. 

410 


Oliap.  111.]       LIABILITY    OF    AGENT   TO   THIRD    PERSON.  §  582. 

of  improper  motives  to  the  judge.  When  the  controversy  in- 
volves questions  affecting  large  amounts  of  property,  or  relates 
to  a  matter  of  general  public  concern,  or  touches  the  interests  of 
numerous  parties,  the  disappointment  occasioned  by  an  adverse 
decision  often  finds  vent  in  imputations  of  this  character,  and 
from  the  imperfection  of  human  nature,  this  is  hardly  a  subject 
of  wonder.  If  civil  actions  could  be  maintained  in  such  cases 
against  the  judge,  because  the  losing  party  should  see  fit  to  allege 
in  his  complaint  that  the  acts  of  the  judge  were  done  with  parti- 
ality, or  maliciously  or  corruptly,  the  protection  essential  to  ju- 
dicial independence  would  be  entirely  swept  away.  Few  persons 
sufiiciently  irritated  to  institute  an  action  against  a  judge  for  his 
judicial  acts,  would  hesitate  to  ascribe  any  character  to  the  acts 
which  would  be  essential  to  the  maintenance  of  the  action. 

If  upon  such  allegations  a  judge  could  be  compelled  to  answer 
in  a  civil  action  for  his  judicial  acts,  not  only  would  his  office  be 
degraded  and  his  usefulness  destroyed,  but  he  would  be  subjected 
for  his  protection,  to  the  necessity  of  preserving  a  complete  re- 
cord of  all  the  evidence  produced  before  him  in  every  litigated 
ease,  and  of  the  authorities  cited  and  arguments  presented,  in 
order  that  he  might  be  able  to  show  to  the  judge  before  whom  he 
might  be  summoned  by  the  losing  party, — and  that  judge  per 
haps  one  of  an  inferior  jurisdiction, — that  he  had  decided  as  he 
did  with  judicial  integrity;  and  the  second  judge  would  be  sub- 
jected to  a  similar  burden,  as  he  in  his  turn  might  also  be  held 
amenable  by  the  losing  party."  ^ 

§  582.  This  Immunity  extends  to  Judicial  Ofllcers  of  all 
Grades.  This  exemption  from  civil  action  extends  to  every  ju- 
dicial otficer,  from  the  highest  judge  in  the  land  to  the  humblest 
justice  who  tries  petty  cases.'  Whoever  is  invested  with  judicial 
powers,  whether  of  high  or  low  degree,  cannot  be  called  to  ac- 
count to  the  private  individual  for  his  acts  within  his  jurisdiction 
although,  as  has  been  seen,  the  aggrieved  party  may  allege  that 
the  act  was  corrupt  or  malicious.^  For  such  acts,  the  officer  must 
account  only  to  his  conscience  and  the  State. 

1  Field,  J.  in  Bradley  v.  Fisher,  13  (Mass.)  63,  48  Am,  Dec.  652;  Carter  t. 
Wall.  (U.  S.)  385.  Dow.  16  Wis.  298;  Wallc.  Trumbull, 

2  Garnett    v.    Ferrand,    6  B.  &  C.       16  Mich.  228. 

611;  Butler®.  Potter,  17  Johns.  (N  'See    cases    cited    under    Note  2 

Y.)  145;  Pratt  v.   Gardner,  2  Gush.      supra.     There  are  some  dicta  to  the 

411 


§  583.  THE    LAW    OF    AGENCY.  [Book    IV. 

§  583.  Jurisdiotion  essential.  But  in  order  that  there  shall 
be  this  immunity  from  civil  action,  the  act  done  by  the  officer 
must  have  been  done  in  a  matter  within  his  jurisdiction.'  By 
this  is  meant,  when  the  officer  assumed  to  do  the  act  as  a  judge, 
that  he  had  judicial  jurisdiction  of  the  person  acted  upon,  and  of 
the  subject-matter  as  to  which  it  was  done.* 

Jurisdiction  of  the  person  exists  when  the  person  acted  upon 
is  before  the  judge,  either  constructively  or  in  fact,  by  reason  of 
the  service  upon  him  of  appropriate  process  duly  issued  and  ex- 
ecuted.* Jurisdiction  of  the  subject-matter  exists  when  the  of- 
ficer possesses  the  powers  lawfully  conferred  to  deal  with  the 
general  subject  involved  in  the  action.* 

Jurisdiction  of  the  subject-matter  does  not  mean  that  the 
officer  has  by  the  appropriate  and  proper  procedure  brought  the 
particular  matter  in  question  within  his  jurisdiction ; — whether 
he  has  done  so  or  not  is  often  the  point  most  difficult  to  deter- 
mine ; — but  it  means  that  he  is  by  law  invested  with  authority  to 
deal  with  similar  cases, — with  cases  of  that  class. 

§  584.  Act  must  be  confined  -within  his  Jurisdiction.  And 
not  only  must  the  judge  have  jurisdiction  of  the  person  and  the 
subject-matter,  but  the  act  must  be  confined  within  that  jurisdic- 
tion. It  must  have  been  done  as  a  judge  in  his  judicial  capacity, 
and  within  his  jurisdiction.'  "For,"  as  has  been  said,  "it  is 
plain  that  the  fact  that  a  man  sits  in  the  seat  of  justice,  though 
having  a  clear  right  to  sit  there,  will  not  protect  him  in  every 
act  which  he  may  choose  or  chance  to  do  there.  Should  such  an 
one,  rightfully  holding  a  court  for  the  trial  of  civil  actions,  order 
the  head  of  a  by  stander  stricken  off,  and  be  obeyed,  he  would  be 
liable."  • 

So  where  a  judge  was  charged  with  maliciously  conspiring  with 
others  to  institute  in  his  court  a  malicious  prosecution  against  the 

contrary,  but  they  are  not  sustained  of  law  to  act  officially  in  the  matter 

by  the  authorities.     The  principle  is  then    in    hand."    Cooley    on  Torts, 

of  universal  application  under  the  p  417. 

conditions  named— judicial  duty,  jur-  ^  Lange  v.  Benedict,  supra. 

Isdiclion.  *  Hunt  v.  Hunt,  72  N.  Y.  217,28 

'  See  cases  cited  under  note  2,  §  680,  Am.  Rep.  129. 

iupra.  5  Lange  v.  Benedict,  73  N.  T.  12, 

2  Lange  «.  Benedict,   73  N.   T.  12,  29  Am.  Rep.  80. 

29  Am.  Rep.  80.     "  Jurisdiction  in  a  •  Folger,  J.  in  Lange  v.  Benedict, 

Judge  may  be  defined  as  the  authority  supra. 

412 


Ciiap.  III.]        LIABILITY  OF  AGENT   TO   THIRD    PERSON.  §  585. 

plaintiff,  it  was  held  that  the  defendant's  judicial  character  was 
no  defense,  for  the  act  of  entering  into  such  an  agreement  was 
not  done  in  the  course  of  any  judicial  proceeding  or  in  the  dis- 
charge of  any  judicial  function  or  duty.' 

§  585.  Same  Subject — When  Jurisdiction  presumed— Superior 
and  inferior  Courts.  A  marked  distinction  is  made  by  the  law 
between  courts  of  general  and  superior  jurisdiction,  and  those  of 
limited  and  inferior  jurisdiction.  In  favor  of  the  former,  it  is 
presumed  that  they  have  not  acted  without  jurisdiction.  Who- 
ever assails  them,  therefore,  upon  that  ground,  must  be  prepared 
to  show  wherein  the  lack  of  jurisdiction  lies.*  On  the  contrary, 
no  such  presumption  is  indulged  in  favor  of  courts  whose  juris- 
diction is  limited  and  inferior.  In  such  a  case  the  jurisdiction 
must  be  made  to  appear, — that  is,  it  must  appear  by  the  record 
itself.  If,  therefore,  the  court  acquires  jurisdiction  only  in  a 
certain  way,  or  by  certain  procedure,  or  upon  a  certain  contin- 
gency, this  prerequisite  must  appear  upon  the  face  of  the  pro- 
ceedings to  have  existed  in  the  way  and  to  the  extent  specified, 
or  the  proceedings  must  fail.  Whoever  relies  upon  the  judgment 
of  such  a  court  must  establish  every  fact  necessary  to  give  it 
jurisdiction.* 

This  distinction  becomes  of  great  importance  in  determining 
the  liability  of  the  judicial  officer  who  has  erroneously  assumed 

•  Stewart  v.  Cooley,  23  Minn.  847,  Dec.  439;  Reynolds  e.  Stansbury,  20 
28    Am.    Rep.   690.     As  to  this  case      Ohio  344,  55  Am.  Dec.  459. 

Judge  CooLET  says:  "The  wrong-  •Rossiter  ».  Peck,  8  Gray  (Mass.) 
ful  act  on  the  part  of  the  judge  here  539;  Case®.  Woolley,  6  Dana  (Ky.) 
must  have  consisted  in  the  issuing  of  17,  32  Am.  Dec.  54;  Bloom  r.  Bur- 
process;  and  as  to  that  he  could  have  dick,  1  Hill  (N.  Y.)  130,  37  Am.  Dec. 
had  no  discretion,  if  the  complaint  299;  Lowry  «.  Erwin,  6  Rob.  (La.) 
was  sufficient,  or  if  he  had,  it  was  a  192,  39  Am.  Dec.  556.  Levy  ».  Shur- 
judicial  discretion,  and  to  hold  him  man,  6  Ark.  182,  42  Am.  Dec.  690; 
liable  by  charging  some  bad  motive  Gay  v.  Lloyd,  1  Greene  (Iowa)  78, 
lying  back  of  it,  seems  to  come  46  Am.  Dec.  499;  Palmer  v.  Oakley, 
directly  within  the  condemnation  of  2  Doug.  (Mich.)  433,  47  Am.  Dec.  41 ; 
Bradley  v.  Fisher,  13  Wall.  335  above  Spear  v.  Carter,  1  Mich.  19,  48  Am. 
referred  to."  Cooley  on  Torts,  p.  412,  Dec.  688;  Kenney  v.  Greer,  13  III. 
note  5.  432,  54  Am.  Dec.  439;   Reynolds  v. 

*  Lowry  9.  Erwin,  6  Rob.  (La.)  192,  Stansbury,  20  Ohio,  844,  55  Am.  Dec. 
89  Am.  Dec.  556;  Palmer  v.  Oakley,  459;  Tucker*.  Harris,  13  Ga.  1,  58 
2  Doug.  (Mich.)  438,  47  Am.  Dec.  41;  Am.  Dec.  488. 

Kenney  v.  Qreer,  18  HL  483,  64  Am. 

413 


§  585.  THE    LAW    OF    AGENCY.  [Book  TV. 

jurisdiction,  or  has  erroneously  decided  that  the  power  to  do  a 
certain  act  is  within  the  jurisdiction  conferred  upon  him. 

If  an  officer  of  inferior  powers  erroneously  decides  that  he  has 
jurisdiction  of  the  subject-matter,  or  if,  having  jurisdiction  to  a 
limited  extent,  he  exceeds  that  limit,  he  is,  by  a  great  number  of 
authorities,  held  to  be  liable  to  the  party  injured  thereby.  Such 
a  proceeding  is  without  the  jurisdiction  which  the  officer,  at  his 
peril,  is  bound  not  to  exceed,  and  though  the  act  of  deciding 
upon  the  question  of  his  jurisdiction  is,  in  a  measure,  a  judicial 
one,  yet  if  as  a  matter  of  fact  and  law  he  has  not  jurisdiction,  his 
assumption  or  exercise  of  it  will,  according  to  these  authorities, 
constitute  an  actionable  wrong,  however  honest  may  have  been 
his  intention  to  keep  within  his  powers.* 

This  rule  and  the  reasons  for  it  are  well  stated  in  a  leading 
case  in  Massachusetts.*  Here,  the  defendant,  a  justice  of  the 
peace  of  the  county  of  Middlesex,  had  assumed  jurisdiction  of 
an  offense  of  which  the  police  court  of  the  city  of  Lowell  had 
by  statute  exclusive  jurisdiction.  In  the  course  of  the  trial  of 
the  case,  the  defendant  committed  the  plaintiff  for  contempt  for 
refusing  to  testify.  The  defendant  had  authority  to  so  commit 
the  plaintiff  if  he  had  had  jurisdiction  of  the  offense,  but  it  was 
held  that  having  no  jurisdiction  of  the  offense,  the  defendant 
had  no  power  to  commit,  this  power  being  merely  incidental  to 
the  authority  to  try.  In  giving  the  opinion  of  the  court, 
BiGELow,  J.,  said :  "  The  decision  of  this  case  depends  on  the 
familiar  and  well  settled  rule  concerning  the  liability  of  courts 
and  magistrates,  exercising  an  inferior  and  limited  jurisdiction, 
for  acts  done  by  them,  or  by  their  authority,  under  color  of  legal 
proceedings.  One  of  the  leading  purposes  of  every  wise  system 
of  law  is  to  secure  a  fearless  and  impartial  administration  of 
justice,  and  at  the  same  time  to  guard  individuals  against  a  wan- 
ton and  oppressive  abuse  of  legal  authority.     To  attain  this  end, 

'Wingate®.  Waite,  6  Mees.  &  W.  Dec.  470;  Piper  «.  Pearson,  2  Gray 

739;  Houlden  v.  Smith,  14  Q.B.  841;  (Mass.)  120,  61  Am.  Dec.  438;  Kelly 

Case  of  the  Marshalsea,  10  Coke  68;  v.  Bemis,  4  Gray  (Mass.)  84;  Hendrick 

Groenvelt  v.  Burwell,  1  Ld.   Raym,  v.  Whittemore,  105  Mass.  28;  Morrill 

454;  Yates©.   Lansing,  5  Johns.  (N.  v.  Thurston,  46  Vt.  732;  Carleton  e. 

Y.)  282;  Phelps  v.  Sill,  1  Day  (Conn.)  Taylor,  50  Vt.  220;  Vaughn  v.  Cong- 

315;  Palmer  e.  Carroll.  24  N.  H.  314;  don,  56  Vt.  Ill,  48  Am.  Rep.  758. 

Craig  V.  Burnett,  32  Ala.  728;  Clarke  *  Piper  v.  Pearson,  2  Gray  (Mass.) 

e.  May,  2  Gray  (Maes.)  410,  61  Am.  120,  61  Am.  Dec.  438. 

4:U 


Chap.  III.]         LIABILITY  OF  AGENT   TO   THIRD   PERSON.  §  586. 

the  common  law  affords  to  all  inferior  tribunals  and  magistrates 
complete  protection  in  the  discharge  of  their  official  functions, 
80  long  as  thej  act  within  the  scope  of  their  jurisdiction,  however 
false  and  erroneous  may  be  the  conclusions  and  judgments  at 
which  they  arrive. 

But  on  the  other  hand,  if  they  act  without  any  jurisdiction 
over  the  subject-matter,  or  if  having  cognizance  of  a  cause,  they 
are  guilty  of  an  excess  of  jurisdiction,  they  are  liable  in  damages 
to  the  party  injured  by  such  unauthorized  acts.  In  all  cases, 
therefore,  where  the  cause  of  action  against  a  judicial  officer, 
exercising  only  a  special  and  limited  authority,  is  founded  on 
his  acts  done  colore  officii^  the  single  inquiry  is  whether  he  has 
acted  without  any  jurisdiction  over  the  subject-matter,  or  has 
been  guilty  of  an  excess  of  jurisdiction.  By  this  simple  test  his 
legal  liability  will  at  once  be  determined.*  If  a  magistrate  acts 
beyond  the  limits  of  his  jurisdiction,  his  proceedings  are  deemed 
to  be  coram  nonjudice  and  void ;  and  if  he  attempts  to  enforce 
any  process  founded  on  any  judgment,  sentence  or  conviction  in 
such  case,  he  thereby  becomes  a  trespasser."  ' 

§  586.  Same  Subject— Limitations  of  this  Hule.  This  doctrine 
has,  however,  met  with  much  forcible  and  reasonable  dissent  in 
recent  times.  There  are  undoubtedly  cases  where  it  is  properly 
applicable,  as  where  jurisdiction  is  assumed  or  exercised  without 
even  the  color  of  authority,  or  beyond  limits  which  are  clearly 
and  unambiguously  defined,  or  in  the  face  of  express  statutory 
prohibitions.  But  where  on  the  other  hand,  the  officer  has  juris- 
diction of  the  subject-matter,  i.  e.  of  that  class  of  cases,  but  the 
question  of  jurisdiction  in  that  particular  case  depends  upon 
some  question  for  judicial  determination,  as  upon  the  proper 
legal  construction  to  be  placed  upon  a  doubtful  statute,  or  upon 
the  technical  legal  sufficiency  of  the  averments  of  a  preliminary 
complaint  or  affidavit, — questions  upon  which  he  is  bound  to 
decide,  and  questions,  too,  upon  which,  as  is  often  the  ease,  the 
learned  judges  of  the  courts  of  last  resort  are  unable  to  agree, — 

•Citing  1  Chitty  PI.  6th  Am.  Ed.  Johns.  (N.  Y.)  39,  10  Am.  Dec.  189; 

90,    209-213;    Beaurain  «.    Scott,    8  Allen ».  Gray,  11  Conn.  95. 
Camp.  888;  Ackerley  o.  Parkinson,  3         'Citing  1  Chitty  PI.  210;  Bigelow 

Maule  &  Sel.   425,   428;    Borden  v.  v.  Stearns,  supra;   Clarke  t>.  May,  3 

Fitch,  15  Johns.  (N.  Y.)  121,  8  Am.  Gray  (Mass.)  410,  61  Am.  Dec.  470. 
Dec.    225;   Bigelow  t>.    Stearns,    19 

415 


§  586.  THE   LAW    OF   AGENCY.  [Book  lY. 

it  certainly  seems  not  only  impolitic,  but  a  violation  of  the  well 
established  principle  governing  the  liability  of  judicial  officers 
to  hold  the  inferior  officer  liable,  at  any  rate  where  he  has  acted 
in  good  faith  and  with  an  honest  endeavor  to  do  the  right. 

Indeed,  it  is  difficult  to  see  why  in  this,  as  in  any  other  case  of 
judicial  action,  the  question  of  immunity  should  not  be  decided 
regardless  of  the  motive  alleged. 

That  is  the  doctrine  that  is  applied  to  the  judges  of  superior 
courts.  Thus  in  the  leading  case  upon  the  subject  in  this  coun- 
try, it  is  said :  "  A  distinction  must  be  observed  between  excess 
of  jurisdiction  and  the  clear  absence  of  all  jurisdiction  over  the 
subject-matter.  Where  there  is  clearly  no  jurisdiction  over  the 
subject-matter  any  authority  exercised  is  a  usurped  authority,  and 
for  the  exercise  of  such  authority,  when  the  want  of  jurisdiction 
is  known  to  the  judge,  no  excuse  is  permissible.  But  where 
jurisdiction  over  the  subject-matter  is  invested  by  law  in  the 
judge,  or  in  the  court  which  he  holds,  the  manner  and  extent  in 
which  the  jurisdiction  shall  be  exercised,  are  generally  as  much 
questions  for  his  determination  as  any  other  questions  involved 
in  the  case,  although  upon  the  correctness  of  his  determination 
in  these  particulars  the  validity  of  his  judgments  may  depend. 
Thus,  if  a  probate  court,  invested  only  with  authority  over  wills, 
and  the  settlement  of  estates  of  deceased  persons,  should  proceed 
to  try  parties  for  public  offenses,  jurisdiction  over  the  subject  of 
offenses  being  entirely  wanting  in  the  court,  and  this  being 
necessarily  known  to  its  judge,  his  commission  would  afford  no 
protection  to  him  in  the  exercise  of  the  usurped  authority.  But 
if,  on  the  other  hand,  a  judge  of  a  criminal  court,  invested  with 
general  criminal  jurisdiction  over  offenses  committed  within  a 
certain  district,  should  hold  a  particular  act  to  be  a  public 
offense,  which  is  not  by  the  law  made  an  offense,  and  proceed 
to  the  arrest  and  trial  of  a  party  charged  with  such  act,  or  should 
sentence  a  party  convicted  to  a  greater  punishment  than  that 
authorized  by  the  law  upon  its  proper  construction,  no  personal 
liability  to  civil  action  for  acts  would  attach  to  the  judge, 
although  those  acts  would  be  in  excess  of  his  jurisdiction,  or  of 
the  jurisdiction  of  the  court  held  by  him,  for  these  are  particu- 
lars for  his  judicial  consideration,  whenever  his  general  jurisdic- 
tion over  the  subject-matter  is  invoked.  Indeed,  some  of  the 
most  difficult  and  embarrassing  questions  which  a  judicial  officer 

416 


Chap.  TIL]         LIABILITY  OF  AGENT   TO   THIRD   PERSON. 


§586. 


is  called  upon  to  consider  and  determine,  relate  to  his  jurisdic- 
tion, or  that  of  the  court  held  by  him,  or  the  manner  in  which 
the  jurisdiction  shall  be  exercised.     *     *     * 

The  exemption  of  judges  of  the  superior  courts  of  record  from 
liabilitj  to  civil  suit  for  their  judicial  acts,  existing  when  there  is 
jurisdiction  of  the  subject  matter,  though  irregularity  and  error 
attend  the  exercise  of  the  jurisdiction,  the  exemption  cannot  be 
affected  by  any  consideration  of  the  motives  with  which  the  acts 
are  done.  The  allegation  of  malicious  or  corrupt  motives  could 
always  be  made,  and  if  the  motives  could  be  inquired  into,  judges 
would  be  subjected  to  the  same  vexatious  litigation  upon  such 
allegations,  whether  the  motives  had  or  had  not  any  real  exist- 
ence. Against  the  consequences  of  their  erroneous  or  irreo-ular 
action,  from  whatever  motives  proceeding,  the  law  has  provided 
for  private  parties  numerous  remedies,  and  to  those  remedies 
they  must,  in  such  cases,  resort."  ' 

And  this  rule  has  in  recent  cases  been  extended  to  the  case  of 
inferior  magistrates.     Thus  in  an  action  '  against  a  justice  of  the 


>  Field.  J.,  in  Bradley  v.  Fisher, 
13  Wall.  (U.  S.)  335. 

s  Grove  v.  Van  Duyn,  44  N.  J.  L. 
654,  42  Am.  Rep.  648.  And  to  the 
same  effect  are  McCall  v.  Cohen,  16 
S.  Car.  445,  42  Am.  Rep.  641 ;  Acker- 
ley  V.  Parkinson,  3  M.  &  S.  411; 
Maguire  v.  Hughes,  13  La.  Ann.  281 ; 
Henke  v.  McCord,  55  Iowa  378; 
Lange  v  Benedict,  73  N.  T.  12,  29 
Am.  Rep.  80,  is  an  interesting  case 
upon  the  general  question  under  con- 
Bideration. 

See  also  perMAKCT,  J.,  in  Savacool 
V.  Boughton  5  Wend.  (N.  Y.)  172,  21 
Am.  Dec.  181:  "Many  cases  may 
be  found  wherein  it  is  stated  gen- 
erally that  when  an  inferior  court 
exceeds  its  jurisdiction,  its  proceed- 
ings are  entirely  void,  and  afford  no 
protection  to  the  court,  the  party,  or 
the  officer  who  has  executed  its  pro- 
cess. This  proposition  is  undoubt- 
edly true  in  its  largest  sense,  where 
the  proceedings  are  coram  non  judice, 
and  the  process  by  which  the  officer 


seeks  to  make  out  his  justification 
shows  that  the  court  had  not  juris 
diction;  but  I  apprehend  that  it 
should  be  qualified  where  the  subject 
matter  of  the  suit  is  within  the  juris- 
diction of  the  court,  and  the  alleged 
defect  of  jurisdiction  arises  from 
some  other  cause. " 

See  also  Jordan  v.  Hanson,  49  N. 
H.  199,  6  Am.  Rep.  508. 

Why  a  distinction  should  be  made 
between  officers  of  different  grades, 
but  both  dealing  judicially  with  the 
same  question,  is  not  easy  to  deter- 
mine satisfactorily.  Judge  Cooley, 
considering  this  question  in  his  work 
on  Torts,  says: 

"  Why  the  law  should  protect  the 
one  judge  and  not  the  other,  and  why 
if  it  protects  one  only,  it  should  be 
the  very  one  who,  from  his  higher 
position  and  presumed  superior  learn- 
ing and  ability  ought  to  be  most  free 
from  error,  are  questions  of  which 
the  following  may  be  suggested  as 
the  solution:     The  inferior  judicial 


417 


§586. 


THE    LAW    OF    AGENCY. 


[Book  IV. 


peace,  the  Court  of  Errors  and  Appeals  of  New  Jersey  held  him 
not  liable  for  erroneously  assuming  that  certain  facts  constituted 
an  offense  within  his  jurisdiction.  Beaslet,  C.  J.,  states  the 
true  rule  in  respect  to  the  actionable  responsibility  of  a  judi- 
cial officer  having  the  right  to  exercise  general  powers,  to  be 
"  that  he  is  so  responsible  in  any  given  case  belonging  to  a  class 
over  which  he  has  cognizance,  unless  such  case  is  by  complaint 
or  other  proceeding,  put,  at  least  colorably,  under  his  jurisdic- 
tion. When  the  judge  is  called  upon  by  the  facts  before  him  to 
decide  whether  his  authority  extends  over  the  matter,  such  an 


oflacer  is  not  excused  for  exceeding 
his  jurisdiction  because,  a  limited 
autliority  only  having  been  conferred 
upon  him,  he  best  observes  the  spirit 
of  the  law  by  solving  all  questions  of 
doubt  against  his  jurisdiction.  If 
he  errs  in  this  direction,  no  harm  is 
done,  because  he  can  always  be  set 
right  by  the  court  having  appellate 
authority  over  him,  and  he  can  have 
no  occasion  to  take  hazards  so  long 
as  his  decision  is  subject  to  review. 
The  rule  of  law,  therefore,  which 
compels  him  to  keep  within  his  juris- 
diction at  his  peril,  cannot  be  unjust 
to  him,  because,  by  declining  to  exer- 
cise any  questionable  authority,  he 
can  always  keep  within  safe  bounds, 
and  will  violate  no  duty  in  doing  so. 
Moreover,  in  doing  so  he  keeps  with 
the  presumptions  of  law,  for  these  are 
always  against  the  rightfulness  of  any 
authority  in  an  inferior  court  which, 
under  the  law,  appears  doubtful.  On 
the  other  hand,  when  a  grant  of  gen- 
eral jurisdiction  is  made,  a  presump- 
tion accompanies  it  that  it  is  to  be 
exercised  generally  until  an  exception 
appears  which  is  clearly  beyond  its 
intent;  its  very  nature  is  such  as  to 
confer  upon  the  ofllcer  entrusted  with 
it  more  liberty  of  action  in  deciding 
upon  his  powers  than  could  arise 
from  a  grant  expressly  confined 
within  narrow  limits,  and  the  law 
would  be  inconsistent  with  itself  if  it 


were  not  to  protect  him  in  the  exer- 
cise of  this  judgment.  Moreover,  for 
him  to  decline  to  exercise  an  author- 
ity because  of  the  existence  of  a 
question,  when  his  own  judgment 
favored  it,  would  be  to  that  extent  to 
decline  the  performance  of  duty,  and 
measurably  to  defeat  the  purpose  of 
the  law  creating  his  oflflce ;  for  it  can 
not  be  supposed  that  this  contem- 
plated that  the  judge  should  act 
officially  as  though  all  presumptions 
opposed  his  authority  when  the  fact 
was  directly  the  contrary,"  Cooley 
on  Torts,  420. 

But  the  same  author  in  his  work  on 
Taxation,  page  793,  Ed.  1886,  says: 
"  It  has  been  made  a  question  whether 
these  principles  should  apply  to  a 
case  in  which  these  officers  are  ac- 
cused of  having  been  actuated  by  mal- 
ice, and  when  the  impelling  motive 
has  been  to  inflict  injury  upon  the 
parties  assessed.  It  has  already  been 
seen  that  assessments,  purposely 
made  excessive  through  evil  motive, 
may  be  reached  and  corrected  in 
equity.  But  to  subject  every  tax 
officer  to  the  necessity  of  explaining 
and  justifying  his  motives  to  the  sat- 
isfaction of  others,  under  a  penalty 
of  personal  responsibility,  is  perhaps 
to  go  beyond  what  is  necessary  to  the 
protection  of  tax  payers;  and  in  mat- 
ters depending  on  judgment  of  val- 
ues would  be  BO  dangerous  to  the 


418 


Chap.  III.]        LIABILITY  OF  AGENT   TO   THIRD    PERSON. 


§586. 


act  is  a  judicial  act,  and  such  officer  is  not  liable  in  a  suit  to  the 
person  affected  by  his  decision,  whether  such  decision  be  right  or 
wrong.  But  when  no  facts  are  present,  or  only  such  facts  as  have 
neither  legal  value  nor  color  of  legal  value  in  the  affair,  then,  in 
that  event,  for  the  magistrate  to  take  jurisdiction  is  not  in  any 
manner  the  performance  of  a  judicial  act,  but  simply  the  commis- 
sion of  an  official  wrong.  This  criterion  seems  a  reasonable  one, 
it  protects  a  judge  against  the  consequences  of  every  error  of 
judgment,  but  leaves  him  answerable  for  the  commission  of  a 
wrong  that  is  practically  wilful.  Such  protection  is  necessary  to 
the  independence  and  usefulness  of  the  judicial  officer,  and  such 


officers  that  it  is  doubtful  if  sound 
policy  could  sanction  it.  In  a  lead- 
ing case  in  New  York  it  is  declared 
that  the  question  of  motive  is  not  to 
be  raised  in  a  suit  against  assessors 
who  have  liept  within  their  jurisdic- 
tion. The  assessors,  it  was  said, 
were  judges  acting  clearly  within  the 
scope  and  limit  of  their  authority. 
They  were  not  volunteers,  but  the 
duty  was  imperative  and  compulsory; 
and  acting,  as  they  did,  in  the  per- 
formance of  a  public  duty,  in  its 
nature  judicial,  they  were  not  liable 
to  an  action,  however  erroneous  or 
wrongful  their  determination  may 
have  been  or  however  malicious  the 
motive  which  produced  it.  Such 
acts,  when  corrupt,  may  be  punished 
criminally,  but  the  law  will  not  allow 
malice  and  corruption  to  be  charged 
in  a  civil  suit  against  such  an  officer 
for  what  he  does  in  the  performance 
of  a  judicial  duty.  The  rule  extends 
to  judges  from  the  highest  to  the 
lowest;  to  jurors,  and  to  all  public 
officers,  whatever  name  they  may 
bear,  in  the  exercise  of  judicial 
power.  It  of  course  applies  only 
where  the  judge  or  officer  had  juris- 
diction of  the  particular  case,  and 
was  authorised  to  determine  it.  If 
he  transcends  the  limits  of  his  author- 
ity, he  necessarily  ceases,  in  the  par- 
ticular case,  to  act  as  judge,  and  is 


responsible  for  all  consequences.  But 
with  these  limitations,  the  principle 
of  irresponsibility,  it  was  said,  so 
far  as  respects  a  civil  remedy,  is  as 
old  as  the  common  law  itself.  Wea- 
ver V.  Devendorf,  3  Denio,  117,  120. 
There  is  some  apparent  dissent  from 
this  doctrine,  but  it  can  hardly  be 
said  that  there  is  opposing  authority. 
See  Stearns  v.  Miller,  25  Vt.  20; 
Parkinson  v.  Parker,  48  la.  667; 
Dilingham  v.  Snow,  5  Mass.  547;  and 
compare  Babcock  v.  Granville,  44  Vt. 
335. 

The  same  reasons  which  exempt 
assessors  from  responsibility  to  tax 
payers  exempt  them  also  when  the 
injury  from  erroneous  action  results 
to  the  public  instead  of  to  individuals. 
Assessors  are  not  therefore  liable  to 
a  parish  in  failing  to  levy  a  tax  equal 
to  the  amount  voted,  where  they 
have  acted  under  an  honest  belief 
that  they  were  carrying  out  the  views 
of  the  parish.  First  Parish  v.  Fiake, 
8  Cush.  264.  Nor  for  neglect  to 
commit  the  tax  list  to  the  proper  col- 
lector, when  by  an  honest  mistake  of 
duty  it  has  been  committed  to  an- 
other. Lincoln «.  Chapin,  132  Mass. 
470.  For  malfeasance  in  office 
assessors  as  well  as  other  officers  are 
liable  to  criminal  penalties.  Dill- 
ingham V.  Snow,  6  Mass.  647." 


419 


g  587.  THE    LAW    OF    AGENOT.  [Book  lY. 

responsibility  is  important  to  guard  the   citizen  against  oflBcial 
oppression." 

§  587,  Not  liable  when  Jurisdiction  is  assiimed  through  Mis- 
take of  Pact.  But  even  under  the  more  stringent  rule,  judi- 
cial officers  can  not  be  held  liable  for  acting  without  jurisdic- 
tion or  for  exceeding  the  limits  of  their  authority,  where  the 
defect  or  want  of  jurisdiction  is  occasioned  by  some  facts  or  cir- 
cumstances applicable  to  a  particular  case  of  which  the  officer 
had  neither  knowledge  nor  the  means  of  knowlege.  In  other 
words,  if  the  want  of  jurisdiction  over  a  particular  case  is  caused 
by  matters  of  fact,  it  must  be  made  to  appear  that  they  were 
known  or  ought  to  have  been  known,  to  the  officer  in  order  to 
hold  him  liable  for  acts  done  without  jurisdiction.  Otherwise 
the  maxim  Ignorantia  facti  exousat  applies.' 

2.     Quasi-judicial  Officers. 

§  588.  What  Duties  are  judicial— Qtiasi-judicial.  This  im- 
munity from  private  action  is  not  confined  to  those  only  who  sit 
as  judges  in  courts.  It  extends  for  the  protection  of  every  officer 
who  is  called  upon  to  exercise  duties  which  are  in  their  nature 
judicial, — which  are  to  be  performed  according  to  the  dictates  of 
his  judgment.* 

Such  duties,  when  not  conferred  upon  courts,  or  the  judges  of 
courts,  have  sometimes  been  termed  quasi-judicial  or  discretion- 
ary, but  no  particular  advantage  is  apparent  from  the  use  of  this 
distinctive  term.  The  question  depends  in  each  case  upon  the 
character  of  the  act.*  If  it  be  judicial  in  its  nature,  the  officer 
acts  judicially  and  is  exempt.  Nor  is  it  material  that  the  officer 
usually  or  often  acts  ministerially ;  in  those  cases  in  which  he 
does  act  judicially,   he  is,  nevertheless,  exempt.* 

«  Clarke  v.  May,  2  Gray  (Mass.)  410;  erty,  or  the  propriety  of  doing  an  act 

61  Am.  Dec.  470;  Pike  v.  Carter,  3  are  the  subject  matter  of  adjudication. 

Bing.  78  8.  0.  10  Moo.  876;  Lowther  Oflacial  action,  the  result  of  judgment 

V.  Earl  of  Radnor,  8  East.   113;  Cal-  or    discretion,    is    a    judicial    act." 

der  V.  Halket,  3  Moo.   P.   C.  C.  28;  Clopton,   J.    in   Grider  v.  Tally,  77 

Vaughn  V.  Congdon,  56  Vt.  Ill,  48  Ala.  422,  64  Am.  Rep.  65. 

Am.  Rep.  758.  » "Wall  «.  Trumbull,  16  Mich.  228. 

•See  vo»f',  P-  422,  n.  4.     "Judicial  «  Wall  «.  Trumbull,    supra:    Jen- 
power,"    says  a  learned  judge,  "is  kins  v.   Waldron,   11   Johns.  (N.  Y.) 
authority  vested  in  some  court,  offl-  114;    6   Am.    Dec.    859;    Weaver  «. 
cer  or  person,  to  hear  and  determine,  Devendorf,  3  Den.  (N.  T.)  117. 
when  the  rights  of  persons,  or  prop- 

420 


Chap.  III.]         LIABILITY  OP  AGENT   TO   THIBD   PERSON. 


§  5S8. 


This  principle  embraces  the  action  of  arbitrators  in  their  deci- 
sion upon  the  controversy  submitted  to  them ;  *  jurors  in  their 
deliberations  and  verdicts;'  assessors  in  the  valuation  of  property 
for  taxation ;  *  commissioners  appointed  to  determine  and  award 
damages  for  property  taken  by  virtue  of  the  right  of  eminent 
domain  ;  *  officers  authorized  to  lay  out,  alter  or  discontinue  high- 
ways;' highway  officers  in  deciding  upon  exemption  from  high- 
way taxes;*  members  of  municipal  boards  in  deciding  upon  the 
allowance  of  claims; '  collectors  of  customs  in  the  sale  of  perish- 
able property;'  inspectors  of  elections"  and  board  of  registra- 
tion "  in  deciding  upon  the  existence  of  the  necessary  qualifica- 
tions of  a  voter ;  school  officers  in  deciding  upon  the  removal  of 
a  teacher;"  aldermen  in  deciding  upon  the  letting  of  contracts  ;" 
a  board  of  county  commissioners  in  deciding  upon  an  application 
for  a  permit  to  sell  intoxicating  liquors;"  boards  of  supervisors 


•  Jones  V.  Brown,  54  Iowa,  74,  37 
Am.  Rep.  185;  Pappa  v.  Rose,  L.  R.  7 
C.  P.  33,  1  Eng.  Rep.  87,  8.  0.  on  ap- 
peal L.  R.  7  C.  P.  525,  3  Eng.  Rep. 
875. 

2  Hunter  v.  Mathis,  40  Ind.  356; 
Turpen  v.  Booth,  56  Cal.  65,  38  Am. 
Rep.  48. 

3  Wall  V.  Trumbull.  16  Mich.  228; 
Dillingham  v.  Snow,  6  Mass.  547; 
Easton  v.  Calendar,  11  Wend.  (N.  Y.) 
90;  Weaver  v.  Devendorf,  3  Den.  (N. 
Y.)  117;  Vail  «.  Owen.  19  Barb.  (N. 
Y.)  22;  Brown  v.  Smith,  24  Id.  419; 
People  V.  Reddy,  43  Id.  589;  Vose  v. 
Willard,  47  Id.  320;  Bell  v.  Pierce,  40 
Id.  51,  Barhyte  v.  Shepherd,  35  N.  Y. 
238;  Western  R.  R.  Co.  v.  Nolan,  48 
Id.  513;  Pentlandc.  Stewart,  4  Dev. 
&  Bat.  (N.  C.)  386;  Steam  Navigation 
Co.  V.  Wasco  County,  2  Ore.  209; 
Macklot«.  Davenport,  17  Iowa.  379; 
Muscatine,  &c.  R.  R.  Co.  v.  Horton, 
38  Id.  33;  Walker  v.  Hallock,  32  Ind. 
239;  Lilienthal  e.  Campbell,  22  La. 
Ann.  600;  Williams  v.  Weaver,  75  N. 
Y.  30;  Buffalo  &c.  R.  R.  Co.  «. 
Supervisors,  48  N.  Y.  93;  McDaniel 
«.  Tebbetts,  60  N.  H.  497;  Wilson  «. 


Marsh,  34  Vt.  352;  San  Jos6  Gas  Co. 
«.  January,  57  Cal.  614. 

•  Van  Steenbergh  v.  Bigelow,  8 
Wend.  (N.  Y.)  42. 

«  Sage  V.  Laurain,  19  Mich.  137. 

•  Harrington  v.  Commissioners,  &c, 
2  McCord  (S.  C.)  400. 

f  Wall  V.  Trumbull,  16  Mich.  228. 

•  Gould  V.  Hammond,  1  McAllis- 
ter (U.  S.  C.  C.)  285. 

9  Gordon  «.  Farrar,  2  Doug. 
(Mich.)  411;  Jenkins  v.  Waldron,  11 
Johns.  (N.  Y.)  114,  6  Am.  Dec.  359; 
Miller  V.  Rucker,  1  Bush.  (Ky.)  135; 
Carter©.  Harrison,  5  Blackf.  (Ind.) 
138;  Rail©.  Potts,  8  Humph.  (Tenn.) 
225;  Peavey  v.  Robbins,  3  Jones  (N. 
C.)  L.  339;  Caulfield  v.  Bullock,  18  B. 
Mon.  (Ky.)  494;  El  bin  v.  Wilson,  33 
Md.  135;  Friend  v.  Hamill,  Mid.  298. 

"•  Fausler  v.  Parsons,  6  W.  Va. 
486,  20  Am.  Rep.  431. 

1'  Burton  v.  Fulton,  49  Penn.  St. 
151.  See  also  Chamberlain  v.  Clay- 
ton, 56  Iowa  331,  41  Am.  Rep.  101. 

■>  East  River  Gas  L.  Co.  ©.  Don- 
nelly, 25  Uun  (N.  Y.)  614,  s.  o.  93  N. 
Y.  557. 

■>  State  «.  Commissioners,  45  Ind 
501. 


421 


8  588.  THE    LAW    OF    AGENCY.  [Book  I  V". 

in  determining  upon  the  sufficiency  of  a  bond  of  an  officer,  and 
whether  by  failing  to  file  a  new  bond  required  by  them,  he  has 
forfeited  his  office ; '  pilot  officers  in  deciding  that  a  pilot  was 
no  longer  authorized  to  act  as  such  and  therefore  revoking  his 
license.* 

An  attempt  has  been  made  in  some  cases  to  make  a  distinction 
between  those  officers  whose  duties  lie  outside  the  domain  of 
courts — the  so-called  quasi-  judicial  officers — and  the  judges  of 
courts,  to  the  effect  that  while  the  latter  are  exempt,  the  former 
may  be  made  liable  if  their  motives  were  corrupt  or  malicious.* 
This  distinction,  however,  is  believed  to  be  not  well  founded. 
If  the  action  is  really  judicial,  the  immunity  which  adheres  to 
judicial  action  should  be  applied  whether  the  officer  sits  upon  the 
bench  of  a  regularly  established  court  or  not.  As  has  been 
said,  if  the  action  can  be  maintained  by  the  allegation  of  im- 
proper motives,  no  litigant  will  fail  to  allege  them,  and  the  pub- 
lic officer  may  be  constantly  called  upon  to  defend  himself  from 
actions  brought  with  motives  fully  as  malicious  as  those  which 
are  alleged  to  have  inspired  him.  Public  policy  requires  that 
all  judicial  action  shall  be  exempt  from  question  in  private  suits, 
and  the  best  considered  cases  so  declare  the  rule.* 

>  People  «.    Supervisors,    10   Cal,  Appeal  of  New  Tork,  an  action  was 

344  346.  brought    against    the  members  of  a 

«  Downer   t>.  Lent,    6  Cal.    94,  65  common  council  for  damages  alleged 

Am.  Dec.  489.  to  have  been    sustained  because  the 

»  See  Hoggatt  v.  Bigley,  6  Humph.  defendants    wilfully    and    corruptly 

(Tenn.)  336;   Baker  v.  State,  27  Ind.  refused  to  accept  the  plaintiff's  bid 

485;  ChickeringB.  Robinson,  3  Cush.  for  doing  certain    public  work,  but 

(Mass.)    543;    Gregory  v.  Brooks,  37  the    complaint    upon    demurrer  was 

Conn.  365.  held    to    state    no    cause    of  action. 

<  This  distinction  was  expressly  Danforth  J.  said  that  it  is  "the 
repudiated  so  far  as  it  applied  to  well  settled  rule  of  law  that  no  pub- 
judge  of  superior  courts  in  Bradley  v.  lie  officer  is  responsible  in  a  civil 
Fisher,  13  Wall.  (U.  S.)  335,  and  the  suit  for  a  judicial  determination, how- 
reasons  there  given  apply  with  equal  ever  erroneous  or  wrong  it  may  be, 
force  to  all  judicial  action.  It  was  or  however  malicious  even  the  motive 
also  repudiated  as  to  arbitrators  in  which  produced  it."  East  River  Gas 
Jones  V.  Brown,  54  Iowa  74,  37  Am.  L.  Co.  v.  Donelly,  93  K  Y,  557, 
Rep.  185,  and  it  was  doubted  even  as  affirming  25  Hun,  614. 
to  that  class  called  quasi-jndicial  The  distinction  was  also  ignored  in 
officers  in  Chamberlain  v.  Clayton,  56  an  action  against  pilot  commissioners 
Iowa  331,  41  Am.  Rep.  101.  So  in  for  "  wrongfully  and  maliciously" 
&  recent   case    before    the  Court  of  revoking  a  pilot's  license.    Downer «. 

422 


Chap.  III.]        LIABILITY   OF    AGENT   TO    THIRD   PEK80N.  §  590. 

I 

3.  Legislative  Officers. 

§  589.  Same  Immunity  extends  to  Legislative  Action.  The 
same  immunity  from  private  action  extends  to  legislative  officers 
while  acting  within  the  limits  assigned  to  them.  While  their 
duties  are  not  strictly  judicial  in  their  nature,  they  are  called 
upon  to  exercise  discretion,  judgment  and  foresight.  They  are 
chosen  to  make  such  provisions,  within  their  jurisdiction,  as  to 
them  seem  for  the  best  interests  of  their  constituents,  and  they 
cannot  be  called  upon  to  defend  their  action  at  the  suit  of  private 
individuals,  even  though  it  be  alleged  that  they  acted  corruptly 
or  maliciously.' 

This  exemption  is  not  confined  to  the  state  or  national  legisla- 
tures but  it  applies  also  to  inferior  legislative  bodies  such  as 
boards  of  supervisors,  county  commissioners,  city  councils  and 
other  bodies  of  a  like  nature.* 

^.  Ministerial  Officers. 

§  590.  In  general— Liable  to  party  specially  Injured.  Some 
consideration  has  already  been  given  to  the  question  of  when  the 
duties  to  be  performed  are  so  particular  to  the  individual  as  to 
give  him  a  right  of  action  for  an  injury  sustained  by  him  in  con- 
sequence of  the  failure  to  perform  such  duties.' 

In  accordance  with  the  principles  there  laid  down,  it  may  be 
said  that  wherever  the  law  imposes  upon  a  public  officer  the  per- 
formance of  ministerial  duties,  in  which  a  private  individual  has 
a  special  and  direct  interest,  the  public  officer  is  liable  to  such 
individual  for  any  injury  which  he  may  sustain  in  consequence 
of  the  failure  or  neglect  of  the  officer  either  to  perform  them  at  all, 
or  to  perform  them  properly.  In  such  a  case  the  officer  is  liable 
as  well  for  non-feasance  as  for  misfeasance  or  malfeasance.* 

Lent,  6  Cal.  94,  65  Am.  Dec.  489,  and  Hun  (N.  Y.)  501;  Scott  v.  Stansfield, 

in    an    action    against  grand  jurors',  L.  R.  3  Ex.  220. 

Turpen  v.  Bootli,  56  Cal.  65,  38  Am.  '  See  Cooley  on  Torts,  876. 

Rep.  48.     So   it    is  said  by  Beards-  *  Jones  v.  Loving,  55  Miss.  109,  30 

LEY,  J.    "  The  rule  extends  to  judges  Am.  Rep.  508;  County  Commission- 

from    the    highest  to   the  lowest;  to  erst).  Duckett,  20  Md.  469;  Borough 

jurors  and  to  all  public  officers  what-  of  Freeport  v.   Marks,  59  Penn.  St. 

ever  name  they  may  bear,  in  the  exer-  253;  Baker  v.  State,  27  Ind.  485.    See 

else  of  judicial  power."    In  Weaver  City  of  Pontiact).  Carter,  32  Mich.  164. 

t>.  Devendorf,  3  Den.    (K   Y.)  117.  »^nfe,  §578. 

See  also  Robinson  v.   Rowland,   26  *  Rowning  v.  Goodchild,   2  W.  Bl. 

423 


ft  591,  TUE    LAW    OF    AGENCY.  [Book    lY. 

It  18  no  defense  to  such  an  officer  upon  whom  the  law  has 
imposed  the  positive  duty  of  performance,  that  he  was  mistaken 
as  to  the  nature  or  extent  of  his  obligation,  or  that  he  acted  in 
entire  good  faith  and  with  an  honest  intention  to  do  his  duty/ 

So  it  is  immaterial  that  the  duty  is  one  primarily  imposed  upon 
public  grounds,  and  therefore  a  duty  owing  primarily  to  the 
public;  the  right  of  action  springs  from  the  fact  that  the  private 
individual  receives  a  special  and  peculiar  injury  from  the  neglect 
in  performance,  against  which  it  was  in  part  the  purpose  of  the 
law  to  protect  him.*  It  is  also  immaterial  that  the  failure  in 
performance  is  made  by  law  a  penal  offense.* 

§  591.  Same  Subject— Nature  of  the  Duty  governs  Liability. 
Here,  as  in  the  case  of  judicial  officers,  it  is  the  nature  of  the 
duty,  rather  than  the  title  of  the  officer,  that  determines  the  lia- 
bility. Judicial  officers  are  frequently  called  upon  to  perform 
purely  ministerial  duties,  and  as  to  those  duties  the  rule  gov- 
erning ministerial  action  applies,* 

§  592.  Same  Subject— What  Duties  are  ministerial.  The 
difficulty  in  dealing  with  questions  of  judicial  and  ministerial 
action  does  not  lie  so  much  in  the  determination  of  the  proper 
principle  of  law  to  be  applied  when  the  nature  of  the  action  has 
been  ascertained,  as  in  determining  whether  the  given  act  is 
judicial  or  ministerial  in  its  character. 

The  majority  of  cases,  perhaps,  are  easily  distinguished,  but 
there  are  still  many  others  which  lie  so  near  the  line  that  courts 

906;  Ashby  v.  White,  2  Ld.  Raym,  Raynsford  v.  Phelps,  43  Mich.  342, 

938;  Lane  v.  Cotton,  1  Salk.  17;  A.my  38  Am.  Rep.  189;  Clark  e.  Miller,  54 

«.  Supervisors,  11  Wall.  (U.  S.)  136;  N.  Y.  528.  534;  Keith  e.  Howard,  24 

Sawyer  «.  Corse,  17  Gratt.  (Va.)  230,  Pick.  (Mass.)  292;  Hover  v.  Barkhoof, 

94  Am  Dec.  445;  Bassett  v.  Fish,  12  44  N.  Y.  118;  St.  Joseph  F.  &  M. 

Hun  (N.  Y.)209;  Piercy©.  Averill,  37  Ins.   Co.  v.  Leland,  90  Mo.  177,  59 

Id.  360;  Bennett  v.  Whitney,  94  K  Am.  Rep.  9;  Grider  ».  Tally,  77  Ala. 

Y.  302;  Jenner  v.  Joliffe,  9  Johns.  N.  422,  54  Am.  Rep.  65, 
Y.  381 ;  Adsit  v.  Brady,  4  Hill  (N.  Y.)  «  Amy  v.  Supervisors,  11  Wall.  (U. 

630.    40    Am.   Dec.   305;  Rounds  v.  8.)  186. 

Mansfield,    38    Me.    586;    Bailey    «.  « Raynsford  v.   Phelps,    43    Mich. 

Mayor,  3  Hill  N.  Y.  531,  88  Am.  Dec.  842,  38  Am,  Rep.  189. 
669;  Maxwell  c.   Pike,   2  Me.  8;  Mc-         'Raynsford     v.     Phelps,    tupra; 

Carty  v.  Bauer,  3  Kan.  237;  Wilson  v.  Hayes  c.  Porter,  22  Me.  371. 
Mayor,  1  Den.   (N.  Y.)  595,  43  Am.  «  People  t»,  Provines,  34   Cal.  520; 

Dec.  719;  Robinson  v.  Chamberlain,  People  v.  Bush,  40  Cal.  344;  Grider*. 

84    K    Y.    389,    90  Am.   Dec.  713;  Tally.  77  Ala.  422,  54  Am.  Rep.  66. 

424 


Chap.  III.]        LIABILITY  OF  AGENT  TO   THIRD   PERSON.  §  592. 

have  found  it  extremely  difficult  to  decide  upon  the  true  nature 
of  the  duty. 

No  inflexible  rule  can  be  laid  down  by  which  this  difficulty  can 
be  solved  in  every  case.  Each  case  must  be  determined  upon  an 
examination  of  all  of  its  facts.  The  most  important  criterion, 
perhaps,  is  that  the  duty  has  been  positively  imposed  by  law 
and  its  performance  is  required  at  a  time  and  in  a  manner 
specifically  designated,  nothing  being  left  to  the  judgment  or 
discretion  of  the  officer.  As  is  said  by  a  learned  judge  :  "  The 
duty  is  ministerial,  when  the  law,  exacting  its  discharge,  pre- 
scribes and  defines  the  time,  mode  and  occasion  of  its  perform, 
ance  with  such  certainty  that  nothing  remains  for  judgment  or 
discretion.  Official  action,  the  result  of  performing  a  certain 
specific  duty  arising  from  designated  facts,  is  a  ministerial  act."  ' 

In  the  same  line,  a  ministerial  act  has  also  been  defined  as 
"  an  act  performed  in  a  prescribed  manner,  in  obedience  to  the 
law  or  the  mandate  of  legal  authority,  without  regard  to,  or 
the  exercise  of,  the  judgment  of  the  individual  upon  the  propriety 
of  the  act's  being  done."  • 

That  a  necessity  may  exist  for  the  ascertainment,  from  personal 
knowledge  or  by  information  derived  from  other  sources,  of  those 
facts  or  conditions,  upon  the  existence  or  fulfilment  of  which,  the 
performance  of  the  act  becomes  a  clear  and  specific  duty,  does 
not  operate  to  convert  the  act  into  one  judicial  in  its  nature. 
Such  is  not  the  judgment  or  discretion  which  is  an  essential 
element  of  judicial  action.' 

Thus  a  sheriff  must  determine  whether  process  coming  into  his 
hands  for  service,  is  issued  from  a  court  of  competent  jurisdic- 
tion and  is  regular  on  its  face,  and  a  treasurer  of  public  money 
must  ascertain  whether  a  warrant  for  its  payment  is  drawn  by 
such  an  officer  and  is  in  such  form  that  its  payment  becomes  a 
dutv  ;  but  the  execution  of  the  process  and  the  payment  of  the 
warrant  are  ministerial  acts.  A  judge  must  determine  whether 
a  judgment  is  entered  according  to  the  verdict  of  the  jury  or  the 
the  consideration  of  the  court,  and  whether  a  bill  of  exceptions 

'  Clopton,  J.  in  Qrider  v.  Tally,  »  Qrider  v.  Tally,  supra;  Flournoy 

77  Ala.  422,  54  Am.  Rep.  65.  v.  City  of  Jefifersonville,  supra;  Betts 

« In  Pennington  ».  Streight,  54  Ind.  v.  Dimon,  3  Conn.   107;  Ray  v.  City 

876;  Flournoy  v.  City  of  Jefferson-  of  Jefiersonville,  90  Ind.  572. 
ville,  17  Ind.  169,  79  Am.  Dec.  468. 

425 


§  593.  THE   LAW   OF    AGENCY.  [Book  IV. 

correctly  recites  the  proceedings;  but  the  act  of  signing  the 
judgment  and  bill  of  exceptions  is  ministerial. 

It  has  been  said  that,  perhaps,  as  safe  a  criterion  as  any  other 
to  ascertain  whether  a  private  suit  will  or  will  not  lie,  is  to  adopt 
the  rule  which  governs  in  cases  in  which  a  mandamus  would  or 
would  not  be  granted  to  compel  the  officer  to  perform  the  duty.» 

This  rule  is  that  in  matters  which  require  judgment  and  con- 
sideration to  be  exercised  by  the  officer,  or  which  are  dependent 
upon  his  discretion,  mandamus  will  not  be  granted,  but  that  for 
ministerial  acts  in  the  performance  of  which  no  exercise  of 
judgment  or  discretion  is  required,  the  writ  will  be  granted.* 

II. 

LIABILITT   FOR   THE   T0ET8    OF    THEIK   OFFICIAL    SUBORDINATES. 

8  593.  Public  OflB.cer  of  Government  not  liable  for  Acts  of  his 
official  Subordinate.  Public  officers  of  the  government,  in  the 
performance  of  their  public  functions,  are  not  liable  to  third  per- 
sons for  the  misconduct,  negligence  or  omissions  of  their  official 
subordinates.'  This  immunity  rests  upon  motives  of  public 
policy,  the  necessities  of  the  public  service,  and  the  perplexities 
and  embarassments  of  a  contrary  doctrine.* 

These  official  subordinates  are  themselves  public  officers  though 
of  an  inferior  grade,  and  are  directly  liable,  in  those  cases  in 
which  any  public  officer  is  liable,  for  their  own  defaults.  Such 
subordinate  officers  are  not  infrequently  appointed  directly  by 
the  governmental  power  and  removable  only  at  its  pleasure,  but 
even  in  those  cases  in  which  they  are  appointed  and  removed  by 
their  immediate  official  superior,  the  latter  is  not  liable,  unless  he 
has  himself  been  negligent  either  in  their  selection  or  retention,* 

I  Rains  v.   Simpson,   50  Tex.  495,  Sawyer  v.  Corse,  17  Gratt.  (Va.)  230, 

33  Am.  Rep.  609.  8*  ■^™-  ^^^-  ^^^''  Dunlop  v.  Munroe, 

"  «  Carrick  v.  Lamar.  116  U.  S.  423;  7  Cranch.  (U.  S.)  242;  Tracy®.  Cloyd, 

Decatur  v.  Paulding.  14  Pet.  (U.  S.)  10  W.  Va.  19;  Lane  v.  Cotton,  1  Ld. 

497;    United   States    v.    Guthrie,   17  Raym.  646;  Whitfield    v.    Lord    Le 

How    (U.  S.)  284;  United  States  v.  Despencer.  2  Cowp.  754. 

Commissioner,   5  Wall.  (U.  S.)  563;  «  City  of  Richmond   «.    Long,   17 

Litchfield  V.  Register,  9  Wall.  (U.  S.)  Gratt.  (Va.)  375.  94  Am.  Dec.  461. 

g^g  «  Wiggins  «.  Hathaway,  6  Barb.  (N. 

•City  of    Richmond  t>.   Long,  17  T.)  632;  Schroyert.  Lynch,  8  Watts. 

Gratt  (Va.)  375,   94  Am.  Dec.  461;  (Penn.)453. 

426 


Cliap.  III.]         LIABILITY  OF  AGENT   TO   THIRD    PERSON.  §  594. 

or  in  the  manner  of  their  appointment  or  qualification  ; '  or  in 
superintending  the  discharge  of  the  duties  in  his  office.* 

§  594.  Same  Subject— To  what  Officers  this  Riile  applies. 
This  rule  has  frequently  been  applied  to  the  officials  of  the  post 
office  department,  and  the  law  is  well  settled  both  in  England 
and  America,  that  the  postmaster  general,  the  local  postmasters, 
and  their  assistants  and  clerks  appointed  and  sworn  as  required 
by  law,  are  public  officers,  each  of  whom  is  responsible  for  his  own 
defaults  only,  and  not  for  those  of  any  of  the  others,  although 
selected  by  him,and  subject  to  his  orders,'  unless  he  has  negligently 
or  wilfully  appointed  or  retained  unfit  or  improper  persons  ;  *  or 
has  failed  to  require  of  them  conformity  to  the  prescribed  regula- 
tions ;  •  or  has  so  carelessly  conducted  the  affairs  of  his  office  as  to 
furnish  opportunity  for  such  default ;  •  or  unless  he  has  co-oper- 
ated in,  or  authorized  the  wrong.  ^ 

Whether  contractors  for  carrying  the  mail  are  public  govern- 
mental officers  within  the  meaning  of  this  rule,  so  as  to  be  exempt 
from  liability  for  the  defaults  of  their  subordinates,  is  a  question 
upon  which  there  is  a  conflict  of  authority,  but  the  better  opinion 
is  that  they  are  not.* 

So  it  has  been  held  that  the  captain  of  a  ship  of  war,  whose 
subordinate  officers  are  appointed  by  the  government,  is  not  liable 
for  an  injury  caused  by  the  negligence  of  his  lieutenant.* 

And  a  confederate  district  commissary  in  Virginia  during  the 
late  war,  was  held  not  responsible  for  the  misfeasances  and  wrong 

I  Bishop  t.  Williamson,  11  Me.  495.      whom  he  had  not  required  to  take 

*  Dunlop  V.  Munroe,  7  Cranch  (U.  the  oath  prescribed  by  law.  To  same 
S.)  242;  Schroyerv.  Lynch,  sMjwa.  effect:    Sawyer  v.    Corse,   17  Gratt. 

sKeenanr.  Southworth,  110  Mass.  (Va.)  230,  94  Am.  Dec.  445;  Bolan  t>. 

474.  14  Am.  Rep.  613;  Lane  v.  Cot-  Williamson,  1  Brev.  (S.  C.)  181. 

ton,  1  Ld.   Raym.  646;   Whitfield  v.  •  Dunlop  c.  Munroe,  7  Cracch.  (U. 

Lord  Le  Despencer,   2  Cowp.    754;  8.)  242;  Ford  c.  Parker,  4  Ohio  St. 

Dunlop  V.  Munroe,  7  Cranch.  (U.  S.)  576. 

242;    Bchroyer  v.   Lynch,   8  Watts.  t  Tracy  d.  Cloy d,  10  W.  Va.  19. 

(Penn.)  453;  Bishop  v.   Williamson,  » Sawyer  «.  Corse,    17  Qratt.  (Va.) 

11  Me.  495;  Hutchins  t»,  Brackett,  22  230,  94  Am.  Dec.  445;  contra,  Con- 

N.  H.  252,  53  Am.  Dec.  349.  well  v.   Voorhees,   13  Ohio  523,  43 

*  Wiggins  V.  Hathaway,  6  Barb.  Am.  Dec.  206;  Hutchins  r.  Brackett, 
(N.  Y.)  632.  22  N.  H.  253,  53  Am.  Dec.  248. 

» Bishop  «.  Williamson,  11  Me.  495.  "Nicholson  c.  Mounsey,   15  East. 

In  this  case  the  postmaster  was  held      884. 
liable  for  the  default  of  an  assistant 

427 


^  695.  THE    LAW    OF    AGENCY.  [iJook  1  V. 

doings  of  his  snbordinates  unless  he  co-operated  in  or  authorized 
the  wrong.'  This  rule  has  also  been  extended  to  the  case  of 
persons  acting  in  the  capacity  of  public  agents  engaged  in  the 
public  service  and  acting  solely  for  the  public  benefit,  although 
not  strictly  filling  the  character  of  oflicers  or  agents  of  the  gov- 
ernment. Thus  it  has  been  held  that  overseers  of  highways  in- 
trusted with  the  supervision  of  highways,  discharging  the  duties 
gratuitously  and  being  personally  guilty  of  no  negligence,  are 
not  responsible  for  an  injury  sustained  by  an  individual  through 
the  negligence  of  workmen  employed  under  them.*  So  trustees 
and  commissioners  acting  gratuitously  for  the  benefit  of  the  pub- 
lic and  intrusted  with  the  conduct  of  public  works  are  not  liable 
for  an  injury  occasioned  by  the  negligence  or  unskillfulness  of 
workmen  and  contractors  necessarily  employed  by  them  in  the 
execution  of  ^he  work.* 

A  collector  of  customs  is  not  personally  liable  for  a  tort  com- 
mitted by  his  subordinates,  there  being  no  evidence  to  connect 
the  collector  personally  with  the  wrong,  or  that  the  subordinates 
were  not  competent,  or  were  not  properly  selected  for  their 
positions.* 

III. 

FOR   TORTS    OF    HIS   PRIVATE    SERVANT   OR   AGENT. 

§  595.  Liable  for  Torts  of  his  private  Servant  or  Agent.  A 
public  ofiicer  is  subject  to  the  same  liability  for  the  torts  of  his 
own  private  servant  or  agent  as  adheres  to  any  other  principal.' 

>  Tracy  v.  Cloyd,  mpra.  Clarke,  6  Taunt.  34;  Holliday  v.  St. 

»  Holliday  t>.  St.  Leonard,  11  Com.  Leonard,  supra. 

B.  (N.  S.)  192.  *  Robertson  v.  Sichel,  127  U.  S.  507. 

3  Hall  V.  Smith,  2  Bing.  156;  Harris  s  Sawyer  t.  Corse,  17  Gratt.  (Va.) 

f.  Baker,  4  Maule  &  S.  37;  Sutton  v.  230,  94  Am.  Dec.  446. 

428 


Chap.  lY.]  LIABILITY    OF   P£U{OIPAL   TO  AOii^lfT. 


CHAPTER    IV. 

THE  DUTIES  AND  LIABILITIES  OP  THE  PRINCIPAL  TO  THE 

AGENT. 


§  596.  In  general — Payment  of  Com- 
pensation— Indemnity. 

I.  The  Payment  op  Compensation. 
1.   The  Agent's  Right  to  Compensation. 

697.  Agreement  to  pay  Compensa- 

tion. 

698.  Express   Agreement    conclu- 

sive. 

699.  When  Agreement  must  be  ex- 

press. 

600.  When  Agreement  to  pay  will 

not  be  implied. 

601.  When  Promise  to  pay  will  be 

implied. 

602.  Unauthorized  Agent  entitled 

to  Compensation  if  Acts  are 
ratified. 

\S.  The  Amount  of  ihe  Compensation, 

603.  Express  Contract  governs. 

604.  May  be  left  for  Principal  to 

determine. 
606.  In    the   Absence   of    express 
Agreement,      Law     implies 
reasonable  Compensation. 

606.  What  Elements  may  be  con- 

sidered. 

607.  What  Evidence  as  to  Value  is 

admissible. 

608.  Agent  continuing  after  Expi- 

ration of  Term  presumed  to 
be  at  prior  Compensation. 

S.   When  Compensation  is  Considered 
to  be  Ea/med. 

609.  In  general. 

610.  Compensation    earned    when 

Undertaking     fully    com- 
pleted. 


§  611.  Same    Subject  —  When    full 

Performance     a     Condition 

precedent. 
612.  Same  Subject  —  Not  defeated 

by  Principal's  Default. 
618.  Same  Subject  —  No  Defense 

that   Principal    realized    no 

Profit. 

1.  Revocation  by  Act  of  Pi-incipal. 

614.  When    Agent  is    entitled    to 

Compensation  if  Authority 
is  revoked  before  Perform- 
ance. 

a.  Authority  Rightfully  Revoked. 

615.  Same  Subject  —  Authority 

rightfully  Revoked. 

616.  Same    Subject  —  Agency    at 

Will  of  the  Principal. 

617.  Same    Subject — Agency    ter- 

minable on  Contingency. 

618.  Same    Subject  —  Agency    ter- 

minable only  on  Breach  of  ex- 
press or  implied  Condition. 

619.  Same    Subject  —  When    ter- 

minated for  Agent's  Miscon- 
duct. 

b.   Authority  Wrongfully  Revoked. 

620.  When  Agent  discharged  with- 

out Cause,  Breach  of  im- 
plied Contract. 

621.  Same  Subject  —  Breach  of  ex- 

press Contract,  Agent's  Rem- 
edies. 

622.  Same  Subject  —  The  Measure 

of  Damages. 

623.  Same  Subject — Duty  of  Agent 

to  seek  other  Employment. 


429 


THE    LAW    OF    AGENCY. 


[Book  lY. 


I  624,  When  Right  of   Action    ac- 
crues. 

625.  No    Damages  if    Agent    ac- 

quiesces in  Discharge. 

S.  Revocation  by  Operation  of  Law, 

626.  No  Damages  where  Agency 

revoked   by  Death    of    the 
Principal. 

627.  Same  Rule  where  Agency  re- 

voked   by   Insanity  of    the 
Principal. 

628.  Rule  where  Agency  revoked 

by  Bankruptcy  of  Principal. 

629.  Rule  where  Agency  revoked 

by  Death  of  the  Agent. 

680.  Rule  where  Agency  revoked 

by  Insanity  of  the  Agent. 

681.  How  when  Agency  terminated 

by  Agent's  Sickness  or  In- 
capacity. 

S.  Abandonment  by  Agent. 

682.  1.  When   Abandonment  law- 

ful. 

633.  2.  When  Abandonment 
wrongful. 

634  Same  Subject  —  Entire  and 
severable  Contracts,  Right 
to  Compensation. 

635.  Same  Subject  —  The  Rules 
Stated. 

686.  Same  Subject  —  The  more  lib- 
eral Rule,  Britton  «.  Turner. 

637.  Same  Subject  —  Further  of  the 

rule  of  Britton  v.  Turner. 

638.  Brief   Absences  no  Abandon- 

ment. 

639.  Condonation  of  Abandonment. 

640.  What    will  excuse  Abandon- 

ment—  Sickness —  Epidemic. 

641.  Contracts    not    to    terminate 

without  Notice.     Forfeiture 
for  Breach. 

642.  Same  Subject  —  What  works 

a  Forfeiture. 
648.  Agent   cannot  recover    Com- 
pensation from  either  Party 
when   double   Agency    un- 
known. 


^  644.  Same  Subject  — May  recover 
when  double  Agency  wa* 
fully  known  and  assented  to. 

645.  Agent  cannot  Recover  Com- 

pensation if  Agency  was  un- 
lawful. 

646.  When  Agent  can  recover  for 

extra  Services. 

647.  Principal's  Right  of  Recoup- 

ment. 

648.  Same   Subject  — What  Dam- 

ages may  be  Recouped. 

649.  Same  Subject  —  Limit  of  Re- 

covery. 
.  650.  Same  Subject  — Not  cut  off 
by  Assignment. 
661.  No    Recoupment  against    an 
Infant. 

II.  The  Agknt's  Right  to  Reim- 
bursement. 

652.  Agent  must  be  reimbursed  for 

proper  Outlays. 

ni.  The  Agent's  Right  to  Indem- 
nity. 

653.  Agent    must  be   indemnified 

against  Consequences  of  law- 
ful Acts. 

654.  No  Indemnity  where  Act  ia 

unlawful. 


IV. 


Pbg 


The  Agent's  Right  to 
tection  prom  Injury. 

655.  In  general. 

From  the  Bisks  incident  to  lJi4  Busi- 
ness. 

656.  General  Rule — Principal  not 

liable. 

From  the  Negligenoe  of  the  Princi- 
pal. 

657.  Principal  responsible  for  his 

own  Negligence. 

1.  For  dangerous  Premises. 

2.  For  dangerous  Tools   and 
Machinery. 

8.  For  Injuries  resulting  from 
Failure  to  repair  as  agreed. 
661.  Same  Subject. 


658. 
659. 

660. 


430 


Oliap.  lY.]  LIABILITY   OF   PRINCIPAL   TO    AGENT. 


§  59  G. 


§  682.  4.  For  Employment  of  incom- 
petent Servants. 

663.  6.  For    injuries     outside    of 

Employment. 

S.  For  Negligence  of  his  General  Su- 
perintendent. 

664.  Principal  cannot  relieve  him- 

self by  delegating  Duties. 

665.  Liable  for  Negligence  of  gen- 

eral Agent  or  Superintend- 
ent. 

666.  When  liable  to  Agents  of  Con- 

tractor. 

4.  For  Negligence  of  Fellow  Servants. 

667.  Principal  not  liable  to  one  ser- 

vant   for    Negligence  of    a 
Fellow  Servant. 

668.  Same  Subject—  Who  is  a  Fel- 

low Servant. 

669.  Volunteer    assisting    Servant 

cannot  recover. 

670.  Contributory    Negligence    of 

Servant  defeats  his  Recovery. 

671.  Agreements  to  waive  Liability 

invalid. 

v.  Agent's  Right  to  a  Lien. 

673.  In  general. 

673.  Lien    defined  —  General    and 

particular  Liens. 

674.  Foundation  of  the  Claim  of 

Lien. 

675.  Nature  of  Lien. 

676.  Requisites   of    Lien  —  Posses- 

sion. 

677.  Possession   must   have    been 

lawfully  acquired. 


§  678.  Possession  must  be  continu- 
ous. 

679.  Possession  must  have  been  ac- 

quired in  Course  of  Employ- 
ment. 

680.  No  Lien  if  contrary  to  Inten- 

tion of  Parties — Waiver. 

681.  Waiver  by  inconsistent  Coa- 

duct. 
683.  Claim  of  Lien  no  Waiver  of 
personal  Remedies. 

683.  How  Lien  may  be  enforced. 

684.  How   these    Rules    apply    to 

Agents. 

685.  Agent's  Lien  ordinarily  a  par- 

ticular Lien. 

686.  For  what  Sums  the  Lien  at- 

taches. 

VI.  Agent's  Right  of  Stoppage  in 

Tbansit. 

687.  Agent    liable    for    Price    of 

Goods   may  stop    them    in 
Transit. 

688.  Right  exercised    as  in   other 

Cases. 

689.  Right  of  such  an  Agent  to 
retain  Title  until  paid  for. 

VII.  RlQfiTS  OP   SUBAQENT  AGAINST 

Principal. 

690.  When    Principal    liable    for 
his  Compensation. 

691.  Same  Rules  govern  Reimburse- 

ment and  Indemnity. 

692.  How  as  to  Protection  against 

Injury. 

693.  When  Subagent  entitled  to  a 

Lien. 


§  596      In  general  —  Payment  of  Compensation  —  Indemnity. 

It  is  obvious  that  the  most  important  claims  which  the  agent  has 
upon  the  principal  are  1.  The  payment  of  his  compensation,  and 
2.  Indemnity  against  loss  and  injury  incurred  in  the  performance 
of  his  duties.  Incidental  to  these,  and  to  secure  their  recogni- 
tion and  observance,  is  3.    The  agent's  right  of  lien. 


431 


§  597.  THE    LAW    OF    AGENCY.  [Book  lY. 

I. 

THE!   PAYMENT   OF   COMPENSATION. 

1.     The  Agent^a  Right  to  Compensation. 

§  697.  Agreement  to  pay  Compensation — Express— Implied. 
It  is  entirely  competent  for  the  parties  to  agree  expressly  not 
only  that  the  agent  shall  be  compensated  for  his  services,  but  that 
his  compensation  shall  be  a  certain  sum,  or  shall  be  paid  in  a  cer- 
tain way,  or  shall  be  ascertained  in  a  particular  manner.  It  is 
also  competent  for  them  to  agree  that  he  shall  be  compensated 
only  in  a  certain  event,  or  that  he  shall  receive  no  compensation 
at  all. 

In  practice,  however,  it  is  frequently  if  not  commonly  found 
that  the  parties  have  not  made  any  express  agreement  at  all,  or 
that  if  they  have  attempted  to  do  so,  the  agreement  does  not  pro- 
vide for  all  of  the  details  or  contingencies,  so  that  the  questions 
are  constantly  arising,  when  will  the  law  imply  a  promise  to  pay 
compensation,  and  how  shall  the  amount  to  be  paid  be  ascer- 
tained. 

§598.  Express  Agreement  conclusive.  Wherever  the  parties 
have  expressly  agreed  upon  the  fact  that  compensation  shall  or 
shall  not  be  paid,  or  shall  be  paid  only  in  a  certain  event,  that  agree- 
ment, in  the  absence  of  fraud  or  mistake  of  fact,  is  conclusive. 
If  the  principal  has  expressly  agreed  to  pay  a  compensation,  the 
fact  that  the  service  was,  through  no  fault  of  the  agent,  of  no 
value  to  him  furnishes  no  excuse  for  not  paying.  So  if  the  agent 
has  expressly  agreed  to  serve  without  compensation,  he  will  have 
no  claim  for  wages  however  beneficial  his  services  may  have 
proved  to  the  principal.  And  so  if  compensation  is  to  be  paid 
only  in  a  certain  event  or  upon  the  happening  of  a  given  contin- 
gency, no  claim  can  arise  except  upon  the  happening  of  the  event 
on  contingency  agreed  upon.* 

§  599.  When  Agreement  must  be  express.  There  are  cer- 
tain cases  where  the  promise  to  pay  compensation  must  have  been 
express.  Thus  where  services  are  rendered  for  each  other  by 
near  relatives  or  others  constituting  members  of  the  same  family, 
the  law  presumes  that  they  are  inspired  by  motives  of  affection, 

*  Zerrahn  «.  Ditson,  17  Mass.  563;  Lockwood  «.  Levick,  8  0.  B.  (N.  8.)  608. 

432 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL    TO    AGENT. 


§600. 


gratitude  or  other  considerations  than  those  of  a  pecuniary 
nature,  and  in  order  to  rebut  this  presumption,  there  must  be 
clear  and  unequivocal  evidence  of  a  promise  or  agreement  to  pay 
for  the  services  rendered.  There  must  be  shown  to  have  been 
something  more  than  a  mere  intention  to  pay,  based  upon  grati- 
tude or  friendship.  There  must  have  been  an  agreement  to  pay.' 
This  rule  is  most  frequently  applied  to  cases  where  the  relation 
sustained  is  rather  that  of  master  and  servant  than  that  of  prin- 
cipal and  agent,  but  the  underlying  principle  is  the  same.' 

§  600.  When  Agreement  to  pay  will  not  bo  implied.  The 
mere  fact  that  services  have  been  rendered  by  the  agent  for  the 
principal  is  not,  of  itself,  sufficient  to  raise  a  promise  to  pay 
therefor,  but  they  must  have  been  rendered  under  circumstances 
from  which  a  promise  to  pay  can  be  inferred.'  No  recovery  can 
be  had  for  services,  however  valuable,  or  however  ne^.essary, 
which  have  been  rendered  without  the  express  or  implied  request 
of  the  principal.  A  man  can  not,  by  mere  obtrusion  of  services 
create  an  obligation  to  pay  for  them.* 


1  Hall  V.  Finch,  29  Wis.  278,  9  Am. 
Rep.  559;  Thorp  t>.  Bateman,  87 
Mich.  68;  Coe  v.  Wager,  43  Mich.  49 
Duffey  V.  DufiEey,  44  Penn.  St.  399 
Eouck  V.  Houck,  99  Penn.  St.  553 
Hall  V.  Hall,  44  N.  H.  293;  Kaye 
c.  Crawford,  23  Wis.  322;  Griffin 
V.  First  National  Bank,  74  111. 
259;  Wilson  v.  Wilson,  52  Iowa, 
44;  Allen  t>.  Allen,  60  Mich.  635; 
Briggs  V.  Briggs,  46  Vt.  571 ;  Scully 
e.  Scully,  28  Iowa,  548;  Curry  v. 
Curry,  114  Penn.  St.  — ;  Keegan  «. 
Malone,  62  Iowa,  208;  Ayres  v.  Hull, 
5  Kans.  419;  Sawyer  v.  Hebard,  58 
Vt.  375;  King  v.  Kelly.  28  Ind.  89; 
Faloon  v.  Mclntyre,  118  111.  292; 
Morris  v.  Barnes,  35  Mo.  412. 

«  See  the  discussion  in  Wood's  Mas- 
ter and  Servant,  sec.  72.  See  also  26 
Cent.  L.  Jour.  51. 

•Wood  V.  Brewer,  66  Ala,  570; 
Cincinnati,  &c.  R.  R.  Co.  «.  Lee,  37 
Ohio  St.  479;  Lange  v.  Kaiser,  34 
Mich.  318. 

<  This  rule  is  tersely  expressed  by 


Bell,  J.  as  follows:  "It  is  settled 
that  no  man  can  do  another  an  unso- 
licited kindness,  and  make  it  a  matter 
of  claim  against  him;  and  it  makes 
no  difference  whether  the  act  was 
done  from  mere  good  will  or  in  the 
expectation  of  compensation.  Unless 
the  party  benefited  has  done  some 
act  from  which  his  assent  to  pay  for 
the  service  may  be  fairly  inferred,  he 
is  not  bound  to  pay."  In  Chad  wick 
V.  Knox,  31  N.  H.  226,  64  Am.  Dec. 
829;  citing  Reason  v.  Wirdnam,  1 
Car.  &  P.  434;  Pelly  v.  Rawlins 
Peak's  Ad.  Cas.  226;  Alexander  v. 
Vane,  1  Mees.  &  Wels.  511;  Parker*. 
Crane,  6  Wend.  (N.  Y.)  647;  1  Sel.  N. 
P.  48;  2  Greenl.  Ev.  83.  See  also, 
Palmer  v.  Haverhill,  98  Mass.  487; 
Bartholomew  v.  Jackson,  20  Johns, 
(K  Y.)  28,  11  Am.  Dec.  237.  In 
this  case  the  plaintiff  had  voluntarily 
removed  defendant's  wheat  from  a 
burning  field  to  save  it  from  des- 
truction. Platt,  J.  said:  "The 
plaintiff  performed  the  service  with- 


28 


433 


§  600.  THE   LAW    OF   AGENCY.  [Book  lY. 

So  no  recovery  can  be  had  for  services,  although  requested,  if 
thej  were  rendered  as  a  spontaneous  act  of  kindness  or  in  hope 
of  receiving  compensation,  but  without  an  express  or  implied 
promise  to  pay  it.  A  fortiori  can  no  recovery  be  had  for  ser- 
vices volunteered  upon  the  chances  of  obtaining  future  employ- 
ment.    Such  services  are  mere  gratuities.' 

Illustrations  of  this  are  found  where  one  undertakes  to  do 
some  act  for  another  out  of  kindness  or  friendship  merely,  or 
with  a  hope  and,  perhaps,  an  expectation  that  the  other  will  rec- 
ognize the  value  of  the  services  and  compensate  him  accordingly. 
So  architects,  engineers,  authors,  artists  and  others  who  under- 
take to  furnish  a  satisfactory  plan,  design,  machine,  story  or  other 
thing  in  competing  for  a  prize,  contract  or  reward,  but  without 
success,  can  have  no  claim  for  compensation  in  the  absence  of  an 
express  agreement  to  pay  it,  although  they  may  have  been  re- 
quested to  compete.' 

No  contract  for  payment  will  be  implied  where  the  implica- 
tion would  be  repugnant  to  an  express  promise,  or  where  the 
circumstances  rebut  all  the  grounds  upon  which  a  promise  to 
pay  could  be  inferred.'  So  where  the  circumstances  account  for 
the  transaction  on  some  ground  more  probable  than  that  of  a 
promise  of  recompense,  no  promise  will  be  implied.* 

All  contracts  for  services  must  be  good  or  bad  at  their  incep- 

out  the  privity  or  request  of  the  de-  Bay  (S.  C)  101,  1  Am.  Dec.  632:  St. 
fendant,  and  there  was,  in  fact,  no  Jude's  Church  r.  VanDenberg,  31 
rromise  express  or  implied.  If  a  Mich.  237;  Livingston  ».  Ackeston,  5 
man  humanely  bestows  his  labor,  and  Cow.  (N.  Y.)  531 ;  Nicholson  v.  Chap- 
even  risks  his  life,  in  voluntarily  man,  2  H.  Bbickstone  254;  Smart  v. 
aiding  to  preserve  his  neighbor's  Guardians,  36  Eng.  L.  «&  Eq.  496; 
house  from  destruction  by  fire,  the  Otis  c.  Jones,  21  Wend.  (N.  Y.)  394; 
law  considers  the  service  rendered  as  Ehle  «.  Judson,  24  Wend.  (N.  Y.)  97; 
gratuitous,  and  it  therefore  forms  no  Eastwood  ®.  Kenyon,  11  Ad.  &  El. 
ground  of  action."  Seals  «.  Edmond-  438;  Hertzog  ».  Hertzog,  29  Penn.  St. 
son,  73  Ala.  295,  49  Am.  Kep.  51;  465;  Seals  i).  Edmondson,  73  Ala.  295; 
Allen  V.  Bryson,  67  Iowa,  591,  56  49  Am.  Rep.  51. 
Am  Rep  358.  '  Scott  v.  Maier,  56  Mich.  554,  56 
1  Osborne  v.  Governors,  2  Strange,  Am.  Rep.  396;  Palmer  v.  Haverhill, 
728;  Scott  v.  Maier,  56  Mich.  554,  s.  98  Mass.  487. 

c  sub.  nom;  Scott  t>.  Martin,  56  Am.  ^  Watson  b.  Steever,  25  Mich.    388; 

Rep.  402;  Wood  t.  Ayres,  39  Mich.  Coe  «.  Wager,  42  Mich.  49;  St.  Jude'a 

345  33  Am.  Rep.  390;  Bartholomew  Church  v.  VanDenberg,  31  Mich.  287. 
V.  Jackson,  20  Johns.  (N.  Y.)  28,  11  *  Wood  «.  Ayres,  39  Mich.   345,  33 

Am.  Dec.  237;  James  t).  O'Driscoll,  3  Am.  Rep.  396. 

434 


Ohap.  lY.]  LIABILITY    OF    PKINCIPAL    TO    AGENT.  §  601. 

tion,  and  a  party  will  not  be  permitted  on  account  of  subsequent 
events,  to  recover  for  services  which  when  rendered  were  in- 
tended to  be  gratuitous.* 

Neither  will  purely  gratuitous  services  furnish  a  good  consid. 
eration  for  a  subsequent  promise  to  pay  for  them,*  but  when 
beneficial  services,  not  intended  to  be  gratuitous,  have  been  ren- 
dered under  such  circumstances  that  no  legal  claim  exists  there, 
for,  a  subsequent  promise  to  pay  in  consideration  of  the  benefit 
received  is  binding.* 

§  601.  When  Promise  to  pay  will  be  implied.  But  when- 
ever services  are  rendered  by  one  person  at  the  express  request 
of  another,  the  law  will,  except  in  the  case  of  near  relatives  or 
others  who  are  members  of  the  same  famil}',  presume  that  the 
person  for  whom  they  were  rendered  intended  to  pay  for  them.* 
If  the  latter  alleges  that  they  were  to  be  gratuitous,  the  burden 
of  proof  is  upon  him  to  establish  it."  This  is  particularly  true 
where  the  services  rendered  are  in  the  line  of  the  agent's  business 
or  profession,  or  of  a  kind  that  are  usually  paid  for.  Thus  if 
one  employs  an  attorney  to  try  his  case  in  court,  or  a  physician 
to  attend  his  child  in  illness,  or  an  auctioneer  to  sell  his  goods  at 
an  auction,  or  a  broker  to  effect  insurance  upon  his  ship,  or  an 
architect  to  superintend  the  building  of  his  house,  but  says  noth- 
ing about  paying,  the  law  will  presume  that  the  agent  was  to  be 
paid  for  his  services,  and  if  the  party  alleges  that  the  services 
were  to  be  rendered  without  charge,  he  must  prove  it. 

So  though  there  be  no  express  request,  a  promise  to  pay  may 
be  implied  from  the  circumstances  of  the  case.  Thus  if  bene- 
ficial services  are  rendered  for  a  person  under  such  circumstances 
as  to  show  that  the  agent  expects  to  be  paid  for  them  as  a  matter 
of  right,  and  the  person  for  whom  they  are  rendered  does  noth- 
ing to  disabuse  him  of  this  expectation,  but  permits  him  to  ren- 

»  James  v.  O'Driscoll,  2  Bay  (8.  N.  J.  Eq.  246;  Lee  v.  Lee,  6  G.  &  J. 
Car.)  101,  1  Am.  Dec.  632.  (Md).  316;  Little  v.  Dawson,  4  Dall. 

2  Allen  V.  Bryson,  67  Iowa,  591,  56      (Penn.)  111. 

Am.  Rep.  358,    citing  Cook  v.  Bnid-  *  VanArmcn  v.   Byington,    88  111. 

ley,  7  Conn.  57,  18  Am.  Dec.  79;  Wil-  443;    Weeks    v.    Holmes,    12  Cush. 

liams  v.  Hathaway,    19  Pick.  (Mass.)  (Mass.)  215. 

887;  Dawson  v.  Dawson,  12  Iowa,  512;  «  Dougherty  v.  Whitehead,  81  Mo. 

McCarthy  v.  Hampton,  61  Iowa.  283.  255;  Lewis  v.  Trickey,  20  Barb.  (N. 

3  Snyder     v.      Castor,    4    Yeates  Y.)  387. 
(Penn.)  353;  Davison  v.   Davison,  13 

435 


§  601.  THE   LAW    OF    AGENCY.  [Book  IV. 

der  the  services,  the  law  will  imply  a  promise  to  pay  for  them.* 
This  is  but  the  ordinary  rule  of  good  faith.  As  has  been  seen, 
services  are  not  to  be  obtruded  upon  another  against  his  will,  but 
one  who  stands  by  and  permits  another  to  render  him  valuable 
services  under  such  circumstances  as  to  convince  any  reasonable 
man  that  they  were  being  done,  though  mistakenly,  with  the 
expectation  of  being  paid  for  them  as  a  matter  of  legal  right 
and  not  as  a  matter  of  hope  or  expectancy,  and  says  or  does 
nothing  to  prevent  it,  can  not  be  permitted  to  avail  himself  of 
the  benefits  of  the  services  but  refuse  to  pay  for  them,  upon  the 
ground  that  they  were  rendered  without  his  request  or  order.' 

In  accordance  with  these  principles  it  is  held  that  a  consulting 
physician  or  surgeon  who,  at  the  request  of  the  attending  physi- 
cian, and  with  the  consent  of  the  patient,  renders  services  to  the 
patient,  may  recover  their  reasonable  value  from  the  patient 
although  the  attending  physician  had  agreed  with  the  patient  to 
pay  therefor,  of  which  fact  the  consulting  physician  was  ignor- 
ant. Agreements  of  such  a  nature  are  exceptional,  said  the 
court,  and  if  the  exceptional  contract  is  to  bind  the  consulting 
physician  or  surgeon  it  must  be  brought  to  his  knowledge  before 
his  services  are  accepted  by  the  patient.'     So  where  an  attorney 

•  McCrary  v.    Ruddick,   33  Iowa,  formed  for  his  benefit  and  on  his 

621;  James  v.   Bixby,   11  Mass.  34;  account,   makes    no    objection,    but 

Muscott  V.  Stubbs,  24  Kan.  520;  Gar-  permits  the  party  to  continue  doing 

rey  v.  Stadler,  67  Wis.  512,  58  Am.  the    work  and  performing  the  ser- 

Rep.   877;  Shelton    v.  'Johnson,    40  vices,"    In   Muscott   «.    Stubbs,   24 

Iowa,  84;  Phillips  v.  Jones,  1  Ad.  &  Kan.  520. 

Ell.  333;  Peacock  v.  Peacock,  2  Camp.  8  Garrey  v.  Stadler,  67  Wis.  512,  58 

45;  Scully  v.  Scully,  28  Iowa,  548;  Am,   Rep,   877;  Shelton  v.  Johnson, 

Waterman  v.  Gilson,  5  La,  Ann.  672;  40  Iowa  84.     In  this    case.    Day,  J. 

Lucas  V.  Godwin,  3  Biug.  (K  C.)737;  lays  down  the  broad  rule  that  "where 

Trustees  D.  Allen,  14  Mass.  175;  Wes-  a  party,  knowingly  and  without  ob- 

ton  V.  Davis,  24  Me.  374 ;  Dougherty  jection,    permits    another    to  render 

V.  Whitehead,  31  Mo.    255;  Louis  v.  service  for  him  of  any  kind  what- 

Trickey,  20  Barb.  (N,  Y.)  387.  ever,  the  law  implies  a   promise  to 

«The  principle  here  involved  is  pay  what  the  same  is  reasonably 
said  by  Brewer,  J.  to  be  "  not  worth,"  See  also  Bartlett  v.  Spark- 
merely  that  one  party  has  done  work  man,  —  Mo.  — ,  14  West.  Rep.  725, 
which  benefits  the  other,  because  it  where  the  act  of  an  agent  in  calling 
was  never  the  law  that  one  party  doctor  A,  though  sent  for  doctor  B, 
could  force  a  contract  upon  the  other,  was  held  ratified  because  the  princi- 
but  also  that  such  other  party,  know-  pal  did  not  dissent. 
ing  that  the  services  are  being  per- 

436 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL   TO    AGENT.  §  603. 

who  had  undertaken  to  defend  a  certain  action  and  pay  for  such 
counsel  as  he  desired,  employed  as  counsel,  a  firm  of  attorneys 
who  were  not  informed  of  this  arrangement,  and  the  counsel 
performed  valuable  services  for  the  defendants  with  their  knowl- 
edge and  cooperation,  it  was  held  that  the  defendants  were  liable 
for  the  value  of  the  services  so  rendered.  The  court  said  that 
if  the  defendants  did  not  intend  that  the  consulting  attorneys 
should  look  to  them  for  payment  for  the  services  they  were  ren- 
dering, they  should  have  objected  or  informed  them  of  the  spe- 
cial contract,  but  that  by  their  silence  with  full  knowledge  of 
what  was  being  done,  and  by  receiving  and  enjoying  the  benefit 
of  the  services  rendered,  a  promise  to  pay  therefor  would  be  im- 
plied. It  would  have  been  otherwise  if  the  consulting  attorneys 
had  been  informed  of  the  special  arrangement  or  had  the  circum- 
stances been  such  as  to  raise  a  presumption  that  they  had  such 
information.* 

S  602.  Unauthorized  Agent  entitled  to  Compensation  if  Acts 
are  ratified.  As  has  been  seen,  the  effect  of  the  ratification  of 
the  unauthorized  act  of  an  agent  is  retroactive  and  gives  validity 
to  the  act  from  the  beginning."  If  therefore  one  acts  as  agent 
without  authority  but  his  acts  are  subsequently  ratified  by  the 
principal,  he  is  entitled  to  the  same  compensation  and  the  same 
remedies  as  if  the  acts  had  been  originally  duly  authorized.' 

2.     The  Amount  of  the  Compensation. 

§  603.  Express  Contract  governs.  The  question  of  the  agent's 
right  to  receive  a  compensation  having  been  determined  in  his 
favor,  the  next  inquiry  is  as  to  the  amount  to  be  paid  to  him.  If 
the  parties  have  made  an  express  agreement  in  reference  to  this 
matter,  such  agreement  is  conclusive  upon  all  questions  arising 
within  its  scope.*  There  can  not  be  both  an  express  and  an  implied 
agreement  in  reference  to  the  same  matter,  and  the  express  agree- 
ment, if  any,  must  govern. 

»  McCrary    v.   Ruddick,    33  Iowa,  «  See  ante,  %%  171,  174. 

521.     See  case  where  the  same  prin-  •  Wilson  v.  Dame,  58  N.  H.  893. 

ciple  was  recognized,  but  where  the  *  Wallace  v.   Floyd,   29  Penn.  St. 

court  held  that  the  facts  did  not  war-  184,  72  Am.  Dec.  620;  Hamilton  v. 

rant   the    application.      Muscot     v.  Frothingham,  59  Mich,  253. 
Stubbs,  24  Kan.  520. 

437 


§  604.  THE    LAW    OF    AGENCY.  [Book    IV, 

§  604.  May  be  left  for  Principal  to  determine.  It  is  compe- 
tent for  the  parties  to  agree  that  the  compensation  shall  be  such 
an  amount  as  the  principal  may  fix.  Thus  if  the  agent  agree  to 
serve  for  such  compensation  as  the  principal  shall,  at  the  termin- 
ation of  the  agency,  determine  to  be  right  and  proper  under  all 
the  circumstances,  the  amount  so  fixed  by  the  principal,  if  he 
acts  honestly  and  in  good  faith,  is  conclusive,  although  as  a  mat- 
ter of  fact  it  be  less  than  the  services  were  really  worth.' 

Agreements  of  this  sort,  however,  must  be  clear,  and  appear  to 
have  been  fairly  made." 

§  605.  In  the  Absence  of  express  Agreement,  Law  implies  rear 
sonable  Compensation.  Where,  however,  there  is  no  express 
agreement  as  to  the  amount,  the  law  implies  a  promise  to  pay 
what  the  services  are  reasonably  worth.  ^  The  question  of  rea- 
sonable value,  in  this,  as  in  other  cases,  is  one  to  be  determined 
from  all  the  facts  and  circumstances  surrounding  the  case.* 

§  606.  What  Elements  may  bo  considered.  In  determining 
the  amount  of  this  reasonable  compensation,  there  are  many  ele- 
ments to  be  taken  into  consideration.  All  services  are  not  to  be 
estimated  by  the  same  standard.  In  every  case  the  nature  of  the 
undertaking,  its  dangers  and  responsibilities,  the  amount  involved, 
the  skill,  ability  and  reputation  of  the  agent,  the  result  attained, 
the  previous  study,  preparation  and  expense  required,  as  well  as 
the  actual  time  consumed,  are  to  be  taken  into  consideration,  and 
the  value  of  the  services  is  to  be  estimated  accordingly.' 

S  607.  What  Evidence  as  to  Value  is  admissible.  In  many 
cases  custom  may  have  gone  far  towards  establishing  the  amount 
of  compensation  to  be  paid  for  certain  services,  and  where  par- 

»  Butler   V.    Winona    Mill  Co.,  28  Millar  v.  Cuddy,  43  Mich.  273.  38  Am. 

Minn.  205,  41  Am.  Rep.  277.  Rep.  181;  Stockbridge  v.  Crookcr,  84 

« Millar©.  Cuddy,  43  Mich.  273,38  Me.    349;   Nauman  v.   Zoerhlaut,  21 

Am.  Rep.   181.     This  case  has  been  "Wis.  46G;  Jones®.  School  District,  8 

cited    as    opposed    to  the  preceding  Kans.  362. 

one.     Upon    examination    it  will  be  *  Ruckman  v.  Bergholz,  38  N.  J.  L. 

found  not  to  be  so.     In  the  former  531;  Eggleston  ©.  Boardman,  37Mich. 

there  was  no  question  as  to  the  con-  14. 

tract,  in  the  latter  the  court  held  that  s  Eggleston  r.  Boardman.  37  Mich, 

such  a  contract  could  be  made,  but  14;  Vilas  v.    Downer,    21    Vt.    419; 

had  not  been  in  that  case.  Kentucky  Bank  v.   Combs,    7  Penn. 

8  McCrary  v.  Ruddick,  33  Iowa  520;  St.  543;  Stanton  v.  Embrey,  .93  U.  8. 

Shelton    e.    Johnson,    40    Iowa    84;  548. 

438 


Chap.  IV.]  LIABILITY    OF    PlilNCIPAL    TO    AGEXT.  §  607. 

ties  either  expressly  or  impliedly  deal  with  reference  to  such  a 
custom,  evidence  of  the  amount  so  fixed  is  admissible.' 

So  evidence  of  what  is  usually  charged  for  similar  services  by 
other  persons  in  the  same  line  of  business  at  tiie  same  place  is 
admissible.*  It  is  also  competent  to  show  by  persons  acquainted 
with  the  value  of  like  services,  what  is  their  opinion  as  to  the  value 
of  the  services  in  question.'  This  is  a  well-recognized  use  of 
what  is  ordinarily  known  as  expert  testimony.  If  such  a  witness 
knows  the  value  of  such  services,  it  is  not  necessary  that  he 
should  be  shown  to  be  acquainted  with  the  amounts  which  others 
are  in  the  habit  of  charging  in  like  cases,*  nor  is  it  necessary  that 
he  should  have  personal  acquaintance  with  the  agent,  or  personal 
knowledge  of  the  services  rendered,'  but  he  may  give  his  opin- 
ion upon  a  hypothetical  question  covering  the  elements  in  con- 
troversy. 

Ordinarily  the  testimony  of  what  such  a  witness  would  him- 
self have  charged  is  not  admissible,'  yet  if  the  evidence  given  in 
reply  to  such  a  question  is  manifestly  based  upon  the  witness's 
opinion  as  to  its  value  and  not  upon  any  uncertain  standard  of  his 
own,  the  form  of  the  question  might  be  disregarded.' 

So  evidence  of  what  was  paid  to  a  particular  agent  in  another 
case  is  not,  ordinarily,  admissible;  such  evidence  having  no  neces- 
sary tendency  to  prove  either  the  usual  charge  or  the  actual  value, 
inasmuch  as  there  may  have  been  in  that  case  peculiar  circum- 
stances or  elements  which  would  not  exist  in  another."  But  up- 
on cross-examination,  in  order  to  test  either  the  good  faith  or  the 
qualifications  of  the  witness,  it  might  be  proper  to  inquire  of 
him  what  he  would  have  performed  the  same  service  for,*  or  to 
ascertain  the  extent  of  his  knowledge  as  to  the  price  usually  paid 
by  inquiring  what  had  to  his  knowledge  been  paid  in  given  cases.'" 

1  Stanton  v.  Embrey,  93  U.  S.  548.  beck  v.  New  York,  &c.  R.  R.  Co.,  36 

«  Egglestoa  v.  Boardman,  87  Mich.  Barb.  (N.  Y.)  644. 

14;  Stanton  «.  Embrey,  93  U.  S.  548.  «  Pairchild  v.   Railroad  Co.,  8  IIL 

3  Bowen  v.   Bowen,    74  Ind.   470;  App.  591. 

Johnson  v.  Thompson,  72  Ind.  167,  ^  See  Elting  v.  Sturtevant,  41  Conn. 

87  Am.  Rep.  152;  Parker  «.  Parker,  176. 

83  Ala.  459.  8  Eggleston  v.  Boardman,  37  Mich. 

<  Commissioners  v.  Chambers,    75  14;  Lakeman  o.  Pollard,  43  Me.  .463, 

Ind.  409.  69  Am.  Dec.  77. 

»  Mish  v.  Wood,  34  PeHn.  St.   451;  »  Oilman  v.  Card,  29  Ind.  391. 

Miller  v.  Smith,  113  Masa.  470;  Whit-  '•  Lakeman  v.  Pollard,  tupra. 

439 


§  ^'Oc 


THE    LAW    OF    AGENCY.  [Book  lY. 


8  608.  Agent  continuing  after  Expiration  of  Term  presumed 
to  be  at  prior  Compensation.  If  an  agent  employed  at  a  com- 
pensation for  a  definite  term,  continues  in  the  principal's  service 
after  the  expiration  of  that  term,  without  any  new  or  other  ar- 
rangement, he  will  be  presumed  to  be  continuing  on  the  old 
terms  and  there  can  be  no  recovery  on  a  quantum  meruit.' 

3.      When  Compensation  is  Considered  to  he  Earned. 

8  609.  In  general.  The  question  when  the  agent's  compen- 
sation is  to  be  deemed  to  be  earned,  is  one  depending  upon  a 
variety  of  considerations. 

Thus  it  may  appear  : — 

a.  That  the  agent  has  fully  completed  his  undertaking. 

h.  That  he  has  only  partially  completed  his  undertaking. 

c.  Tiiat  he  has  done  nothing  at  all. 

The  fact  that  he  has  not  completed  his  undertaking  may  be  at- 
tributable to  one  of  the  following  causes  : — 

a.  That  his  authority  was  revoked  before  he  had  had  time  or 
opportunity  to  perform  fully. 

h.  That  he  had  abandoned  the  agency  before  he  had  made  full 
performance. 

The  revocation  of  his  authority  may  have  been  : — 

a.  By  act  of  the  principal. 

h.  By  operation  of  law. 

If  revoked  by  the  act  of  the  principal,  that  act  may  have 

been : — 

a.  For  sufficient  cause. 

h.  For  insufficient  cause. 

So  if  the  agent  abandoned  the  agency,  such  abandonment  may, 
under  the  circumstances  have  been : — 

a.  Justifiable,  or 

h.  Unjustifiable. 

Again  if  the  undertaking  was  performed  in  part,  such  part 
performance  may  have  been  : — 

a.  Of  value  to  the  principal,  or 

h.  Of  no  value  to  the  principal. 

§  610.     Compensation  earned  when  Undertaking  fully  com- 

»  Wallace  e.  Floyd,  29  Penn.  St.  Albright,  86  Penn.  St.  371.  See  ante, 
184,    72    Am.    Dec.    620;   Rauck  e.      §  212. 

440 


Chap.  ly.]  LIABILITY    OF    PRINCIPAL   TO    AGENT.  §  612. 

pleted.  When  the  agent  has  fully  completed  his  undertaking  ac- 
cording to  its  terms,  he  is  entitled  to  his  compensation.  In  many 
cases,  there  is  no  difficulty  in  determining  when  this  time  arrives, 
but  in  others  it  is  not  easy  to  decide  upon  the  full  measure  of  the 
agent's  undertaking  or  upon  the  fact  of  its  performance.  Each 
case  rests  upon  its  own  peculiar  facts  and  circumstances,  and  the 
inquiry  in  every  instance  must  be:  1.  "What  did  the  agent  un- 
dertake to  do?  2.  Has  he  done  it,  and  if  not,  then,  3.  To  whose 
act  or  to  what  occurrence,  is  the  failure  to  be  attributed. 

§  611.  Same  Subject— When  full  Performance  a  Condition  pre- 
cedent. It  is  entirely  competent  for  the  parties  to  agree  that  the 
full  performance  of  a  particular  undertaking  shall  be  a  condition 
precedent  to  the  right  to  recover  any  compensation,  and  where 
such  a  contract  is  fairly  made  it  will  be  enforced,  and  will  be  con- 
clusive unless  it  appears  that  the  performance  has  been  waived 
or  prevented  by  the  principal. 

Thus  where  by  a  special  contract,  a  broker  is  not  to  be  paid  his 
commission  unless  he  sells  certain  property  at  a  stipulated  price, 
the  sale  by  him  at  such  a  price  is  condition  precedent  to  his  right 
to  compensation,  unless  pending  the  negotiations  and  while  his 
authority  remains  unrevoked,  the  principal  consents  to  a  sale  at 
a  different  price.'  For  a  like  reason  if  the  promise  is  to  pay  a 
compensation  if  the  sale  is  effected  within  a  certain  time,  a  sale 
within  that  time,  unless  excused  or  prevented  by  the  principal, 
is  a  condition  precedent  to  the  right  to  compensation.* 

§  612.  Same  Subject— Not  defeated  by  Principal's  Default. 
If  it  be  found  that  the  agent  has  done  all  that  he  undertook  to 
do,  his  right  to  his  compensation  is  complete,  and  he  cannot  be 
deprived  of  it,  because  the  principal  then  fails  to  avail  himself 
of  the  benefits  of  the  act  or  refuses  to  do  what  he  had  agreed  to 
do  upon  performance.  Neither  can  the  principal  then  defeat  the 
agent's  claim  by  revoking  his  authority  or  withdrawing  the  sub- 
ject-matter from  his  possession  or  control.' 

Thus  an  agent  who  is  employed  to  procure  a  loan  for  his  prin- 
cipal is  entitled  to  his  commission  when  he  procures  a  lender, 
ready,  willing  and  able  to  loan  the  money  upon  the  terms  pro- 
posed.    His  right  to  his  commission  does  not  depend  upon  the 

»  Jones  V.  Adler,  34  Md.  440.     See  « Irby  v.  Lawshe,  62  Ga.  216. 

Stewart  v.  Mather,  32  Wis.  344.  »  See  cases  cited  in  note  3,  post. 

441 


§  C13.  THE   LAW    OF    AGENCY.  [Book    IV. 

contingency  of  the  principal's  acceptance  of  the  loan,  but  upun 
his  performance  of  his  part  of  the  contract,  and  the  principal 
cannot  deprive  the  agent  of  his  commission  by  refusing  to 
accept  the  loan  which  the  agent's  efforts  have  resulted  in  secur- 
ing.' Upon  the  same  principle  it  is  held  that  an  agent  who 
undertakes  to  negotiate  a  sale  of  his  principal's  property,  has 
earned  his  commission  when  he  has  procured  a  purchaser  who  is 
able,  willing  and  ready  to  purchase  it  upon  the  terms  designated, 
and  the  principal  cannot  defeat  the  agent's  claim  by  then  refusing 
to  sell  at  all,  or  only  upon  different  terms,  or  by  ignoring  the 
agent  and  secretly  consummating  the  sale  with  the  purchaser  so 
produced  without  the  further  intervention  of  the  agent.*  The 
act  of  the  agent  must,  however,  have  been  the  immediate  means 
of  securing  the  purchaser  or  lender.  In  this  case  it  is  the  causa 
causans  and  not  the  causa proxima  that  the  law  looks  to.* 

§  613.  Same  Subject — No  Defense  that  Principal  realized  no 
Profit.  So  if  the  agent  has  done  all  that  he  undertook  to  do, 
the  fact  that  the  services  proved  to  be  of  no  value  to  the  prin- 
cipal, or  that  the  latter  did  not  realize  from  them  the  expected 
profit,  furnishes  no  ground,  upon  which  to  deprive  the  agent 
of  his  compensation.*  And  it  is  immaterial  whether  this  result 
be  attributable  to  the  act  of  the  principal  or  of  third  persons  : 
the  principal  and  not  the  agent  must  run  the  risk  of  his  under- 
taking's proving  profitless. 

1.  Revocation  hy  the  act  of  Principal. 

§  614.  When  Agent  is  entitled  to  Compensation  if  Authority 
is  revoked  before  Performance,  The  question  of  the  agent's 
right  to  compensation  when  his  authority  has  been  revoked 
before  full  performance,  depends,  as  has  been  seen,  upon  a  variety 

»  Vinton  v.   Baldwin,  88  Ind.  104,  Rep.  211.     See  also  Tombs  v.  Alex- 

45  Am.  Rep.  447.  ander,   101    Mass.    255,  3  Am.  Rep. 

»Love  V.    Miller,  53  Ind.  294,  21  349;  Walker  «.  Tirrell,  101  Mass.  257. 

Am.   Rep.  192;   Vinton®.  Baldwin,  3  Am.  Rep.  352;  Richards  t>.  Jackson, 

mpra;  Reyman  v.  Mosher,  71   Ind.  81  Md.  250,  1  Am.  Rep.  49.     See  this 

596;  Moses  ».    Bierling,    31  (N.    Y.)  subject  fully  discussed  under  the  title 

462;  Mooneyu.  Elder,  56  N.  Y.  238;  "Brokers,"  post. 

Fraser  t.  Wyckcfl,    63   N.    Y.  445;  sAttrill  c.  Patterson,  58  Md.  226. 

Wylie  «.  Marine  Nat.  Bank,  Gl  N.  Y.  *  Lockwood  «.   Levick,  8  C.  B.  (N. 

415;  Hinds  v.  Henry,  36  N.  J.  L.  328;  S.)  603. 
Hancan  v.  Moran, — Mich. —  15  West. 

442 


Chap.  IV.]  LIxiBILITY    OF    PlilNCirAL    TO    AGENT.  §  G15. 

of  considerations.  The  revocation  may  have  resulted  from  the 
act  of  the  principal  or  by  operation  of  law;  if  revoked  by  the 
act  of  the  principal,  such  revocation  may,  as  to  the  agent,  have 
been  rightful  or  wrongful. 

It  has  been  seen  ^  that  unless  the  authority  of  the  agent  be 
coupled  with  an  interest,  it  may  be  revoked  by  the  principal  at 
any  time.  As  has  been  already  explained,'  what  is  meant  by 
this  is,  that  the  relation  between  the  principal  and  the  agent, 
being  a  personal  one  founded  upon  trust  and  confidence,  the 
law  will  not  undertake  to  compel  the  principal  to  continue  to 
employ  an  agent  against  his  will, — will  not,  in  other  words, 
enforce  specific  performance  of  the  contract.  But  notwith- 
standing the  fact  that  he  possesses  this  power  to  revoke,  the 
principal,  as  has  been  seen,'  may  expressly  or  impliedly  agree 
not  to  exercise  it,  and  where  such  an  agreement  is  made,  the 
principal  will  be  liable  if  he  violates  it,  without  good  cause,  in 
the  same  manner  as  for  the  violation  of  any  other  contract. 

In  the  absence,  therefore,  of  an  express  or  implied  agreement 
that  the  agency  shall  continue  for  a  definite  time,  it  will  be  pre- 
sumed to  be  an  agency  at  will  merely,  terminable  at  the  will  of 
either  party  at  any  time.*  And  the  same  rule  applies  although 
the  agent  may  have  been  employed  to  do  a  specific  thing,  unless 
there  is  an  express  or  implied  agreement  on  the  part  of  the 
principal  that  he  will  continue  to  employ  the  agent  until  comple- 
tion, and  on  the  part  of  the  agent  that  he  will  continue  to  act 
until  full  performance — it  is  still  at  will  merely ;  no  implied 
agreement  to  continue  the  agency  until  completion  arises  from 
the  mere  fact  of  such  an  employment. 

So,  as  has  been  seen,'  the  agent  may  be  under  an  agreement  to 
act  for  a  certain  period  with  no  corresponding  obligation  on  the 
part  of  the  principal  to  employ  him  during  that  period. 

a.  Authority  Rightfully  Revoked. 
§  615.     Same  Subject— Authority  rightly  revoked.      In  using 
the  expressions  rightfully  2^x6.  wrongfully  revoked  it  will  be  un- 
derstood that  the  question  of  the  principars^otc^/*  to  revoke  is  not 
involved,  but  whether  by  express  or  implied  agreement  having 

'  Ante,  §  204.  «  Ante,  §  210. 

^Ante,  §209.  *  Ante,  g§  211,  213. 

»  Ante,  §  209. 

443 


g  C  1 G.  THE    LAW    OF    AGENCY.  [Book  1 Y. 

undertaken  not  to  exercise  that  power,  he  has,  nevertheless,  exer- 
cised it  in  violation  of  the  agreement.^ 

In  this  view  of  the  case  the  principal  may  rightfully  revoke 
the  agent's  authority  in  one  of  two  cases :  a.  Where  the  author- 
ity was  conferred  to  continue  only  during  the  will  of  the  princi- 
pal; and,  b.  Where,  though  the  authority  was  to  continue  for  a 
definite  time,  it  was  subject  to  revocation  upon  the  happening  of 
a  certain  event  or  upon  the  breach  of  an  express  or  implied  con- 
dition of  its  continuance,  and  the  event  has  happened  or  the 
breach  has  occurred.  What  misconduct  on  the  part  of  the 
agent  will  constitute  a  breach  of  the  implied  conditions  of  every 
employment,  has  previously  been  considered.' 

^616.  Same  Subject— Agency  at  Will  of  the  Principal. 
Where  an  agency  has  been  created  to  endure  at  the  will  of  the 
principal  and  is  terminated  by  him,  without  fault  of  the  agent, 
after  the  agent  has  entered  upon  the  performance,  but  before 
full  completion,  the  agent  will  ordinarily  be  entitled  to  compen- 
eation  for  the  reasonable  value  of  the  work  already  done,  and  to 
be  reimbursed  for  the  costs  and  expenses  which  he  had  fairly 
and  in  good  faith  incurred  in  the  performance  of  the  agency  up 
to  that  time.*  This  will  always  be  the  case  where,  from  the 
nature  of  the  employment,  the  principal  receives  the  full  value 
of  the  agent's  services  as  they  are  rendered.  It  will  also  be  true 
in  all  other  eases  except  those  in  which  the  full  performance  of 
the  undertaking  is  expressly  or  impliedly  made  a  condition  pre- 
cedent to  the  right  to  compensation, — a  subject  hereafter 
considered. 

It  is  undoubtedly  competent  for  the  agent  to  agree  that  he 
shall  receive  no  compensation  if  his  authority  is  terminated 
before  performance,  even  though  it  be  so  terminated  at  the  mere 
whim  or  caprice  of  the  principal,  and  where  such  an  agreement 
is  fairly  made  it  will  be  enforced.* 

Where  the  agency  is  thus  at  the  will  of  the  principal,  the 
agent  cannot,  if  it  be  revoked,  recover  damages  for  this  with- 
drawal of  the  power  to  act,  or  for  the  commissions  or  compensa- 

I  See  ante,  %  209.  *  Tyler  e.  Ames,  6  Lans.  (N.  Y.) 

«  See  ante,  §  214.  280;  Spear  v.  Gardner,  16  La.  Ann. 

»  United  States  t).    Jarvis,    Davies  883;  Adriancet.  Rutherford,  57 Mich. 

(U.  S.  C.  C.)  274;  Chambers  «.  Seay,  170;    Hotchkiss    v.    Gretna    Gin.    & 

73  Ala.  372.  Compress  Co.,  36  La.  Ann.,  517. 

444: 


Chap.  lY.]  LIABILITY    OF    PKINCIPAL    TO    AGENT.  §  618. 

tion  he  might  have  earned  had  the  authority  not  been  revoked.' 
Nor  can  it  make  any  difference  that  the  principal  acted  unreason- 
ably, capriciously  or  maliciously  in  revoking  the  authority.  An 
action  cannot  be  based  upon  the  doing  of  what  one  has  a  legal 
right  to  do,  even  though  the  act  be  prompted  by  malice.' 

§  617.  Same  Subject  —  Agency  terminable  on  Contingency. 
The  same  rule  would  apply  where  the  authority  was  terminable 
by  the  principal  upon  the  happening  of  a  certain  contingency. 
Unless  the  agent  had  expressly  or  impliedly  agreed  that  in  the 
event  of  such  a  termination  he  should  have  no  compensation,  he 
would  be  entitled  to  receive  the  reasonable  value  of  the  services 
already  rendered,  and  to  be  reimbursed  for  the  expenses  and 
charges  which  he  had  fairly  and  in  good  faith  incurred  in  the 
performance  of  the  agency.  The  agent,  however,  would  not  be 
entitled  to  recover  anything  by  way  of  compensation  for  any 
damages  occasioned  by  the  revocation,  as  for  wages  or  profits 
which  he  might  have  earned  had  the  revocation  not  occurred, 
although  the  revocation  was  without  reasonable  cause.' 

§  618.  Same  Subject— Agency  terminable  only  on  Breach  of 
express  or  implied  Conditions.  But  where  the  agent  is  employed 
for  a  definite  term,  he  can  be  discharged  without  liability  only 
when  there  has  been  a  breach  of  some  express  or  implied  condi- 
tion in  the  contract  creating  the  agency.*  Where  these  conditions 
are  express,  they  usually  declare  what  shall  be  the  result  of  their 
breach,  but,  in  the  absence  of  such  a  provision,  a  breach  of  an 
express  condition  which  the  parties  have  made  sufficient  to  ter- 
minate the  agency,  would  absolve  the  principal  from  liability  for 
future  wages  and  for  damages  occasioned  by  the  revocation,  but 
would  not,  in  the  absence  of  a  stipulation  to  that  effect,  ordinarily 
deprive  the  agent  of  compensation  for  services  previously  per- 
formed, unless  terminated  for  the  agent's  gross  misconduct*  Of 
the  implied  conditions  of  the  agency,  the  most  important  are  those 

>  North  Carolina  State  L.  Ins.  Co.  Heywood  ».  Tillson,  75  Me.  225,  46 

V.  Williams,  91  N.  C.  69,  49  Am.  Rep.  Am.  Rep.  373,  and  cases  there  cited. 

637;  Jacobs  v.  Warfield,  23  La.  Ann.  »  See  preceding  section  and  author- 

395;  Kirk  v.   Hartman,  63  Penn.  St.  ities  cited. 

97;    Coffin    v.    Landis,    10    Wright.  *  See  ante,  §  210. 

(Penn.)  426.  «  See   post,  %  619.     See   also  ants, 

*  Payne  v.    Western  &c.    R.    Co.,  |  215. 
13  Lea  (Tenn.)  507,  49  Am.  Rep.  666; 

445 


§  619.  THE    LAW    OF    AGENCY.  [Book  IV. 

which  relate  to  the  honesty  and  fidelity  with   which  the  agent 
performs  his  duty.' 

S  619.  Same  Subject— When  terminated  for  Agent's  Miscon- 
duct. It  is,  as  has  been  previously  stated,"  an  implied  condition 
in  every  contract  of  agency,  that  the  agent  will  not  wilfully  dis- 
obey reasonable  and  lawful  instructions ;  that  he  will  not  willing- 
ly permit  his  principal's  interests  to  suffer ;  that  he  will  be  hon- 
est and  faithful,  and  will  exercise  reasonable  care  and  diligence 
in  the  discharge  of  his  duties  ;  and  that  he  will  not  violate  the 
principles  of  morality  or  the  laws  of  the  land.  For  a  breach  of 
this  implied  condition,  as  has  been  seen,  the  principal  may,  in  cer- 
tain cases,  lawfully  discharge  the  agent,  although  he  had  been 
employed  for  a  definite  period.  What  these  cases  are  has  already 
been  considered.'  Where,  then,  it  is  found  that  the  misconduct  of 
the  agent  was  such  as  to  justify  his  discharge,  the  question  arises : 
What  effect  has  such  discharge  upon  (a.)  future  commissions  or 
compensation,  and,  (5.)  commissions  or  compensation  previously 
earned  but  not  yet  paid  ?  Upon  the  first  branch  of  the  question 
there  can  be  no  doubt  that  a  discharge  for  cause  not  only  does 
not  render  the  principal  liable  to  the  agent  for  damages  therefor, 
but  also  absolves  him  from  all  claim  for  commissions  or  compen- 
sation which  but  for  such  discharge,  the  agent  might  have  there- 
after earned.*  But  upon  the  other  branch  of  the  question  the 
law  is  not  so  clear.  It  is  held  in  many  cases  that  where  the  agent 
is  unfaithful  to  his  trust,  and  abuses  the  confidence  reposed  in 
him,  or  misconducts  himself  in  the  management  of  the  agency, 
he  will  forfeit  his  right  to  compensation. ^  It  is  not  every  case 
of  misconduct,  however,  even  though  sufficient  to  warrant  the 
agent's  discharge,  which  will  deprive  him  of  compensation  already 
earned.  If  the  agent  were  guilty  of  such  misconduct  as  amounts 
to  treachery,  or  if  he  wholly  failed  to  recognize  the  duties  and 
responsibilities  imposed  upon  him  by  his  situation,  or  so  conducts 
himself  that  his  services  are  of  no  value,  it  is  entirely  just  and 

*  See  post,  %  619.  •  Sea  «.   Carpenter,  16  Ohio,  412; 

»  See  on^e,  §  214.  Vennum  t).  Gregory,    21    Iowa    326; 

3  See  ante,  %  214.  Cleveland  &c.  II.  R  Co.  v.  Paltison, 

<  Murdock  v.  riiillips  Academy,  12  15  lud.  70;  Porter  v.  Silvers,  35  Ind. 

Pick.    (Mass.)    244;    Du    Quoin  «fcc.  295;  Sumner  v.  Reicheniker,  9  Kan. 

Mining  Co.  v.  Thorwell,  3  111.  App.  320;  Spain  v.  Arnott,  2  Stark,  227. 
894. 

446 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL   TO    AGENT.  §  620. 

reasonable  that  he  should  receive  no  compensation  whatever,  and 
to  this  extent  the  law  is  well  settled.' 

But  if  on  the  other  hand,  though  the  agent  has  been  negligent 
or  has  not  performed  according  to  his  undertaking,  his  services 
are  still  of  some  appreciable  and  substantial  value  to  the  princi- 
pal, over  and  above  all  damages  sustained  by  him  by  reason 
of  the  default,  the  agent  should  be  entitled  to  recover  that 
value.* 

b.  Authority  Wrongfully  Revoked. 

§  620.  When  Agent  discharged  without  Cause— Breach  of 
implied  Contract.  But  where,  by  express  or  implied  contract, 
the  agency  has  been  created  to  endure  for  a  definite  period,  it 
may  not  be  terminated  by  the  principal  unless  for  the  agent's 
default  or  by  virtue  of  some  agreement  to  that  effect,  without 
liability  to  the  agent.  As  has  been  seen'  where  no  definite  time 
is  agreed  upon,  the  agency  is  ordinarily  held  to  be  one  to  con- 
tinue during  the  will  of  the  principal.  But  it  is  not  necessary 
that  there  should  be  an  express  agreement  that  the  agency  shall  not 
be  thus  terminated  without  liability  at  the  mere  will  of  the  prin- 
cipal. It  may  be  implied  as  in  other  cases,  and  such  an  implied 
understanding  is  frequently  demanded  by  the  rules  of  ordinary 
good  faith  between  parties.  It  is,  of  course,  always  within  the 
power  of  the  agent  to  protect  himself  by  an  express  agreement, 
and  in  many  cases  the  absence  of  such  an  agreement  will  put  the 
agent  at  the  mercy  of  the  principal's  will. 

Thus  the  mere  fact  that  an  agent  is  employed  to  perform  a 
certain  act  will  not,  of  itself,  amount  to  an  undertaking  on  the 
part  of  the  principal  that  the  agent  shall  be  permitted  to  com- 
plete the  act,  at  all  events,  and  the  principal  may  fairly,  and  in 
good  faith,  revoke  the  agency  without  liability,  at  any  time 
before  performance.  But  where  the  act  is  one  which  requires 
time  and  labor  for  its  completion,  and  the  agent  has,  within  a 
reasonable  time,  brouglit  the  act  to  the  very  verge  of  completion 

>  Brannan  v.  Strauss,  75  111.  234;  Carroll  v.  Welch,  26  Tex.  147;  Con- 
Myers  ij.  Walker,  31  111.  354;  Sumner  grcgation  v.  Peres,  2  Cold.  (Tenn.) 
e.  Reicheniker,  9  Kan.  320.  020;  Green    v.    Hulett,    23    Vt.  188; 

s  Massey  v.  Taylor,  5  Cold.  (Tenn.)  Eaken  v.  Harrison,  4  McCord.  (S.  C.) 

447 ;  Lawrence  «.  Gulli  f er ,  38  Me.  532 ;  249. 

Kessee  B.  Mayfield,  14  La.  Ann.  90;  3  See  an?<?,  §  210. 

447 


I  621.  TUE    LAW    OF    AGENCY.  [Book  IV. 

60  that  success  is  certain  and  immediate,  it  would  be  the  height 
of  injustice  to  permit  the  principal  then  to  withdraw  the  author- 
ity and  terminate  the  agency  and  appropriate  the  benefit  of  it, 
without  being  liable  to  the  agent  for  any  of  the  compensation 
which  he  had  so  nearly  earned.  So  where  an  agent  is  employed 
to  perform  an  act  which  involves  expenditure  of  labor  and  money 
before  it  is  possible  to  accomplish  the  desired  object,  and  after 
the  agent  has  in  good  faith  incurred  expense  and  expended  time 
and  labor,  but  before  he  has  had  a  reasonable  opportunity  to 
avail  himself  of  the  results  of  this  preliminary  effort,  it  could 
not  be  permitted  that  the  principal  should  then  terminate  the 
agency  and  take  advantage  of  the  agent's  services  without  ren- 
dering any  compensation  therefor.  Thus  if  after  a  broker,  em- 
ployed to  sell  property,  had  in  good  faith  expended  money  and 
labor  in  advertising  for  and  finding  a  purchaser,  and  was  in  the 
midst  of  negotiations  which  were  evidently  and  plainly  approach- 
ing success,  the  seller  should  revoke  the  authority  with  the  pur- 
pose of  availing  himself  of  the  broker's  efforts  and  avoiding  the 
payment  of  his  commissions,  it  could  not  be  claimed  that  the 
agent  had  no  remedy.  In  these  cases  it  might  well  be  said  that 
there  was  an  implied  contract  on  the  part  of  the  principal  to 
allow  the  agent  a  reasonable  time  for  performance,  that  full  per- 
formance was  wrongfully  prevented  by  the  principal's  own  acts, 
and  that  the  agent  had  earned  his  commission.' 

§  621.  Same  Subject— Breach  of  express  Contract— Agent's 
Hemedies.  Where,  however,  there  has  been  an  employment  for 
a  definite  period,  and  the  agent  is  discharged  without  cause  be- 
fore the  expiration  of  that  period,  or  is  not  permitted  to  under- 
take the  performance  at  all,  the  principal  is  liable  to  the  agent 
for  the  damages  occasioned  thereby,  as  in  any  other  case  of  the 
breach  of  a  contract. 

There  has  been,  and  still  is,  much  uncertainty  and  confusion 
in  the  cases  as  to  the  exact  remedies  which  the  agent,  in  such  a 
case,  may  pursue,  and  as  to  the  measure  and  nature  of  the  dam- 
ages he  may  recover,  but  it  is  believed  that  the  preponderance  of 
authority  and  reason  is  in  harmony  with  the  following  rule  : — 

An  agent  thus  wrongfully  discharged  or  prevented  from  per- 
forming his  undertaking  has  his  choice  of  three  remedies : 

•Sibbalde.  Bethlehem  Iron  Co.,  83  Wylie  o.  Marine  Nat.  Bank,  61  N. 
N.  Y.    378.    38    Am.  Rep.  441;  see      Y.  415. 

448 


Chap.  lY].  LIABILITY    OF   PEINCIPAL   TO    AGENT.  §  622. 

1.  He  may  elect  to  consider  the  contract  as  rescinded,  and  at 
once  bring  an  action  to  recover  the  value  of  the  services,  if  any, 
rendered  up  to  the  time  of  the  discharge,  less  the  amount  already 
paid  to  him  ;  or 

2.  He  may  at  once  bring  an  action  for  the  breach  of  the  con- 
tract and  may  recover  the  probable  damages  resulting  there- 
from ;  or 

3.  He  may  wait  until  the  end  of  the  term,  and  then  bring  his 
action  for  the  breach  of  the  contract  and  recover  the  actual  dam- 
ages he  has  sustained  thereby.' 

He  cannot,  however,  pursue  all  of  these  remedies,  and  a  recov- 
ery under  one  will  be  a  bar  to  a  recovery  under  the  others.* 

The  second  and  third  of  these  remedies  are  in  addition  to  his 
right  of  action  for  wages  earned  but  not  paid.' 

§  622.  Same  Subject— The  Measure  of  Damages.  By  pursu- 
ing the  first  of  these  remedies,  the  agent  elects  to  treat  the  con- 
tract as  rescinded.  He  has,  however,  rendered  valuable  services 
for  the  principal,  and  there  being  now  no  contract  to  fix  the 
price,  he  is  entitled  to  recover  their  value  upon  a  quantum 
meruit.*  In  this  recovery  he  is  not  limited  by  the  contract 
price,  not  only  because  the  contract  has  been  rescinded,  but  be- 
cause it  may  be  that  on  account  of  a  fixed  emploj^ment,  or  be- 
cause of  an  expectation  of  an  increased  compensation  at  a  later 
period  in  the  service,  he  agreed  to  render  the  services  in  question 
for  less  than  their  actual  value.     Such  a  recovery  should,   of 


«  Howard  «.  Daly,  61  N.  Y.  362,  19  James  «.  Allen  County,  44  Ohio  St. 
Am.  Rep.  285;  James  «.  Allen  226,  58  Am.  Rep.  821.  Where,  how- 
County,  44  Ohio  St.  226,58  Am.  ever,  an  agent  employed  at  a  salary  to 
Rep.  821;  Weed  «,  Burt,  78  N.  Y.  be  paid  monthly  is  wrongfully  dis- 
192;  Saxonia  «&c.  Co.  v.  Cook,  charged,  it  was  held  that  he  might 
7  Colo.  569;  Richardson  e.  Eagle  bring  an  action  for  the  month's 
Machine  Works.  78  Ind.  422,  41  Am.  salary  at  the  end  of  each  month,  and 
Rep.  584;  Goodman  v.  Pocock,  15  Ad.  that  a  recovery  for  one  month  would 
&  Ell.  (N.  S.)  576;  Elderton  v.  not  bar  a  recovery  for  a  subsequent 
Emmons,  6  Man.  G.  &  S.  (C.  B.)  160;  month.  Isaacs  v.  Davies,  68  Qa.  169. 
Smith  V.  Hayward,  7  Ad.  «&  Ell.  544;  » Richardson  v.  Eagle  Machine 
Classman  e.  Lacoste,  28  Eng.  L.  &  Works,  78  Ind.  422,  41  Am.  Rep. 584; 
Eq.  140;  Gardenhire  t.  Smith,  39  James  v.  Allen  County,  44  Ohio  St. 
Ark.  280.  226,  58  Am.  Rep.  821. 

s  Richardson  -o.  Eagle  Machine  «  Smith  on  Master  and  Servant,  96. 
Works,  78  Ind.  422,  41  Am.  Rep.  584; 

29  449 


§  622.  THE    LAW    OF   AGENCY.  [Book   IV. 

course,  be  less  the  actual  amount,  if  any,  which  has  been  already 
paid  to  him. 

The  two  other  remedies  proceed  upon  the  theory  that  the  con- 
tract still  continues  in  force,  though  broken  by  the  principal, 
and  the  recovery  had  is  for  damages  for  the  hreach,  and  not  for 
wages.  A  recovery  was  formerly  allowed  for  wages  upon  the 
ground  of  a  constructive  service,  but  the  doctrine  of  constructive 
service  is  almost  universally  repudiated  in  modern  times.'  It 
is,  however,  still  recognized  in  a  few  States.'  Under  this  theory 
it  was  incumbent  upon  the  agent  to  hold  himself  in  readiness,  at 
all  times,  to  perform  the  service,  and  having  done  so,  he  was  per- 
mitted at  the  end  of  the  term  to  recover  his  wages  as  such, 
the  same  as  if  he  had  in  fact  performed  the  service.  If  the 
wages  were  to  be  paid  in  installments,  he  might,  under  this  rule, 
sue  for  and  recover  them  as  they  became  due.^  By  holding  him- 
self in  readiness  to  perform,  but  being  wrongfully  prevented  by 
the  principal,  he  was  deemed  in  law  to  have  constructively  per- 
formed. This  doctrine  is,  however,  as  is  said  by  a  learned  judge,* 
so  opposed  to  principle,  so  clearly  hostile  to  the  great  mass  of 
the  authorities,  and  so  wholly  irreconcilable  to  that  great  and 
beneficent  rule  of  the  law  that  a  person  discharged  from  service 
must  not  remain  idle  but  must  accept  employment  elsewhere,  if 
offered,  that  it  cannot  be  sustained.  If  a  person  discharged  from 
service  may  recover  wages  or  treat  the  contract  as  still  subsist- 
ing, then  he  must  remain  idle  in  order  to  be  always  ready  to  per- 
form the  service.  He  is  placed  in  the  predicament  of  being 
called  upon  by  one  rule  of  law  to  accept  other  employment  if 
offered,  and  by  another  rule  to  remain  idle  in  order  to  recover 
full  wa^es.  The  doctrine  is  also  not  only  at  war  with  principle, 
but  with  the  rules  of  political  economy,  as  it  encourages  idleness 

»  Howard  «.  Daly,  61  N.  Y.  363,  19  B.  160;  Goodman  v.  Pocock,  15  Ad. 

Am.    Rep.    285;    James      «.     Allen  &E11.  (N.  S.)  582. 

Couuty,  44    Ohio    St.    226,   58  Am.  «  Strauss  t).  Meertief,  64  Ala.  299, 

Rep.      821;      Richardson    v.     Eagle  38  Am.  Rep.  8;  Davis®.  Ayres,  9  Ala. 

Machine  Works,  73  Ind.  423,  41  Am.  292;  Ramey   v.    Holcombe,    21    Ala. 

Rep.  584;  Archard  v.  Hornor,  3  C.  &  567;  Fowler  v.  Armour,  24  Ala.  194. 

P.  349;  s'mitli  n.    Hayward,  7  Ad.  &  ^  Strauss  v.  Meertief.  64  Ala.  299, 

Ell.  544;  A^pdin  «.  Austin,  5  Ad.  &  33  Am.   Rep.   8;   Davis  «.  Preston,  6 

Ell.  (N.  S.)  671;  Fewings  v.  Tisdal.  1  Ala.  83. 

Exch.  295;  Elderton  v.  Emmons,  6  0.  «  Dwight,  C.  in  Howard  t>.  Daly, 

61  N.  Y.  363,  19  Am.  Rep.  285. 

450 


-Chap.  lY.]  LIABILITY    OF    PEINCIPAL   TO    AGENT.  §  622. 

and  gives  compensation  to  men  who  fold  their  arms  and  decline 
service,  equal  to  those  who  perform  with  willing  hands  their 
stipulated  amount  of  labor. 

If  the  action  is  brought  at  once  upon  the  discharge,  the 
measure  of  damages  \s,  prima  facie  a  sum  equal  to  the  stipulated 
compensation.'  This  sum,  however,  the  principal  maj  reduce  if 
possible  by  showing  the  probability  of  the  agent's  being  able  to 
secure  other  employment  before  the  term  would  have  expired. 
The  burden  of  this  proof  would  be  upon  the  defendant.'  If 
this  rule  seems  harsh,  it  is  to  be  remembered  that  the  principal 
has  brought  the  action  upon  himself  by  his  own  wrongful  act, 
and  it  is  but  just  that  if  there  be  doubt  as  to  the  agent's  finding 
other  employment,  the  burden  of  it  should  fall  upon  him  who 
might  have  prevented  any  doubt  at  all  by  performing  his  agree- 
ment. The  damages  for  the  breach  of  contract  could  not  exceed 
the  stipulated  sum.*  The  agent  is  entitled  to  compensation,  but 
not  to  be  placed  in  a  better  situation  than  he  would  have  been  if 
the  principal  had  not  made  default.  Where  the  action  is  not 
brought  until  the  end  of  the  term,  the  measure  of  dam- 
ages  can  then  be  more  certainly  ascertained.  It  will  then  be 
known  how  much  the  agent  has  been  able  to  earn,*  or  by  the 
exercise  of  reasonable  diligence  might  have  earned,*  at  other 
employment,  and  to  this  extent  therefore  the  principal's  liability 
is  diminished.     The  rule  in  this  case,  as  in  the  other,  is  compen- 

'  Ricks  t).  Yates,  5  Ind.   115;  Rich-  Bench,  508;    Utter  v.    Chapman,  38 

ardsoa  ®.  Eagle  Machine  Worlis,  78  Cal.   659;  Williams  v.   Chicago  Coal 

Ind.  423,  41  Am.  Rep.  584;   Howard  Co.,  60  111.  149;  Gazette  Printing  Co. 

v.  Daly,  supra;  Callo  v.  Brouncker,  4  «.  Morss,  60  Ind.    153;  Sutherland  v. 

C.  &  P.  518;  Fawcett  v.  Cash.  5  B.  «&  Wyer,   67  Me.   64;    Railroad   Co.  v. 

Ad.   904;   Ansley  v.   Jordan,  61  Ga.  Slack,  45  Md.   161;  Williams  v.  An- 

482;  Webster  v.   Wade,  19  Cal.  291;  derson,  9  Minn.    50;  Leatherberry  v. 

Utter    V.    Chapman,    38     Cal.     659;  Odell,   7  Fed.    Rep.   641;    Squire  v. 

Gazette  Printing  Co.  t).  Morss,  60  Ind.  Wright,  1  Mo.    App.    172;    King    e. 

153;  Jaffray  e.    King,   34  Md.    217;  Steiren,    44   Penn.    St.   99;    Kirk  ». 

Railroad  Co.    v.  Slack,  45  Md.  161;  Hartman,  63  Pcnn.  St.  97;  Barker  v. 

Horn    V.    Western    Land    Assn.,  22  Knickerbocker  L.  Ins.  Co.,  24  Wis. 

Minn.  233;  Hunt  v.   Crane,  33  iliss.  630. 
569,  69  Am.  Dec.  381.  ^  Gazette  Printing  Co.  v.  Morss,  60 

«  Howard  v.  Daly,  61  N.  Y.  362,  19  Ind.  153;  Williams  v.   Chicago  Coal 

A.m.  Rep.  285;  Ricks  v.  Yates,  5  Ind.  Co., 60  111.  149;  Railroad  Co.  v.  Slack, 

115.  supra;     Congregation     v.     Peres,    3 

»  Meade  v.  Rutledge,  11  Tex.  44.  Coldw.  (Tenn.)  620. 

♦  Emmens  v.   Elderton,    13    Com. 

451 


§  623.  THB    LAW    OF    AGENCY.  [Book  lY. 

sation  to  the  agent.  Prima  facie  the  stipulated  sum  would  be 
the  measure  of  the  damages,  and  the  burden  is  upon  the  princi- 
pal to  establish  either  that  the  agent  has  obtained  other  employ- 
ment or  that  he  might  by  the  exercise  of  reasonable  diligence 
have  so  obtained  it.* 

Tliis  action  proceeds,  as  has  been  said,  for  the  breach  of  the 
contract,  and  the  right  of  action  accrues  upon  the  breach.  In 
cases,  therefore,  of  employment  for  a  long  term  of  years,  the 
ao-ent  by  deferring  his  action  until  the  end  of  the  term,  would 
incur  the  liability  of  having  the  Statute  of  Limitations  operate 
against  his  claim. 

If  the  ao-ent  is  informed  that  his  authority  is  revoked  or  that 
he  will  not  be  permitted  to  continue  its  execution,  he  is  justified 
in  accepting  this  as  conclusive.  It  is  not  necessary  that  he 
should  go  through  the  barren  form  of  offering  to  perform.  His 
readiness  may  be  shown  by  other  evidence.* 

§  623,  Same  Subject— Duty  of  Agent  to  seek  other  Employ- 
ment. It  is  the  duty  of  the  agent  wrongfully  discharged  to  ex- 
ercise reasonable  diligence  in  seeking  and  obtaining  other  employ- 
ment, and  thus  to  reduce  his  damages  as  far  as  he  is  able.* 

This  rule,  however,  does  not  impose  upon  the  agent  the  duty 
to  accept  any  other  employment  that  may  be  offered.  By  other 
employment  is  meant  employment  of  the  same  general  nature 
but  not  that  which  is  of  an  entirely  different  or  more  menial 

kind.* 

Thus  a  person  employed  as  a  bookkeeper  would  not  be  com- 
pelled to  accept  employment  as  a  farm  laborer,  nor  would  a  per- 

I  Ansley  «.   Jordan,   61  Ga.   483;  Beckham  t.  Drake,  9  M.  &  W.  79; 

Horn  n.    Western    Land    Ass'n,    22  Emmens  v.  Elderton,  13  Com.  Bench 

Minn.  233;  Howard  v.   Daly,  61  N.  508;  Utter  ».  Chapman,  38  Cal.   659; 

y.  362,  19  Am.   Rep.  285;    Leather-  Williams  v.  Chicago  Coal  Co.,  60  111. 

berry  c.  Odell,  7  Fed.  Rep.  641;  King  149;  Stone  «.  Vimont,  7  Mo.    App. 

r,  Steiren,  44  Penn.   St.  99;    Kirk  v.  277;  Chamberlin®.  Morgan,  08  Penn. 

Hartman.'eS  Penn.  St.  97;  Barker  c.  St.   168;    Shannon  ».    Comstock,   21 

Knickerbocker  Life  Ins.  Co.,  24  Wis.  Wend.  (N.  Y.)  457;  King  v.   Steiren, 

g3Q  44  Penn.  St.  99;  Armfield  v.  Nash,  81 

«  Howard  %.  Daly,  61  N.  Y.  363,  Miss.  361 ;  Ward  v.  Ames,  9  Johns. 

19  Am.  Rep.   285;   Carpenter  v.  Hoi-  (N.  Y.)  138. 

comb,  105  Mass.  284;  Wallis  «.  War-  <  Wolf  v.  Studebaker,  65  Penn.  St. 

ren  4  Exch    361;  Levy©.  Lord  Her-  459;  Costiganu  Railroad  Co.,  2  Denio 

bert.  7Taunt.  314.  (K   Y.)  609;    Sheffield    v.    Page,   1 

•Goodman  «.  Pocock,  15  Q.B.  574;  Sprague  (U.  S.  D.  C.)  285. 

452 


Chap.  lY.]  LIABILITY   OF   PRINCIPAL   TO    AGENT.  §  624. 

eon  employed  as  an  actor  or  singer  be  under  obligation  to  accept 
employment  as  a  clerk  in  a  store. 

Neither  is  the  agent  ordinarily  bound  to  seek  employment  in 
another  locality/  nor  with  an  objectionable  employer.'  The 
question  of  locality,  however,  is  one  depending  upon  the  facts 
and  circumstances  of  each  case.  What  might  reasonably  be 
deemed  the  same  locality  in  the  case  of  one  employment  might 
not  coincide  with  a  like  view  of  another  employment.  If  hav- 
ing made  a  reasonable  effort  to  find  other  employment  but  with- 
out success,  the  agent  then  does  work  for  himself  the  principal  is 
not  ordinarily  entitled  to  have  the  value  of  it  deducted  from  the 
agent's  claim.'  Were  the  agent  to  embark  in  some  regular  busi- 
ness upon  his  own  account  this  rule  might  be  different.* 

§  624.  When  Bight  of  Action  accrues.  The  right  of  action 
accrues  when  the  breach  of  contract  occurs.  Where  the  agent 
is  wrongfully  discharged  after  entering  upon  the  performance  of 
his  agency,  there  can  be  no  question,  as  has  been  seen,  that  he 
has  then  a  cause  of  action,  for  the  breach." 

Where,  however,  before  the  time  arrives  for  performance  to 
begin  and  before  the  agent  has  entered  upon  it,  the  principal  re- 
pudiates the  contract  and  informs  the  agent  that  he  will  not  per- 
mit him  to  undertake  the  performance  of  it  when  the  perform- 
ance is  due,  some  question  has  arisen  whether  such  repudiation 
may  be  treated  as  a  present  breach,  or  whether  the  agent  must 
wait  until  the  time  for  performance  arrives  and  then  tender  his 
services.  The  weight  of  authority  both  in  England  and  America, 
sustains  the  doctrine  of  a  present  breach  in  case  of  such  repu- 
diation. • 

The  theory  of  the  decisions  in  this  class  of  cases  is,  that  there 

» Harrington  v.  Gies,  45  Mich.  374;  Strauss  v.   Mertief,  64  Ala.   299,  88 

Strauss  v.   Meertief,   64  Ala.  299,  38  Am.  Rep.  8. 

Am.  Rep.  8.  ^Hariington  v.  Gies,  45  Mich.  374. 

«"Any  reasonable  objection,    be-  «  See  Perry  «>.  Simpson  Waterproof 

cause  of  capacity,  reputation,  mode  Mfg.  Co.,  37  Conn.  520. 

of  dealing  and  transacting  business,  s  See  awte,  §  621.. 

or  of  habits  or  morals,  which  could  «Dugan«.  Anderson,  36  Md.  567, 

be  made  to  the  person   from   whom  11  Am.  Rep.  509;    Howard  v.   Daly, 

employment  could  be  obtained,  would  61   N.    Y.    362,    19   Am.    Rep.    285; 

afford  a  justification  to  the  plaintiff  Ilochster  v.  De  la  Tour,  2  E.  &  B. 

for  rejecting  it  when  offered,  or  ex-  678;  Danube  &  Black  Sea  Ry  Co.  v. 

cuse  him  from  not  making  exertion  Xenos,  13  Com.  Bench  (N.  S.)  825. 

to  secure  it."    Bkickell,   C.   J.,  in  This  principle  has  been  frequently 

453 


I  G24.  THE   LAW   OF    AGENCY.  [Book  lY. 

IB  a  breach  of  the  contract  when  the  principal  repudiates  it  and 
declares  he  will  no  longer  be  bound  by  it.     The  agent  has  an 
inchoate  right  to  the  performance  of  the  bargain  which  becomes 
complete  when  the  time   for   performance  has  arrived.     In  the 
meantime,  he  has  a  right  to  have  the  contract  kept  open  as  a  sub- 
sisting and  effective  contract.     Its  unimpaired  and  unimpeached 
efficacy  may  be  essential  to  his  interests.     His  rights  acquired 
under  it  may  be  dealt  with  in  various  ways  for  his  benefit  and 
advantage.     Of  all  such  advantages  the  repudiation  of  the  con- 
tract by  the  principal,  and  the  announcement  that  it  never  will 
be  fulfilled,  must,  of  course,  deprive  him.     It  is  therefore  quite 
right  to  hold  that  such  an  announcement  amounts  to  a  violation 
of  the  contract  in  omnibus,  and  that  upon  it,  the  agent,  if  he  so 
elect,  may  at  once  treat  it  as  a  breach  of  the  entire  contract  and 
bring   his   action  accordingly.     The  contract  having  been  thus 
broken  by  the  principal,  and  treated  as  broken  by  the  agent,  per- 
formance at  the  appointed  time  becomes  excluded,  and  the  breach, 
by  reason  of  the  future  non-performance,  becomes  virtually  in- 
volved in  the  action  as  one  of  the  consequences  of  the  repudia- 
tion of   the   contract,    and    the  eventual  non-performance  may 
therefore,  by  anticipation,   be  treated  as  a  cause  of  action,  and 
damages  be  assessed  and  recovered  in  respect  of  it,  though  the 
time  for  the  performance  may  yet  be  remote.     Such  a  course,  it 
is  said,  must  lead  to  the  convenience  of  both  parties,  and  though 
decisions  ought  not  to  be  founded  upon  grounds  of  convenience 
alone,  they  yet  tend  strongly  to  support  the  view  that  such  an 
action  ought  to  be  admitted  and  upheld.     By  acting  on  such  a 
notice  of  the  intention  of  the  principal,  the  agent  may  in  n)any 
cases  avert,  or  at  all  events  materially  lessen,  the  injurious  effects 
which  would  otherwise  flow  from  the  non-fulfillment  of  the  con- 
tract ;  and  in  assessing  the  damages  for  breach  of  the  perform- 
ance, a  jury  will,  of  course,  take  into  account  whatever  the  agent 
has  done  or  has  had  the  means  of  doing,  and,  as  a  prudent  man, 

applied  in  sustaining  an  immediate  Rep.  208;  Frost  v.  Knight,    L.    R.  7 

right  of  action  for  breach  of  a  prom-  Ex.  Ill,  1  Eng.   Rep.   (Moak)  218,  6 

ise  to  marry  where  before  the  time  Albany  L.  Jour.  235. 

arrives   the  defendant  utterly  repu-  Upon  the  general  principle  of  the 

diates  it  and  declares  that  he  will  not  right  of  action  before  time  for  per- 

perform  it.     Burtis  t.  Thompson,  43  formance  arrives,  see  Daniels  ».  New- 

N.  Y.  246,  1  Am.    Rep.   516;    Hollo-  ton,  114  Mass.  530,  19  Am,  Rep.  384. 
way  V.  Griffith,  32  Iowa,  409,  7  Am. 

454: 


Chap.  lY.]  LIABILITT   OF   PRINCIPAL   TO    AGENT.  §  629. 

ought  in  reason  to  have  done,  whereby  his  loss  has  been,  or  would 
have  been,  diminished.* 

§  625.  Wo  Damages  if  Agent  acquiesces  in  Discharge.  If 
the  agent,  though  wrongfully  discharged  acquiesces  in,  and  con- 
sents to,  the  termination  of  the  agency,  no  damages  can  be 
recovered  for  it.*  But  in  order  to  effect  this  result  the  evidence 
of  acquiescence  must  be  clear.  The  mere  fact  that  the  agent 
did  not  protest,  or  that  he  peaceably  and  quietly  surrendered  his 
trust,  would  not  justify  a  claim  of  acquiescence. 

2.  Revocation  hy  Operation  of  Law. 

§  626.  No  Damages  where  Agency  revoked  by  Death  of  the 
Principal.  As  has  been  seen,  the  death  of  the  principal,  by 
operation  of  law,  revokes  the  agency.  The  agent  in  such  a  case 
is,  of  course,  entitled  to  the  compensation  earned  up  to  the  time 
of  the  death,  but  he  is  afterwards  entitled  neither  to  future  wages 
nor  to  damages  for  the  termination  of  the  agencj'.' 

§  627.  Same  Bule  where  Agency  revoked  by  Insanity  of  the 
Principal.  And  the  same  rule  would  probably  be  applied  where 
the  agency  is  revoked  by  the  after-occurring  insanity  of  the 
principal. 

§  628.  Bvile  where  Agency  revoked  by  Bankruptcy  of 
Principal.  But  the  fact  that  the  principal  becomes  bankrupt 
furnishes  no  defense  to  an  action  brought  by  an  agent,  employed 
for  a  definite  time,  to  recover  damages  for  a  refusal  or  neglect  of 
the  principal  to  employ  him  after  the  bankruptcy.* 

§  629.  Bule  where  Agency  revoked  by  Death  of  the  Agent. 
Where  the  agency  is  terminated  before  full  performance,  by  the 
death  of  the  agent,  his  representatives  are  entitled  to  recover  the 
value  of  his  services  already  rendered.  And  even  in  the  case  of 
an  entire  contract  for  the  performance  of  a  given  service,  the 
representatives  of  the  deceased  agent  may  recover  the  value  of 
the  services  rendered  less  the  damages,  if  any,  sustained  by  the 
principal  from  the  non-performance  of  the  undertaking.' 

•Miller,  J,,  in  Dugan  B.  Anderson,  < Lewis  v.  Atlas  Mutual  Life  Ins. 

36  Md.  567,  11  Am.  Rep.  509.  Co.,  61  Mo.  534;    Vauuxem  v.   Bost- 

sPatnote    v.   Sanders,    41   Vt.    66;  -wick,  —  Penn.  St.— ,  7  Atl.  Rep.  598. 

Boyle  «.  Parker,  46  Vt.  343.  s  Ricks  ®,  Yates,  5  lud.  117;   Per- 

»  Yerrington  c.  Greene,  7  R  L  589,  sons  v.  McKibben,  Id.  261;  Wolfe  c. 

84  Am.  Dec  578.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388. 

455 


§  C30.  THE   LAW    OF   AGENCY.  [Book  lY. 

§  630.  Rule  where  Agency  revoked  by  Insanity  of  the  Agent. 
Where  the  agency  is  terminated  by  the  agent's  insanity,  the 
question  of  his  rights  and  liabilities  would  be  determined  by  the 
same  principles  which  govern  in  the  case  of  his  sickness  or  other 
incapacity, — a  subject  considered  in  the  following  section. 

§  631.  How  when  Agency  terminated  by  Agent's  Sickness  or 
Incapacity.  Where  the  agency  is  terminated  by  the  sickness  or 
other  physical  disability  of  the  agent,  which  incapacitates  him 
from  completing  the  performance  of  his  undertaking,  he  will  be 
entitled  to  recover  the  reasonable  value  of  his  services 
up  to  the  time  of  his  incapacity.  And  even  though  the 
contract  be  entire  to  perform-  a  stipulated  service  for  a 
stipulated  price,  so  that,  under  other  circumstances,  full  perform- 
ance would  ordinarily  be  considered  a  condition  precedent  to  the 
right  to  recover  compensation,  yet  if  the  agent  be  disabled  by 
sickness  or  other  act  of  God  from  accomplishing  a  full  perform- 
ance, he  is  entitled  to  recover  the  reasonable  value  of  his  ser- 
vices, less  the  probable  cost  of  completing  the  undertaking.^  If, 
however,  the  sickness  was  such  that  it  could  have  been  antici- 
pated at  the  time  the  service  was  undertaken,  this  rule  would 
not  apply." 

3.  Abandonment  hy  Agent, 

§  632.  1.  When  Abandonment  lawful.  Where  the  agency  is 
created  to  endure  for  an  indefinite  period,  it  is,  as  has  been  seen, 
ordinarily  held  to  be  an  agency  at  will  merely  and  it  may  be 
lawfully  terminated  by  either  party  at  his  will  at  any  time.* 
Analogous  to  this  is  the  somewhat  common  arrangement  that 
the  relation  shall  continue  so  long  as  each  of  the  parties  or 
either  of  the  parties,  is  satisfied.  In  the  event  of  dissatisfaction, 
the  party  having  the  option  may  lawfully  terminate  the  agency 

>  Fuller*.  Brown,  11  Mete.  (Mass.)  'Jennings  v.  Lyons,  29  Wis.  553, 

440;  Ryan  v.  Dayton,  25  Conn.  188,  20  Am.  Rep.  57. 

65  Am.  Dec.   560;    Green  v.  Gilbert,  »  DeBiiar  v.  Minturn,   1   Cal.  453; 

21  Wis.  395;  Hillyard  ®.  Crabtree,  11  Franklin  Mining  Co.   v.   Harris,    24 

Tex.  264;   Fenton  v.   Clark,   11   Vt.  Mich.  115;  Palmer  u  Marquette,  &c. 

657:    Seaver  ».  Morse,  20  Vt.    620;  Co.,  32  Mich.  274;  Tatterson  e.  Suf- 

Coe    v.   Smith,   4    Ind.    79;    Wolfe  folk  Mnfg.  Co.,  106  Mass.  56;  Harper 

t>.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  «.  Hassard,  113  Mass.  187;  Peacock  c. 

888;  Lakeman  v.  Pollard.  43  Me.  463,  Cummings,  46  Penn.  St.  434. 
69  Am.  Dec.  77. 

456 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  634. 

npon  that  ground.'  In  cases  of  this  nature  there  being  no 
agreement  to  continue  the  agency  for  a  definite  time,  no  for- 
feiture can  result  from  its  termination  by  the  party  having 
the  right.  The  agent,  therefore,  would  be  entitled  to  recover 
the  stipulated  compensation  for  the  services  rendered  without 
diminution   on  the  ground  of  the  termination  of  the  agency. 

The  same  result  ensues,  also,  in  those  cases  in  which  the 
agency,  though  primarily  for  a  definite  time,  may,  by  the  terms 
of  the  contract  creating  it,  be  terminated  upon  the  happening  of 
a  given  event,  or  the  arising  of  a  certain  contingency.  If  termi- 
nated in  the  manner  and  upon  the  event  specified,  the  agent  may 
recover  full  compensation  for  the  services  rendered.* 

So  though  employed  for  a  definite  time,  if  the  conduct  of  the 
principal  is  such  as  to  justify  the  agent  in  abandoning  the  service, 
the  agent  will  be  entitled  to  recover  the  value  of  his  services.* 

§  633.  2.  When  Abandonment  wrongful.  But  where,  on 
the  other  hand,  the  agent  has  agreed  that  he  will  continue  to  act 
for  a  definite  period;  or  that  he  will  fully  perform  a  given 
undertaking ;  or  that  he  will  terminate  the  relation  only  upon 
the  happening  of  a  certain  event  or  the  arising  of  a  certain  con- 
tingency ;  or  that  he  will  not  terminate  it  in  any  case  without 
giving  a  specified  notice ;  and  he  does  terminate  it  in  violation  of 
this  agreement,  without  good  cause,  the  termination  in  the  sense 
of  which  we  have  spoken,  as  being  a  breach  of  his  contract,  must 
be  regarded  as  wrongful.*  True,  as  has  been  seen,'  he  has  the 
^ower  to  terminate  it.  The  law  will  not  compel  him  to  continue 
performance  in  accordance  with  his  agreement.  But  under  his 
contract,  his  right  to  terminate  is  suspended  and  if  he  insists 
upon  exercising  his  power,  he  must  answer  for  the  broken 
contract.* 

§  634.  Same  Subject— Entire  and  severable  Contracts— Right 
to  Compensation.     The  question  of  the  right  to  recover  coni- 

'  Spring  V.   Ansonia  Clock  Co.,  84  Atl.  Rep.  820;  Patterson  v.  Gage,  23 

Hun   (N.    Y.)    175;  Provost  «.  Har-  Vt.  558,  56  Am.  Dec.  96;  Warner  e. 

wood,  29  Vt.  219;  Rossiter  v.  Cooper,  Smith.  8  Conn.  14. 

23  Vt.  522;  Patrick  v.  Putnam,  27  Vt.  «  See  ante,  §  233. 

759.  6  See  ante,  §  233. 

2  Winship  v.  Base  Ball  Association,  «  Word   v.    Winder,    16  La,  Ann. 

78  Me.  571.  111. 

>  Bishop   V.    Ranney,  —  Vt.   —  7 

457 


R  634.  THE    LAW    OF    AGENCTT.  [Book    lY. 

pensation  for  services  rendered  in  part  performance  of  an 
undertaking  to  act  for  a  given  period,  or  to  accomplish  a  given 
object,  but  which  has  been  abandoned  by  the  agent  before  full 
performance,  is  one  of  the  most  vexatious  and  difficult  ones  in 
the  law.  It  is  certain  that  the  parties  may  expressly  agree  that 
no  compensation  shall  be  paid  unless  the  undertaking  is  per- 
formed, and  in  such  a  case  if  the  agent  abandons  the  undertak- 
ing, without  fault  of  the  principal,  before  full  performance,  he 
cannot  recover.  Full  performance  is  here  expressly  made  a 
condition  precedent  to  the  right  to  compensation.' 

But  the  most  difficult  question  arises  where  the  agreement  is 
not  thus  express  and  it  becomes  necessary  to  determine  whether 
under  all  the  facts  and  circumstances  of  a  given  case  full  per- 
formance was  intended  by  the  parties  to  be  a  condition  precedent. 
In  determining  this  question  it  is  important  to  ascertain  whether 
the  contract  is  entire  or  severable.  As  is  well  said  by  Mr.  Par- 
sons in  his  treatise  on  Contracts,*  no  precise  rules  can  be  given  by 
which  this  question  in  a  given  case  may  be  settled.  Like  most 
other  questions  of  construction  it  depends  upon  the  intention  of 
the  parties,  and  this  must  be  discovered  in  each  case  by  consider- 
ing the  language  employed  and  the  subject-matter  of  the  contract. 
If,  says  he,  the  part  to  be  performed  by  one  party  consists  of 
several  distinct  and  separate  items,  and  the  price  to  be  paid  by 
the  other  is  apportioned  to  each  item  to  be  performed  or  is  left 
to  be  implied  by  law,  such  a  contract  will  generally  be  held  to  be 
severable.  And  the  same  rule  holds  where  the  price  to  be  paid 
is  clearly  and  distinctly  apportioned  to  different  parts  of  what  ia 
to  be  performed,  although  the  latter  is  in  its  nature  single  and 
entire.  But  if  on  the  other  hand,  the  consideration  to  be  paid 
is  entire  and  single,  the  contract  must  be  held  to  be  entire, 
although  the  subject  of  the  contract  may  consist  of  several  dis- 
tinct and  wholly  independent  items.  In  accordance  with  this 
rule  a  contract  by  which  A  agrees  to  serve  B  for  an  indefinite 
time  at  a  given  sum  per  month,  would  be  held  to  be  severable.* 
So  an  agreement  by  A  to  serve  B  for  one  year  at  a  certain  sum  per 
month  to  be  paid  at  the  expiration  of  each  month,  is  so  far  sever- 
able that  A  would  have  a  right  of  action  for  the  stipulated  sum 

>  See  ante,  §  610.  •  Idem,  p.  *521, 

*  Parsons    on  Contracts,    7th    Ed. 
Vol.  2  p.  *517. 

458 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  035. 

at  the  expiration  of  each  month.'  But  a  contract  by  A  to  serve 
B  for  one  year  for  a  given  sum  is  plainly  entire.'  And  so  a 
contract  by  A  to  serve  B  for  one  year  for  a  given  sum  per  month 
is  held  to  be  entire.'  In  both  cases,  no  time  for  payment  being 
specified,  the  law  presumes  that  it  was  to  be  paid  only  when  the 
year's  service  was  performed.* 

So  a  contract  to  perform  a  given  duty  for  a  given  sum  would 
be  entire,'  but  a  contract  to  perform  the  same  duty  for  a  given 
sum  to  be  paid  in  installments  as  the  performance  progressed 
would  be  severable  so  far  as  the  right  to  recover  Ithe  several 
installments  is  concerned.* 

§  635.  Same  Subject— The  Rules  stated.  "Where  the  contract 
was  thus  found  to  be  entire,  it  was  early  established  as  the  doc- 
trine of  the  common  law  that  full  performance  of  it  was  a  con- 
dition precedent  to  the  right  to  recover  the  stipulated  compensa- 
tion.' If  the  agent  should  voluntarily  fail,  though  by  a  single 
day,  to  complete  the  designated  term,  he  could  recover  nothing 
upon  the  contract  for  all  the  services  previously  rendered,  be- 
cause the  contract  had  not  been  fully  performed  on  his  part. 
Neither  could  a  recovery  be  had  upon  the  basis  of  an  implied 

»  See  Capron«.  Strout,  llNev,  304;  10    Mete.    (Mass.)   449;    Eldridge  e. 

Thayer    v.    Wadsworth,     19    Pick.  Rowe,  supra;  Rex  v.  Birdbrooke,  4  T. 

(Mass.)  849.  R.  245;  Diefenback  ».  Stark,  56  Wis, 

2  Stark  V.  Parker,  2  Pick.  (Mass.)  462,  43  Am.  Rep.  719 ;  Jennings  v. 
267,  13  Am.  Dec.  425.  In  this  case  Lyons,  39  Wis.  553,  20  Am.  Rep.  57. 
the  party  agreed  to  work  for  one  A  contract  with  a  teacher  to  teach 
year  for  $120.  Eldridge  v.  Rowe,  2  ten  months  at  a  given  sum  per 
Gilm.  (111.)  91,  43  Am,  Dec.  41;  Miller  month  is  entire.  Wilson  v.  Board  of 
V.  Goddard,  34  Me.  102,  56  Am.  Dec.  Education,  63  Mo.  137. 

638.     Put  see  Purcell  v.  McComber,  *  Davis     v.     Maxwell,     12    Mete. 

11  Neb.  209,  re-reported  in  aote  to  35  (Mass.)  286. 

Am.  Rep.  476.  ^  Reab  v.  Moor,   19  Johns.  (N.  Y.) 

3  Thus    a  contract    to  work  "for  337. 

eight    months  for   $104,    or    $13   a  •  Woods  v.  Russell,  5  B.  and  Aid. 

month,"  is  entire.     Reab  v.  Moor,  19  942;  Clarke  v.  Spence,  4  A,  «&  E.  448; 

Johns.  (N.  Y.)  337,     So  a  contract  to  Laidler    v.    Burlinson,  2  M.   &,  W. 

work    "seven    months    at    $12    per  602;    Cunningham    «.     Moirell,     10 

month,"  was  held  to  be  an  entire  con-  Johns.  (N.  Y.)  203,  6  Am.  Dec.  332. 

tract  to  pay  $84,  at  the  end  of  the  t  Spain    v.    Arnott,    2   Stark.    256; 

seven  months  and  not  a  contract  to  Cutter  t;.  Powell.  6  T.  R.  320;  Ellis 

pay  $12,  at  the  end  of  each  month.  «,  Hamlen,  3  Taunt,  51;    Sinclair  c, 

Davis  V.   Maxwell,   12  Mete.  (Mass.)  Bowles,  9  B,  «&  C.  92;  Waddington 

286.     See  also  Nichols  v.  Coolahan,  t.  Oliver,  2  B.  &  P.  (N.  R.)  61. 

459 


§63; 


THE    LAW    OF    AGENCY. 


[Book  ly. 


contract  to  pay  for  the  services  actually  rendered,  because  the 
existence  of  the  express  contract  left  no  room  for  an  implied 
one.  Expressum  facit  cessare  taciturn  was  the  maxim  applied.* 
And  this  rule  has  been  adopted  and  still  prevails  in  the  majority 
of  the  American  States.' 

In  declaring  this  rule  in  a  leading  case  '  it  is  said  by  the  learned 
judge:  "Courts  of  justice  are  eminently  characterized  by  their 
obligation  and  office  to  enforce  the  performance  of  contracts,  and 
to  withhold  aid  and  countenance  from  those  who  seek,  through 
their  instrumentality,  impunity  or  excuse  for  the  violation  of 
them.  And  it  is  no  less  repugnant  to  the  well  established  rules 
of  civil  jurisprudence,  than  to  the  dictates  of  moral  sense,  that 
a  party,  who  deliberately  and  understandingly  enters  into  an 
engagement  and  voluntarily  breaks  it,  should  be  permitted  to 
make  that  very  engagement  the  foundation  of  a  claim  to  com- 
pensation for  services  under  it.  The  true  ground  of  legal  de- 
mand in  all  cases  of  contracts  between  parties  is  that  the  party 
claiming  has  done  all  which  on  his  part  was  to  be  performed  by 
the  terms  of  the  contract  to  entitle  him  to  enforce  the  obligation 


« Stark  «.  Parker,  2  Pick.  (Mass.) 
267,  13  Am.  Dec.  425. 

'Lantry  v.  Parks,  8  Cow.  (K  Y.) 
63;  Smith  v.  Brady,  17  N.  Y.  173,  72 
Am.  Dec.  442;  Olmstead  «.  Beale,  19 
Pick  (Mass.)  538;  Thayer  v.  Wads- 
worth,  Id.  349;  Davis  v.  Maxwell,  12 
Mete.  (Mass.)  290;  Stark  ■«.  Parker,  2 
Pick.  (IVIass.)  267,  13  Am.  Dec.  425; 
Benson  v.  Hampton,  32  Mo.  408; 
Posey  V.  Garth,  7  Mo.  96,  37  Am. 
Dec.  183;  Caldwell  «.  Dickson,  17 
Mo.  575;  Schnerr  v.  Lemp,  19  Mo. 
40;  Brown  v.  Fitch,  33  N.  J.  L.  418; 
Bragg  V.  Bradford,  33  Vt.  35;  Patnote 
».  Sanders,  41  Vt.  66;  Ripley  v.  Chip- 
man,  13  Vt.  268;  Martin  v.  Schoen- 
berger,  8  W.  &  S.  (Penn.)  367;  Alex- 
ander tJ.  Hoffman,  5  Id.  382;  Dunn  v. 
Moore.  16  111.  151 ;  Eldridge  v.  Rowe, 
2  Gilm.  (111.)  91,  43  Am.  Dec.  41; 
Mack  V.  Bragg,  30  Vt.  571;  Clark  v. 
School  District,  29  Vt.  217;  De  Camp 
e.  Stevens,  4  Blackf.  (Ind.)  24;  Hutch- 
inson V.  Wetmore,  2  Cal.  310,  56  Am. 


Dec.  337;  Hogan  v.  Titlow,  14  Cal. 
73;  Miller  v.  Goddard,  34  Me.  102,  56 
Am.  Dec  638;  Green  v.  Gilbert,  21 
Wis.  395;  Evans  v.  Bennett,  7  Wis. 
404;  Henderson®.  Stiles,  14  Ga.  135; 
Cody».  Raynaud,  1  Col.  272;  Giv- 
han  V.  Dailey,  4  Ala.  336;  Whitley  v. 
Murray,  34  Ala.  155;  Aberoathy  o. 
Black,  3  Cold.  (Tenn.)  314;  Larkin  v. 
Buck,  11  Ohio  St.  561;  Halloway  ». 
Lacy,  4  Humph.  (Tenn.)  468;  Clark 
V.  Gilbert,  26  N.  Y.  279;  Holmes  v. 
Stummel,  24  111.  370;  Jewell  v. 
Thompson,  2  Litt.  (Ky.)  52;  Morford 
«.  Ambrose,  3  J.  J.  Marsh.  (Ky.)  688; 
Preston  v.  American  Linen  Co.,  119 
Mass.  400;  Byrd  v.  Boyd,  4  McCord. 
(S.  C.)246;  Cox  v.  Adams,  1  N.  «& 
McC.  (S.  C.)  284;  Steamboat  Co.  v. 
Wilkins,  8  Vt.  54;  Sherman  v.  Trans- 
portation Co.,  31  Vt.  162;  Dover  v. 
Plemraons,  10  Ired.  (N.  C.)  L.  23; 
Angle  V.  Hanna.  22  111.  429. 

s Lincoln,  J.,  in  Stark  v.  Parker,  3 
Pick.  (Mass.)  267,  13  Am.  Dec.  425. 


460 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  635. 

of  the  other  party.  ♦  *  ♦  It  will  be  found  that  a  distinction 
has  been  uniformly  recognized  in  the  construction  of  contracts 
between  those  in  which  the  obligation  of  the  parties  is  reciprocal 
and  independent,  and  those  where  the  duty  of  the  one  may  be 
considered  as  a  condition  precedent  to  that  of  the  other.  In  the 
latter  cases  it  is  held  that  the  performance  of  the  precedent 
obligation  can  alone  entitle  the  party  bound  to  it  to  his  action. 
*  *  *  Nothing  can  be  more  unreasonable  than  that  a  man 
who  deliberately  and  wantonly  violates  an  engagement  should  be 
permitted  to  seek,  in  a  court  of  justice,  an  indemnity  from  the 
consequences  of  his  voluntary  act,  and  we  are  satisfied  that  the 
law  will  not  allow  it.  *  *  *  The  agreement  of  the  defend- 
ant was  as  entire  on  his  part  to  pa}'-,  as  that  of  the  plaintiff  to 
serve.  The  latter  was  to  serve  one  year,  the  former  to  pay  one 
hundred  and  twenty  dollars.  *  *  *  The  performance  of  a 
year's  service  was  in  this  case  a  condition  precedent  to  the  obli- 
gation of  payment.  The  plaintiff  must  perform  the  condition 
before  he  is  entitled  to  recover  anything  under  the  contract;  and 
he  has  no  right  to  renounce  his  agreement  and  recover  upon  a 
quantum  meruit.^  *  *  *  The  law,  indeed,  is  most  reasonable 
in  itself.  It  denies  only  to  a  party  an  advantage  from  his  own 
wrong.  It  requires  him  to  act  justly,  by  a  faithful  performance 
of  his  own  engagements,  before  he  exacts  the  fulfillment  of  de- 
pendent obligations  on  the  part  of  others.  It  will  not  admit  of 
the  monstrous  absurdity  that  a  man  may  voluntarily  and  without 
cause  violate  his  agreement,  and  make  the  very  breach  of  that 
agreement  the  foundation  of  an  action  which  he  could  not  main- 
tain under  it.  An  apprehension  that  this  rule  may  be  abused  to 
the  purposes  of  oppression  by  holding  out  an  inducement  to  the 
employer,  by  unkind  treatment,  near  the  close  of  a  term  of  ser- 
vice, to  drive  the  laborer  from  his  engagement  to  the  sacrifice  of 
his  wages,  is  wholly  groundless.  It  is  only  in  cases  where  the 
desertion  is  voluntary  and  without  cause  on  the  part  of  the 
laborer,  or  fault  or  consent  on  the  part  of  the  employer,  that  the 
principle  applies.  Wherever  there  is  a  reasonable  excuse,  the 
law  allows  a  recovery.     To  say  that  this  is  not  a  sufficient  pro- 

>  Citing  McMillan  «.  Vanderlip,  12  837;  Waddington  v.  Oliver,  2  B.  &  P. 

Johns.  (N.  Y.)  165,  7  Am.  Dec.  299;  (N.  R.)  61;  Ellis  v.  Hamlen  3  Taunt. 

Jennings  v.  Camp,  13  Id.  94,  7  Am.  51. 
Dec.  367;  and  Reab  v.   Moor,  19  Id. 

461 


§  CoG.  THE    LAW    OF    AGENCY.  [Boolv  IV. 

tection,  that  an  excuse  may  in  fact  exist  in  countless  secret  and 
indescribable  circumstances,  which  from  their  very  nature  are 
not  susceptible  of  proof,  or  which,  if  proved,  the  law  does  not 
recognize  as  adequate,  is  to  require  no  less  than  that  the  law 
should  presume  what  can  never  be  legally  established,  or  should 
admit  that  as  competent  which  by  positive  rules  is  held  to  be 
wholly  immaterial." 

§  636.  Same  Subject— The  more  liberal  Rule— Britten  v.  Turner. 
This  rule,  however,  while  perhaps  strictly  and  severely  just,  as  a 
principle  of  retributive  justice  has  not  met  with  universal  ap- 
proval, and  a  strong  tendency  has  been  manifested  in  many  cases 
to  mitigate  its  severity  by  the  application  of  a  more  liberal  and 
equitable  principle,  and  to  allow  the  agent,  though  in  default,  to 
recover  the  actual  value  of  his  services  to  the  principal. 

The  principles  adopted  in  such  cases  are  so  clearly  enunciated 
in  the  justly  celebrated  case  of  Britton  v.  Turner,^  as  to  justify, 
perhaps,  a  somewhat  liberal  extract  from  it,  particularly  inasmuch 
as  the  contract  and  breach  were  there  exactly  the  same  as  in  the 
leading  case  of  Stark  v.  Parker  to  which  reference  has  just  been 
made,  and  where  an  opposite  conclusion  was  reached.  "It  may 
be  assumed,"  said  Parker,  J.,  "  that  the  labor  performed  by  the 
plaintiff,  and  for  which  he  seeks  to  recover  a  compensation  in  this 
action,  was  commenced  under  a  special  contract  to  labor  for  the 
defendant  the  term  of  one  year  for  the  sum  of  one  hundred  and 
twenty  dollars,  and  that  the  plaintiff  has  labored  but  a  portion  of 
that  time,  and  has  voluntarily  failed  to  complete  the  entire  con- 
tract. It  is  clear,  then,  that  he  is  not  entitled  to  recover  upon 
contract  itself,  because  the  service,  which  was  to  entitle  him  to 
the  sum  agreed  upon,  has  never  been  performed.  But  the  ques- 
tion arises,  can  the  plaintiff,  under  these  circumstances,  recover  a 
reasonable  sum  for  the  service  he  has  actually  performed  under 
the  count  in  quantuTn  ineruit  ? 

Upon  this,  and  questions  of  a  similar  nature,  the  decisions  to  be 
found  in  the  books  are  not  easily  reconciled. 

It  has  been  held,  upon  contracts  of  this  kind  for  labor  to  be 
performed  at  a  specified  price,  that  the  party  who  voluntarily  fails 
to  fulfill  the  contract,  by  performing  the  whole  labor  contracted 
for,  is  not  entitled  to  recover  anything  for  the  labor  actually  per- 

» 6  New  Hampshire,  481,  26  Am.  Dec.  713. 
462 


Chap.  IV.]  LIABILITY   OF   PRINCIPAL   TO    AGENT.  §  636. 

formed,  however  much  he  may  have  done  towards  the  perform- 
ance, and  this  has  been  considered  the  settled  rule  of  law  upon 
the  subject.' 

That  such  rule  in  its  operation  may  be  very  unequal,  not  to  say 
unjust,  is  apparent.  A  party  who  contracts  to  perform  certain 
specified  labor,  and  who  breaks  his  contract  in  the  first  instance, 
without  any  attempt  to  perform  it,  can  only  be  made  liable  to 
pay  the  damages  which  the  other  party  has  sustained  by  reason 
of  such  non-performance,  which  in  many  instances  may  be  tri- 
fling ; — whereas  a  party  who,  in  good  faith,  has  entered  upon  the 
performance  of  his  contract  and  nearly  completed  it  and  then 
abandoned  the  further  performance — although  the  other  party 
has  had  the  full  benefit  of  all  that  has  been  done,  and  has,  per- 
haps, sustained  no  actual  damage, — is  in  fact  subjected  to  a  loss 
of  all  which  has  been  performed,  in  the  nature  of  damages  for  the 
non-fulfillment  of  the  remainder,  upon  the  technical  rule  that  the 
contract  mnst  be  fully  performed  in  order  to  a  recovery  of  any 
part  of  the  compensation.  By  the  operation  of  this  rule,  then, 
the  party  who  attempts  performance  may  be  placed  in  a  much 
worse  situation  than  he  who  wholly  disregards  his  contract,  and 
the  other  party  may  receive  much  more,  by  the  breach  of  the 
contract  than  the  injury  which  he  has  sustained  by  such  breach, 
and  more  than  he  could  be  entitled  to  were  he  seeking  to  recover 
damages  by  an  action. 

The  case  before  us  presents  an  illustration.  Had  the  plaintiS 
in  this  case  never  entered  upon  the  performance  of  his  contract, 
the  damage  could  not  probably  have  been  greater  than  some  small 
expense  and  trouble  incurred  in  procuring  another  to  do  the  labor, 
which  he  had  contracted  to  perform.  But  having  entered  upon 
the  performance,  and  labored  nine  and  a  half  months,  the  value 
of  which  labor  to  the  defendant,  as  found  by  the  jury,  is  ninety- 
five  dollars,  if  the  defendant  can  succeed  in  this  defense,  he  in 
fact  receives  nearly  five-sixths  of  the  value  of  a  whole  year's 
labor,  by  reason  of  the  breach  of  contract  by  the  plaintiff, — a 
Bum  not  only  utterly  disproportionate  to  any  probable,  not  to  say 

»  Citing  Stark  v,   Parker,   2  Pick.  13  Johns.  (N.  Y.)  94,  7  Am.  Dec.  367; 

(Mass.)  267,  13  Am.  Dec.  425;   Faxon  Reab.  v.  Moor,  19  Johns.  (N.  Y.)337; 

e.  Mansfield,  2  Mass.  147;  McMillan  Lautry  v.  Parks,  8  Cow.  (N.  Y.)  63; 

V.  Vanderlip,    12  Johns.  (N.  Y.)  16"),  Sinclair  v.  Bowles,  9  Barn.  &  Cress. 

7  Am.  Dec.  299;  Jennings  v.    Camp,  92;  Spain  v.  Arnott,  2  Stark  256. 

4G3 


ft  636.  THE   LAW   OF    AGENCY.  [Book    TV. 

possible,  damages,  which  could  have  resulted  from  the  neglect  of 
the  plaintiff  to  continue  the  remaining  two  and  a  half  months, 
but  altogether  beyond  any  damage  which  could  have  been  recov- 
ered by  the  defendant  had  the  plaintiff  done  nothing  towards  the 
fulfillment  of  his  contract.     *     *     * 

It  is  said  that  where  a  party  contracts  to  perform  certain  work 
and  to  furnish  materials,  as  for  instance,  to  build  a  house,  and  the 
work  is  done,  but  with  some  variations  from  the  mode  prescribed 
by  the  contract,  yet  if  the  other  party  has  the  benefit  of  the  labor 
and  materials,  he  should  be  bound  to  pay  so  much  as  they  are 
reasonably  worth.'  *  *  *  It  is,  in  truth  virtually  conceded 
in  such  cases  that  the  work  has  not  been  done,  for  if  it  had  been, 
the  party  performing  it  would  be  entitled  to  recover  upon  the 
contract  itself,  which,  it  is  held,  he  cannot  do. 

Those  cases  are  not  to  be  distinguished,  in  principle,  from  the 
present,  unless  it  be  in  the  circumstance  that  where  the  party 
has  contracted  to  furnish  materials  and  do  certain  labor,  as  to 
build  a  house  in  a  specified  manner,  if  it  is  not  done  according  to 
the  contract,  the  party  for  whom  it  is  built  may  refuse  to  receive 
it— elect  to  take  no  benefit  from  what  has  been  performed ;  and 
therefore  if  he  does  receive,  he  shall  be  bound  to  pay  the  value ; 
whereas,  in  a  contract  for  labor  merely,  from  day  to  day,  the 
party  is  continually  receiving  the  benefit  of  the  contract  under  an 
expectation  that  it  will  be  fulfilled,  and  can  not,  upon  the  breach 
of  it,  have  an  election  to  refuse  to  receive  what  has  been  done 
and  thus  discharge  himself  from  payment. 

But  we  think  this  difference  in  the  nature  of  the  contracts  does 
not  justify  the  application  of  a  different  rule  in  relation  to  them. 
The  party  who  contracts  for  labor  merely,  for  a  certain  period, 
does  so  with  full  knowledge  that  he  must,  from  the  nature  of 
the  case,  be  accepting  part  performance  from  day  to  day,  if  the 
other  party  commences  the  performance,  and  with  knowledge  also 
that  the  other  may  eventually  fail  of  completing  the  entire  term. 

If  under  such  circumstances,  he  actually  receives  a  benefit 
from  the  labor  performed,  over  and  above  the  damage  occasioned 

» Citinc- 2  Stark.  Ev.  97,  98;  Hay-  564;  Hayden  c.    Madison,   7  Greenl. 

ward  V.  Leonard.  7  Pick.  (Mass.)  181,  (Me.)  78;  Bull.  N.  P.   139;  4  Bos.  & 

19  Am.    Dec.    268;     Smith    c.    First  Pul.  355;  10  Johns.  (N.  Y.)  36;  13  Id. 

Cong.  M.   H.,   8  Pick.   (Mass.)  178;  97;  7  East.  479. 
Jewell  V.  Schroeppel.  4  Cow.  (N.  Y.) 

4G4 


Chap.  IV.]  LIABILITY    OF   PRINCIPAL    TO    AGENT.  §  636. 

by  the  failure  to  complete,  there  is  as  much  reason  why  he  should 
pay  the  reasonable  worth  of  what  has  thus  been  done  for  his  bene- 
fit, as  there  is  when  he  enters  and  occupies  the  house  which  has 
been  built  for  him,  but  not  according  to  the  stipulations  of  the 
contract,  and  which  he,  perhaps,  enters,  not  because  he  is  satisfied 
with  what  has  been  done,  but  because  circumstances  compel  him 
to  accept  it  such  as  it  is,  that  he  should  pay  for  the  value  of  the 
house.     *     *     * 

In  neither  case  has  the  contract  been  performed.  In  neither, 
can  an  action  be  sustained  on  the  original  contract.  In  both,  the 
party  has  assented  to  receive  what  is  done.  The  only  difference 
is,  that  in  the  one  case  the  assent  is  prior,  with  a  knowledge  that 
all  may  not  be  performed ;  in  the  other,  it  is  subsequent,  with  a 
knowledge  that  the  whole  has  not  been  accomplished.     *     *     * 

We  hold,  then,  that  where  a  party  undertakes  to  pay  upon  a 
special  contract  for  the  performance  of  labor,  or  the  furnishing 
of  materials,  he  is  not  to  be  charged  upon  such  special  agreement 
until  the  money  is  earned  according  to  the  terms  of  it ;  and  where 
the  parties  have  made  an  express  contract,  the  law  will  not  imply 
and  raise  a  contract  different  from  that  Avhich  the  parties  have 
entered  into,  except  upon  some  farther  transaction  between  the 
parties. 

In  case  of  a  failure  to  perform  such  special  contract  by  the  de- 
fault of  the  party  contracting  to  do  the  service,  if  the  money  is 
not  due  by  the  terms  of  the  special  agreement,  he  is  not  entitled 
to  recover  for  his  labor,  or  for  the  materials  furnished,  unless  the 
other  party  receives  what  has  been  done  or  furnished,  and  upon 
the  whole  case  derives  a  benefit  from  it.* 

But  if,  where  a  contract  is  made  of  such  a  character,  a  party 
actually  receives  labor  or  materials  and  thereby  derives  a  benefit 
and  advantage,  over  and  above  the  damage  which  has  resulted 
from  the  breach  of  the  contract  by  the  other  party,  the  labor  ac- 
tually done,  and  the  value  received  furnish  a  new  consideration, 
and  the  law  thereupon  raises  a  promise  to  pay  to  the  extent  of  the 
reasonable  worth  of  such  excess.  This  may  be  considered  as  mak- 
ing a  new  case,  one  not  within  the  original  agreement,  and  the 
party  is  entitled  to  '  recover  on  his  new  case  for  the  work  done, 
not  as  agreed,  but  yet  accepted  by  the  defendant.'  * 

*  Citing  Taft  v.  Montague,  14  Mass.  « Citing  1  Danes  Abr.  224. 

282.  7  Am.  Dec.  215;  2  Stark.  Ev.  644. 

30  465 


§  636.  THE   LAW    OF   AGENCY.  [Book    IV. 

If  on  such  failure  to  perform  the  whole,  the  nature  of  the  con- 
tract be  such  that  the  employer  can  reject  what  has  been  done, 
and  refuse  to  receive  any  benefit  from  the  part  performance,  he 
is  entitled  so  to  do,  and  in  such  case  is  not  liable  to  be  charged, 
unless  he  has  before  assented  to  and  accepted  of  what  has  been 
done,  however  much  the  other  party  may  have  done  towards  the 
performance.  He  has,  in  such  case,  received  nothing,  and  having 
contracted  to  receive  nothing  but  the  entire  matter  contracted 
for,  he  is  not  bound  to  pay,  because  his  express  promise  was  only 
to  pay  on  receiving  the  whole,  and  having  actually  received  no- 
thing, the  law  cannot  and  ought  not  to  raise  an  implied  promise 
to  pay.  But  where  the  party  receives  value,  takes  and  uses  the 
materials,  or  has  advantage  from  the  labor,  he  is  liable  to  pay  the 
reasonable  worth  of  what  he  has  received.'  And  the  rule  is  the 
same,  whether  it  was  received  and  accepted  by  the  assent  of  the 
part}'  prior  to  the  breach,  under  a  contract  by  which,  from  its  na- 
ture, he  was  to  receive  labor  from  time  to  time  until  the  comple- 
tion of  the  whole  contract;  or  whether  it  was  received  and 
accepted  by  an  assent  subsequent  to  the  performance  of  all  which 
was  in  fact  done.  If  he  received  it  under  such  circumstances  as 
precluded  him  from  rejecting  it  afterwards,  that  does  not  alter  the 
case ;  it  has  still  been  received  by  his  assent.     *     *     * 

The  benefit  and  advantage  which  the  party  takes  by  the  labor, 
therefore,  is  the  amount  of  value  which  he  receives,  if  any,  after 
deducting  the  amount  of  damage;  and  if  he  elects  to  put  this  in 
defense  he  is  entitled  so  to  do,  and  the  implied  promise  which 
the  law  will  raise,  in  such  case,  is  to  pay  such  amount  of  the  sti- 
pulated price  for  the  whole  labor,  as  remains  after  deducting  what 
it  would  cost  to  procure  a  completion  of  the  residue  of  the  ser- 
vice, and  also  any  damage  which  has  been  sustained  by  reason  of 
the  non-fulfillment  of  the  contract.  If,  in  such  case,  it  be  found 
that  the  damages  are  equal  to,  or  greater  than,  the  amount  of  the 
labor  performed,  so  that  the  employer,  having  a  right  to  the  full 
performance  of  the  contract,  has  not,  upon  the  whole  case,  re- 
ceived a  beneficial  service,  the  plaintiS  can  not  recover. 

This  rule,  by  binding  the  employer  to  pay  the  value  of  the  ser- 
vice he  actually  receives,  and  the  laborer  to  answer  in  damages 
where  he  does  not  complete  the  entire  contract,  will  leave  no 

•  Citing  Farnsworth  v.  Garrard,  1  Camp.  38. 


Chap.  lY.]  LIABILITY   OF    PRINCIPAL    TO    AGENT.  §  637. 

temptation  to  the  former  to  drive  the  laborer  from  his  service, 
near  the  close  of  his  term,  by  ill-treatment,  in  order  to  escape 
from  payment ;  nor  to  the  latter  to  desert  his  service  before  the 
stipulated  time,  without  a  sufficient  reason  ;  and  it  will,  in  most 
instances,  settle  the  whole  controversy  in  one  action  and  prevent 
a  multiplicity  of  suits  and  cross-actions." 

§  637.  Same  Subject— Further  of  the  Rule  of  Britten  v. 
Turner.  Concisely  stated,  the  doctrine  of  this  case  may  be  said 
to  be  that  where  a  party  fails  to  comply  substantially  with  his 
agreement,  he  can  not,  unless  it  is  apportionable,  sue  or  recover 
upon  the  agreement  at  all.  But  where  anything  has  been  done 
from  which  the  other  party  has  received  substantial  benefit  and 
which  he  has  appropriated,  a  recovery  may  be  had  upon  a 
quantum  meruit^  based  upon  that  benefit.  The  basis  of  this 
recovery  is  not  the  original  contract,  but  a  new  implied  agree- 
ment deducible  from  the  delivery  and  acceptance  of  some  valu- 
able service  or  thing.  The  defaulting  plaintiif  can  in  no  case 
recover  more  than  the  contract  price,  and  he  cannot  recover  that 
if  his  work  is  not  reasonably  worth  it,  or  if,  by  paying  it,  the 
rest  of  the  work  will  cost  the  defendant  more  than  if  the  whole 
had  been  completed  under  the  contract. 

Notwithstanding  much  opposition,  this  rule  has  gradually 
worked  its  way  into  judicial  favor  and  is  now  adopted  and  en- 
forced in  Michigan,*  Iowa,'  Nebraska,'  Kansas,*  Texas,'  Indiana,* 


» Allen  t.  McKibben,  5  Mich.  449.  their  way  into  professioaal  and  judi 
2 Pixlor  «j.  Nichols,  8  Iowa  106;  Mc-  cial  favor.  It  is  bottomed  on  jus- 
Clay  t).  Hedge,  18  Id.  66;  McAfferty  tice  and  is  right  upon  principle,  how- 
<o.  Hale,  24  Id.  356;  Byerlee  v.  Men-  ever  it  may  be  upon  the  technical 
dell,  39  Id.  382;  Wolf  v.  Gerr,  43  Id.  and  more  illiberal  rules  of  the  com- 
339.  In  McClay  ».  Hedge,  Judge  mon  law  as  found  in  the  older  cases." 
Dillon  says:  "This  question  was  »  Purcell  d.  McOmber,  11  Neb.  209; 
settled  in  this  State  by  the  case  of  also  reported  in  note  to  35  Am.  Rep. 
Pixler  t).  Nichols,  8  Iowa  106,  which  476. 

distinctly   recognized   and  expressly  <  Duncan  v.    Baker,   21   Kan.    99; 

followed  Brilton  v.  Turner,  6  N.  H.  also  reported  in  note  to  31  Am.  Rep, 

481.     That  celebrated  case  has  been  at  p.  102. 

criticised,  doubted,  and  denied  to  be  ^  Carroll  c.  Welch,  26  Tex.  147. 

sound.     It  is  frequently   said  to  be  « Coe  v.  Smith,  4  Ind.  82,  58  Am. 

good  equity  but    bad    law;    yet  its  Dec.  618;  Ricks©.  Yates,  5  Ind.  115. 
principles    are    gradually     winning 

467 


§  638.  THE    LAW    OF    AGENCY.  [Book   lY. 

Missouri^  and  Mississippi.*     After  some  leaning  in  favor  of  it 
in  "Wisconsin,  it  has  there  been  finally  denied,' 

§  638.  Brief  Absences  no  Abandonment,  When.  The  ques- 
tion of  what  shall  be  deemed  to  be  an  abandonment  of  the  ser- 
vices, is  one  to  be  determined  by  the  facts  and  circumstances  of 
each  case.  There  are  undoubtedly  cases  in  which  instant  and 
constant  attention  and  care  are  required,  where  any  absence  from 
the  post  of  duty  might  occasion  serious  if  not  irreparable  loss. 
In  such  cases  a  wilful  absence  of  an  hour  might  be  deemed  to  be 
an  abandonment  or  furnish  good  cause  for  the  dismissal  of  the 
agent.  But  in  other  cases  an  absence  for  a  day  or  more  might 
result  in  no  loss  and  ought  reasonably  to  be  considered  neither 
ground  for  dismissal  nor  an  abandonment  of  the  service.*  The 
nature  of  the  employment,  the  necessities  of  the  case,  the  prob- 
ability of  loss,  the  reason  of  the  absence,  are  all  to  be  taken  into 
consideration,  and  it  is  for  the  jury  to  say,  under  all  of  the  cir- 
cumstances, whether  there  was  an  abandonment  in  fact,  or 
whether  the  principal  was  justified  in  treating  it  as  such.*  Thus 
where  the  foreman  of  a  fruit  package  factory,  employed  for  a 
year,  was  absent  upon  necessary  and  reasonable  business  for  less 
than  a  day,  his  absence  involving  no  serious  loss,  it  was  held  that 
this  was  neither  an  abandonment  of  the  service  nor  a  good 
ground  for  his  dismissal;*  so  in  another  case,  the  absence  of  a 
school  teacher  for  four  days,  it  not  appearing  that  there  was  any 
serious  loss  occasioned,  or  that  the  business  of  the  school  had 
been  impeded  a  single  hour  thereby,  was  held  to  be  not  a  suflB- 
cient  reason  for  a  discharge.'  On  the  other  hand,  the  absence 
of  a  plantation  overseer  for  a  single  day  was  held  to  be  a  suflScient 
reason  for  his  dismissal,  it  appearing  that  the  absence  was  for  the 
purpose  of  provoking  a  discharge  in  order  to  create  a  cause  of 
action.* 

»  Downey  e.  Burke,  23  Mo.  228.  Partington  v.   Wamsutta  Mills,  110 

» Robinson  T>.  Banders,  24  Miss.  391.  Mass.  467:    Heber  v.    United   States 

»Diefenback  v.  Stark,  56  Wis.  463,  Flax  Mfg.  Co.,  13  R.  I.  303;  Naylere. 

43  Am.  Rep.  719.  Fall  River  Iron  Works,  118  Mass.  317. 

*  See  cases  cited  in  following  notes.  «  Shaver  v.  Ingham,  supra. 

See  also  Wood,   Master  v.   Servant.  ">  Fillieul  «.   Armstrong,  7  Ad.  & 

Second  Ed.  p.  219.  El.  557. 

6  Shavers.  Ingham,  58  Mich.  649,  'Fordo.  Danks,  16  La.  Ann.  119. 

55  Am.  Rep.  712;  Lakeman  «.    Pol-  See  Edwards  t>.  Levy,  2  Fost.  &  Fin. 

lard,  43  Me.   468,   69  Am.  Dec.  77;  94;  Wright  v.  Gihon,  3  C.  &  P.  683. 

468 


Chap.  lY.]  LIABILITY   OF   PRINCIPAL   TO  AGENT.  §  640. 

§  639.  Coadonation  of  Abandonment.  Even  if  the  agent  has 
been  absent  without  authority,  yet  if  the  principal  subsequently 
receive  him  back  and  permit  him  to  continue  the  performance 
with  no  notice  that  a  forfeiture  has  been  incurred,  or  would  be 
insisted  upon,  a  condonation  will  be  presumed.  It  is  certainly 
equitable  and  in  accordance  with  well  establislied  principles,  to 
hold  that  where  an  employee  for  a  fixed  period,  without  any 
fault  of  the  employer,  absents  himself  for  a  short  time,  and  then 
the  employer,  with  knowledge  of  the  facts,  receives  him  back 
into  his  service  without  objection,  and  retains  him  until  the  ter- 
mination of  the  contract,  he  thereby  waives  the  right  to  declare 
the  contract  forfeited  as  to  the  services  actually  rendered.^ 

§  640.  Wiiat  will  excuse  Abandonment— Sickness— Epidemic. 
Where  sickness  or  other  physical  incapacity  which  could  not  be 
foreseen,  renders  the  temporary  or  permanent  cessation  from 
service  imperative,  the  agent  cannot  be  deemed  to  have  aban- 
doned the  service."  Such  misfortunes  are  classed  among  other 
acts  of  God  for  which  the  individual  cannot  be  held  responsible. 
So  an  agent  is  under  no  obligation  to  imperil  his  life  by  remain- 
ing at  his  post  in  the  vicinity  of  a  prevailing  epidemic  so  dan- 
gerous in  its  character  as  to  justify  a  man  of  ordinary  care  and 
prudence  in  refusing  to  remain,  nor  does  it  make  any  difference 
that  subsequent  developments  demonstrate  that  he  was  actually 
in  no  danger.  The  propriety  of  his  conduct  is  for  the  jury  to 
determine  from  the  facts  as  they  were  presented  to  him.' 

An  agent  therefore  who  is  thus  compelled  by  a  vis  major  to 
abandon  the  service,  although  undertaken  for  a  definite  time  by 

» Bast  V.   Byrne,   51   Wis.  531,  37  Dayton,  25  Conn.   188,  65  Am.  Dec. 

Am.  Rep.  841;   Ridgway  v.  Hunger-  560;  Greene  ©.  Linton,  7  Port.  (Ala.) 

ford  Market  Co.,   3  Ad.   &  EI.  171;  133,    31    Am.    Dec.    707;    Wolfe    c. 

Prentiss  v.    Ledyard,   28  Wis.    131;  Howes,  20  N.   Y.   197,  75  Am.  Dec. 

McGrath  v.  Bell,  33  N.  Y.  Super.  195.  388;  Dickey  v.  Linscott,   20  Me.  453, 

In  Bast  «j.  Byrne  the  agent  agreed  to  37  Am.  Dec.  6G;  Leopold  v.  Salkey, 

work  a  year  for  a  fixed  price.     He  89  111.  420;  Harrington  v.  Fall  River 

worked  up  to  the  end  of  the  year  but  Iron  Works,  119  Mass.  82;  Callahan 

was  absent  at  different  times,  nine  v.  Shotwell,  60  Mo.  398;   Hubbard  v. 

days  and  a  half  in  all,  but  he  was  Belden,  27  Vt.  645;  Smith  v.  Hill,  13 

held  entitled  to  full  pay.  Ark.  173;  Hunter  v.  Waldron,  7  Ala. 

« Lakeman «.  Pollard,   43  Me.  463,  753;    Moulton    v.     Trask,     9    Mete. 

69  Am.  Dec.  77;  Jennings  v.  Lyons,  (Mass.)  577. 
39  Wis.  657,  20  Am.  Rep.  57;  Ryan  v.  ^  Lakeman  v.  Pollard,  supra. 

469 


§  641.  THE   LAW   OF   AGENCY.  [Book  lY. 

an  entire  contract,  may  recover  upon  a  quantum  meruit  for  the 
value  of  the  services  actually  performed.* 

§  641.  Contracts  not  to  terminate  without  Notice— Forfeiture 
for  Breach.  It  is  not  uncommon  to  provide  that  the  agency, 
though  otherwise  at  will,  shall  not  be  terminated  by  one  or 
either  party  without  notice  to  the  other,  either  fixed  or  reason- 
able. Such  agreements  are  valid,  and,  if  violated,  will  furnish 
ground  for  an  action  for  the  damages  sustained.  They  will  not, 
however,  work  a  forfeiture  of  wages,  unless  it  is  expressly  so  stip- 
ulated.* The  law  abhors  forfeitures,  and  will  not  lightly  imply 
them. 

It  is,  therefore,  common  to  provide  that,  if  the  agent  termi- 
nates the  relation  without  giving  the  specified  notice,  he  shall 
forfeit  to  the  principal  either  all,  or  a  certain  portion,  of  the  com- 
pensation then  earned  but  unpaid.  Such  stipulations,  when 
fairly  made  and  not  unreasonable  or  oppressive  in  their  effects, 
will  be  enforced  by  the  law.*  It  would  not  be  reasonable,  how- 
ever, to  make  the  forfeiture  cover  a  very  long  period,*  or  be  out 
of  proportion  to  the  principal's  loss.' 

It  is  not  necessary  that  the  stipulation  should  take  the  form  of 
a  written  contract  between  the  parties.  If  the  agent  has  notice 
of  such  a  regulation  at  the  time  he  enters  upon  performance,  and 
accepts  the  agency  under  it ;  or  if  he  has  notice  at  any  subsequent 
time  during  the  service  and  continues  to  serve  under  it,  he  will 
be  bound.*  He  cannot  be  bound,  however,  by  a  regulation  or 
usage  of  which  he  had  no  notice,^  and  he  may  always  show  that 
as  a  matter  of  fact  he  had  none. 

§  642.  Same  Subject— What  works  a  Forfeiture.  Here,  too, 
as  in  other  cases,  a  mere  temporary  absence  will  not  work  a  for- 
feiture, nor  will  it  result  from  absence  on  account  of  sickness, 

»  Lakeman  e.  Pollard,  supra;  Ryan  Schimpf  e.  Tennessee  Mnfg  Co.  — 

r.  Dayton,  supra;  Greene  v.  Linton,  Tenn.  — ,  6  S.  W.  Rep.  131. 

supra;  Wolfe  v.  Howes,  supra.  *  Harmon    «.  Salmon   Falls    Mnfg 

2  Hunt  z).  Otis,  4  Mete.  (IVIass.)  463.  Co.,  supra;  Bradley  ».  Salmon   Falls 

»  Richardson  v.  Woehler,  26  Mich.  Mnfg  Co.,  30  N.  H.  487;  Collins  v. 

90;  Harmon  v.   Salmon   Falls  Mnfg  New  England  Iron  Co.,  115  Mass.  23; 

Co.,   85  Me.   447,   58  Am.  Dec.  718;  Pottsville  Iron  and  Steel  Co.  v.  Good, 

Walsh  V.  Walley,  L  R.  9  Q.  B.  867,  —  Penn.  St.  — ,  9  Atl.  Rep.  497. 

9  Eng.  Rep.  (Moak)  338.  ">  Steveaa  v.  Reeves,  9  Pick.  (Mass.) 

«  Richardson  v.  Woehler,  supra.  198. 

•Basye  «.   Ambrose,  28   Mo.    89; 

470 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  643, 

severe  bodily  injury,  or  other  unforeseen  emergency.  To  work  a 
forfeiture,  said  a  learned  judge,'  the  abimdonuient  of  the  employ- 
er's service  must  be  the  direct,  voluntary  act,  or  the  natural  and 
necessary  consequence  of  some  voluntary  act,  of  the  person  em- 
ployed, or  the  result  of  some  act  committed  by  him  with  a  design 
to  terminate  the  contract  or  employment,  or  render  the  further 
prosecution  impossible.  But  a  forfeiture  of  wages  is  not  incurred, 
where  the  abandonment  is  immediately  caused  by  acts  or  occur- 
rences not  foreseen  or  anticipated,  over  which  the  person  em- 
ployed had  no  control,  and  the  natural  and  necessary  consequence 
of  which  was  not  to  cause  the  termination  of  the  employment  of 
a  party  under  a  contract  for  services  or  labor. 

§  643.  Double  Agency— Agent  cannot  recover  Compensation 
from  either  Party  when  double  Agency  unknown.  As  has  been 
seen,  the  law  will  not  permit  the  agent  to  put  himself  in  such  a 
situation  that  his  own  interests  will  conflict  with  those  of  the 
principal  The  latter  is  entitled  to  the  disinterested  skill,  dili- 
gence and  zeal  of  the  agent  for  his  own  exclusive  benefit,  and 
unless  the  principal  expressly  consents  to  it,  the  agent  cannot 
divide  this  duty  and  give  a  part  to  another.  Hence  it  is  the  rule 
of  the  law  that,  unless  with  the  free  and  intelligent  consent  of 
his  principal,  given  after  full  knowledge  of  all  of  the  circum- 
stances, the  agent  cannot  in  the  same  transaction,  act  both  for 
the  principal  and  the  adverse  party." 

If,  therefore,  without  such  consent,  the  agent  undertakes  to 
also  serve  the  other  party  in  the  same  transaction,  he  commits 
such  a  breach  of  his  dut}'  to  his  own  principal,  and  so  violates 
the  rules  of  sound  policy  and  morality,  that  he  forfeits  all  right 
to  compensation  from  the    principal  who  first  employed  him.' 

•  BiGELow,    0.    J.    in    Hughes  v.  71  Pena.  St.  256;  Meyer  v.  Hanchett, 

Wamsutta  Mills.  11  Allen  (Mass.) 201.  39  Wis.  419,  S.  C.  43  Id.  246;  Lloyd 

2  See  ante,  §§  66-68.  v.  Colston,  5  Bush.  (Ky.)  587;  Walker 

3  Scribner  v.  Collar,  40  Mich.  875,  v.  Osgood,  98  Mass.  348,  93  Am.  Dec. 
29  Am.  Rep.  541;  Raisin  v.  Clark,  41  168;  Farnsworth  v.  Hemmer,  1  AUeu 
Md.  158,  20  Am.  Rep.  66;  Bell  v.  Mc-  (Ma.ss.)  494,  79  Am.  Dec.  750;  De- 
Connell,  37  Ohio  St.  39G,  41  Am.  Steiger «.  Hollington,  17  Mo.  App. 
Rep.  528;  Rice  v.  Wood,  113  Mass.  383;  Webb  v.  Paxton,  —  Minn.  — ,  33 
133,  18  Am.  Rep.  459;  Lynch  «;.  N.  W.  Rep.  749 ;  Morison  d.  Thomp- 
Fallon,  11  R.  I.  311,  23  Am.  Rep.  son,  L.  R.  9  Q.  B.  4S0,  10  Eng.  Rep. 
458:  Watkins  v.  Cousall,  1  E.  D.  (Moak)  129;  Bollman  c  Loomia,  41 
Smith    (N.    Y.)    65;    Vanderpoel   v.  Conn.  581. 

Kearns,  2  Id.  170;  Everhart  v.  Searle, 

471 


§(;i4. 


THE   LAW    OF   AGENCT.  [BoOiC  IV. 


And  for  the  same  reason,  he  cannot  recover  compensation  from 
the  Becond  employer,  who  was  ignorant  of  the  first  engagement.' 

And  if  the  second  employer  has  knowledge  of  the  first  en- 
gagement, then  both  he  and  the  agent  are  guilty  of  the  wrong 
committed  against  the  first  employer,  and  the  law  will  not 
enforce  an  executory  contract  entered  into  in  fraud  of  his  rights. 

It  is  no  answer  to  say  that  the  second  employer,  having  knowl- 
edge of  the  first  employment,  should  be  held  liable  on  his 
promise  because  he  could  not  be  defrauded  in  the  transaction. 
The  contract  itself  is  void  as  against  public  policy  and  good 
morals,  and  both  parties  thereto  being  in  pari  delicto  the  law 
will  leave  them  as  it  finds  them.  Ex  dolo  malo  non  oritur  actio 
is  the  maxim  of  the  law.  The  result  in  such  cases  is  therefore 
that  the  agent  can  recover  from  neither  party  unless  his  double 
employment  was  known  and  assented  to  by  both.* 

§  644.  Same  Subject— May  recover  when  double  Agency  was 
fully  known  and  assented  to.  There  is  some  conflict  in  the 
decisions  upon  the  question  of  the  agent's  right  to  recover  com- 
pensation from  both  parties,  even  when  the  double  employment  is 
fully  known  and  assented  to.  It  is  said,  and  with  no  little  rea- 
son, that  even  in  this  case  the  contract  is  opposed  to  public  policy 
on  account  of  the  natural  and  legitimate  tendency  of  such  em- 
ployments.* But  while  all  such  transactions  are  properly 
viewed  with  suspicion,  the  weight  of  reason  and  authority  is  in 
favor  of  their  validity  when  fairly  made.*  The  agent  may  not 
be  able  to  serve  each  of  his  principals  with  all  his  skill,  energy 
or  ability.  He  may  not  be  able  to  obtain  for  a  selling  principal 
the  highest  price  which  could  be  obtained,  nor  for  a  purchasing 

'  Bell  V.   McConnell,   87  Ohio  St.  send,  109  Mass.   500;  Rice  v.  Wood, 

396,  41  Am.  Rep.  528;  Rice «.  Wood,  113  Mass.    133,    18    Am.  Rep.    459; 

113    Mass.    133,    18  Am.   Rep.  459;  Bollman  «.    Loomis,  41    Conn.   581; 

Raisin  v.  Clark,  41   Md.  158,  20  Am.  Everhart  v.  Searle,  71  Penn.  St.  256. 

Rep.   66;  Lynch  v.  Fallon,  11  R.  I.  'See  Meyer  v.    Hanchett,  43  Wis. 

311,   23  Am.    Rep.    458;   Bollman ».  246. 

Loomis,  41  Conn.  581;  Farnsworth  ».  «  Bell  v.    McConnell,  37   Ohio  St. 

Hemmer,  1  Allen  (Mass.)  494,  79  Am.  396,  41  Am.  Rep.  528;  Adams  Mining 

Dec.  756.  Co.    v.    Senter,    26    IMich,  73;  Fitz- 

2  Bell  «.   McConnell,   87  Ohio  St.  simmons  v.  Southern  Express  Co.,  40 

396,  41  Am.  Rep.  528;  Farnsworth  v.  Ga.  330,  2  Am.  Rep.   577;  Alexander 

ITcmmer,  1  Allen  (Mass.)  494,  79  Am.  t.  University,  57  Ind.  46G;   Joslin  v. 

Dec.  756;  Walker  v.  Osgood,'98  Mass,  Cowee,  56  N.  Y.   626;  Rolling  Stock 

348,  93  Am.  Dec.  168;  Smith  v.  Town-  Co.  «.  Railroad,  34  Ohio  St.  450. 

472 


Chap.  IV.]  LIABILITY    OF   PKIKOIPAL   TO   AGENT. 


§645. 


principal  the  lowest  price  for  which  the  property  could  have 
been  purchased.  But  he  can  render  to  each  a  service  entirely 
free  from  falsehood  and  fraud;  a  fair  and  valuable  service  in 
which  his  best  judgment  and  soundest  discretion  are  fully  and 
freely  exercised.  And  such  a  service  is  all  that  either  of  his 
principals  contracted  for,  or  had  reason  to  expect.' 

§  645.  Agent  cannot  recover  Compensation  if  Agency  was 
unlawful.  The  law  will  not  lend  its  aid  to  the  enforcement  of 
an  illegal  contract.  If,  therefore,  the  undertaking  of  the  agent 
was  to  perform  some  act  which  was  forbidden  by  law,  or  which 
was  opposed  to  the  public  policy,  he  can  recover  no  compensa- 
tion for  the  act  though  it  be  fully  performed  according  to  the 
agreement.* 

Some  discussion  has  been  given  to  this  question  in  earlier 
chapters  of  this  work,  and  it  will  not  be  necessary  here  to  deter- 
mine what  the  undertakings  are  which  come  within  the  limits  of 
this  rule.* 


'  In  Adams'  Mining  Co.  v.  Senter, 
26  Mich,  at  p.  77.  Campbell,  J.  in 
speaking  of  tlie  acts  of  an  agent  act- 
ing for  each  of  two  mining  compan- 
ies,  says:  "It  is  claimed  that  upon 
the  principle  that  a  man  cannot 
contract  with  himself,  and  cannot 
occupy  positions  involving  a  conflict 
of  duties,  all  of  his  dealings  whereby 
the  property  of  one  company  was 
transferred  to,  or  used  for,  the  other, 
should  be  held  unlawful.  There  is 
no  validity  in  such  a  proposition. 
The  authority  of  agents  may,  where 
no  law  is  violated,  be  as  large  as 
their  employers  may  choose  to  make 
it.  There  are  multitudes  of  cases 
where  the  same  person  acts  under 
power  from  different  principals  in 
their  mutual  transactions.  Every 
partnership  involves  such  double 
relations.  Every  survey  of  boun- 
daries, by  a  surveyor  jointly  agreed 
upon,  would  come  within  similar 
difficulties.  It  is  only  where  the 
agent  has  personal  interests  conflict- 
ing with  those  of  his  principal, 
that  the  law  requires  peculiar,  safe- 


guards against  his  acts.  There  can 
be  no  presumption  that  the  agent  of 
the  two  parties  will  deal  unfairly 
with  either.  And  when  they  both 
deliberately  put  him  in  charge  of 
their  separate  concerns,  and  there  is 
any  likelihood  that  he  may  have  to 
deal  with  the  rights  of  both  in  the 
same  transactions, instead  of  lessening 
his  powers,  it  may  become  necessary 
to  enlarge  them  far  enough  to  dis- 
pense with  such  formalities  as  one 
man  would  use  with  another,  but 
which  could  not  be  possible  for  a 
single  person  to  go  through  alone." 

«Trist  V.  Child,  21  Wall.  U.  S. 
441;  Marshall  v.  Baltimore  &  Ohio  R. 
R.  Co.,  16  How.  (U.  S.)  314;  Clip- 
pinger,  v.  Hepbaugh,  5  W.  «fc  S. 
(Penn.)315,  40  Am.  Dec.  519;  Har- 
ris V.  Roof,  10  Barb.  (N.  Y.)  489; 
Rose  V.  Truax,  21  Id.  861;  Gray®. 
Hook.  4  N.  Y.  449;  Tool  Co.  v.  Nor- 
ris,  2  Wall.  (U.  S.)  45;  Swayze  e. 
Hull.  3  Halst.  (N.  J.)  54,  14  Am. 
Dec.  399;  Guiich  v.  Ward,  5  Halst. 
(N.  J.)  87,  18  Am.  Dec.  389. 

»  See  a7ite,  §§  18-40. 


473 


§  Q4:Q,  THE    LAW    OF    AGENCY.  [Book  IV. 

§  646.  When  Agent  can  recover  for  extra  Services.  Where 
the  ao-ent  is  emploj^ed  at  a  fixed  salary  and  the  principal  enlarges 
his  powers  or  imposes  additional  duties  upon  him,  but  without 
stipulating  for  an  increased  compensation,  the  rate  fixed  will  be 
deemed  to  be  full  compensation  for  all  the  services  rendered, 
and  no  extra  compensation  can  be  recovered  for  the  perform- 
ance of  the  added  duties.  To  warrant  such  a  recovery  there 
must  be  an  express  or  implied  promise  to  pay  for  them,'  or  a  legal 
custom  to  that  effect.' 

§  647.  Principal's  Right  of  Recoupment.  Instead  of  resorting 
to  an  independent  action  for  the  recovery  of  the  damages  he  may 
have  sustained  by  reason  of  the  agent's  failure  to  perform  his  un- 
dertaking, the  principal  may  recoup  them  in  an  action  brought 
against  him  by  the  agent  to  recover  his  compensation." 

This  defense  is  distinguishable  from  set-off  in  three  important 
particulars :  1.  The  claim  sought  to  be  taken  advantage  of  by  re- 
coupment must  be  confined  to  matters  arising  out  of,  and  con- 
nected with,  the  transaction  or  contract  upon  which  the  suit  is 
brought.  The  claims  and  demands  of  both  parties  must  spring 
out  of  the  same  contract  or  transaction,  and  not  out  of  separate 
and  different  transactions.  2.  It  is  immaterial  whether  the  dam- 
ages sought  to  be  recouped  are  liquidated  or  unliquidated,  it  be- 
ing well  settled  that  unliquidated  damages  growing  out  of  the 
same  transaction  from  which  the  plaintiff's  cause  of  action  arises, 

» Moreau  «.  Diimagene,  20  La.  Ann,  (U.    S.)  1;    United    States   v.    Fille- 

230;  City  of  Decatur  v.   "Vermillion,  brown,  7  Pet.  (U.  8.)  28. 

77  111.  315;  Marshall  v.  Parsons,  9  0.  sBlodgett  v.    Berlin  Mills  Co.,   62 

&  P.  056;  Guthrie  v.  Merrill,  4  Kan.  N.  H.  315;  Mobile.  &c.  R.  R.  Co.  t». 

187;  Eraser  u  United  States,    16  Ct.  Clanton,  59  Ala.  392,   31   Am.    Rep. 

of  CI.   507;    Carr  v.   Chartiers  Coal  15;  Brunson  ®.  Martin,  17  Ark.  270; 

Co.,  25  Penn.  St.  337;  Jordan  v.  Jor-  Lee  v.  Clements,  48  Ga.  128;  Houston 

dan,  65  Ga.   351;  Pew  v.  Gloucester  v.  Young,  7  Ind.    200;    Stoddard  9. 

Bank,  130  Mass.  391.  Treadwell.  26  Cal.  294;  Still  v.  Hall, 

As  to  effect  of  statutes  fixing  the  20  Wend.  (N.  Y.)  51;  Phelps  v.  Paris, 

number  of  hours  which  shall  consti-  39  Vt.  511;  Cilley  v.  Tenny,    31   Vt. 

tute  a  day's  work  see  Luske  v.  Hotch-  401 ;  DeWitt  v.  Cullings,  32  Wis.  298; 

kiss,  87  Conn.  219,  9  Am.  Rep.  314;  Harper  v.  Ray,  27  Miss.  622;  Dunlap 

McCarthy  iJ.  Mayer,  96  N.    Y.  1,  48  v.    Hand,    26    Id.    460;    Runyan    v. 

Am.  Rep.  601.  Nichols,  11  Johns.  (N.  Y.)  547;  Swift 

« United  States  v.  Macdaniel,  7  Pet.  v.  Harriman,  30  Vt.  607;  Marshall  9. 

Hann,  17  N.  J.  L.  425. 

474 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  G48. 

may  be  recouped.     3.  The  remedy  is  conferred  and  regulated  by 
coraraon  law  rules  and  not  by  statutory  regulations.' 

The  occasion  for  the  resort  to  recoupment  may  arise  under 
one  of  two  states  of  fact:  a.  Where  the  agent  sues  upon  the  con- 
tract itself ;  and  5.  where  he  sues  upon  a  quantum  meruit.  In 
the  first  case,  the  agent  treats  the  contract  as  being  substantially 
performed,  and  bases  his  action  upon  it.  It  therefore  becomes 
an  essential  portion  of  his  case  to  show  what  the  contract  was,  and 
that  its  performance  has  been  such  as  to  entitle  him  to  the  stip- 
ulated compensation.  In  the  second  case,  the  agent  disregards 
the  contract  and  sues  for  the  value  of  his  services  as  though  no 
special  contract  existed.  In  this  case  it  becomes  necessary  for 
the  principal  to  set  up  the  contract  and  its  breach  in  his  defense. 

§  648.  Same  Subject— What  Damages  may  be  recouped.  It  is 
indispensable  that  the  damages  sought  to  be  recouped  should  grow 
out  of  the  same  contract  or  transaction  as  that  upon  which  the 
plaintiff's  action  is  based.*  The  principal  can  not  therefore  re- 
coup damages  for  a  wrong  or  injury  done  by  the  agent  outside  of, 
and  disconnected  with,  the  scope  of  his  employment.'  But,  within 
this  limit,  whatever  damages  the  principal  may  have  sustained  by 
reason  of  the  agent's  inefficiency,  negligence,  misconduct,  or  fail- 
ure to  perform  the  express  or  implied  covenants,  agreements  or 
conditions  of  his  undertaking,  and  which  would  furnish  the  basis 
of  an  action  by  the  principal  against  the  agent,  may  be  recouped 
by  the  principal  in  the  action  brought  by  the  agent.* 

Thus  in  an  action  by  a  railway  conductor  for  his  wages,  the 
company  may  recoup  damages  resulting  to  it  from  a  collision 
caused  by  his  negligence  ;'  so  in  an  action  by  an  agent  to  recover 

•Ward  V.   Pellera,    3    Mich.    281;  Brown,  3  Heisk.  (Tenn.)  679;  Ward 

Wheat©.  Dotson,  12  Ark.   699;  Bal-  ».  Wilson,  3  Mich.    1;    Allen  t>.  Mc- 

timore  &  Ohio  R.  R  Co.  v.  Jameson,  Kibbin,  5  Mich.  449;  Hill  v.   South- 

13  W.   Va.  833,  31   Am.    Rep.    775;  wick.  9  R.  I.  299,  11  Am.  Rep.  250; 

Myers  v.  Estell,  47  Miss.  4.  Harris  v.  Gamble,  6  Ch.  Div.  748,  23 

2  Lufburrow  v.  Henderson,  30  Ga.  Eng.  Rep.  (Moak)  310. 

482;  May  berry  v.  Leech,  58  Ala.  339;  3  Nashville,  *fcc.  R.R.  Co.  ».  Chum- 

Deshai).  Robinson,  17  Ark.  288;  Hart  ley,  6  Heisk.  (Tenn.)  327. 

V.   Francis,    2    Col.    719;    Sanger  v.  *  See  cases  cited  in  preceding  seo- 

Fincher,   27  111.   846;    Waterman  e.  tion,  note  1. 

Clark,  76  111.  428;  Fessenden  v.  For-  « Mobile,  &c.  Ry.  Co.   e.   Clanton, 

est  Paper  Co.,  63  Me.  175;  Bartlett  ».  59  Ala.  892,  81  Am.  Rep.  15. 
Farrington.  120  Mass.  284;  Hulme  v. 

475 


R  tj^9.  THE   LAW    OF    AGENCY.  [Book   IV. 

his  wages,  the  principal  may  recoup  the  damages  he  has  sustained 
by  reason  of  the  seduction  of  his  daughter  by  the  agent ;  '  so 
where  a  mill  operative  left  his  employment  without  having  given 
the  previous  notice  of  his  intention  to  leave  which  the  contract 
required,  in  consequence  of  which  the  work  at  the  mill  was  hin- 
dered and  delayed,  it  was  held  that  the  damages  thereby  occasioned 
to   the  mill   owner  might  be  recouped  against  the  claim  for 

wages.' 

So  in  such  an  action,  the  principal  may  show  in  his  defense 
that  the  agent  embezzled  or  wasted  the  goods  or  money  com- 
mitted to  his  care ; '  that  the  agent  wilfully  destroyed  the  princi- 
pal's property ;  *  that  by  the  agent's  negligence  the  property  was 
lost,  destroyed  or  injured  ; "  that  the  agent  failed  to  furnish  cer- 
tain materials  which  he  had  agreed  to  furnish,  whereby  the  prin- 
cipal was  compelled  to  furnish  them  ;  •  that  the  agent  failed  to 
pay  certain  damages  which  he  had  agreed  to  pay,  by  reason  of 
which  the  principal  was  obliged  to  pay  tliem.^ 

So  the  principal  may  recoup  damages  which  he  has  incurred  to 
third  persons  by  reason  of  the  agent's  misconduct  or  neglect,  or 
his  failure  to  observe  and  perform  the  principal's  instructions.* 

8  649.  Same  Subject— Limit  of  Recovery.  Damages,  however, 
can  be  recouped  by  way  of  mitigation  only,  and  can  not  be  made 
the  basis  of  a  recovery  of  the  excess.*  And  having  once  offered 
and  used  them  in  recoupment,  the  principal  can  not  afterwards 
bring  an  action  for  the  excess."  If,  therefore,  the  principal's 
damao-es  exceed  the  plaintiff's  claim,  he  should  bring  an  independ- 
ent action  for  them  in  the  first  instance. 

I  Bixby  V.  Parsons,  49  Conn,   483,  »  Allaire  Works  v.  Guion,  supra. 

44  Am.  Rep.  246.  *  Newton  v.  Forster.  12  M.  &  W. 

«SatchweU«.  Williams,   40  Conn.  772. 

g^l  1  Barker  «.  Troy,  «fec.   R.  R.  Co., 

3  Heck   V.   Sliener.   4  Serg.   &  R.  27  Vt.  766. 

(Penn.)  249,  8  Am.  Dec.   700;    Brun-  '  Campbell  v.  Somerville,  114 Mass. 

eon  t).  Martin,  17  Ark.    270;    Allaire  834. 

Works  «.  Guion,  10  Barb.  (N.  Y.)  55.  'Ward    v.    Fellers,   8    Mich.   281; 

*  Allaire  Works  v.  Guion,  10  Barb.  Britton  t.  Turner,  6  N.    H.   481,    26 

(N  Y.)  55;  see  also  Brigbam  v.  Haw-  Am.  Dec.  713;  Fowler  v.   Payne.  52 

ley   17  111.  38;  Lee  v.    Clements,   48  Miss.  210;  Streeter ».  Streeter,  43  111. 

Ga.'  128;  Fowler  v.  Payne,  49  Miss.  156;  Holcraft  v.  Mellott,  57  Ind.  539; 

821-  Sanger  v.  Fincber,  27  111.   347;  Brunson  v.  Martin,  17  Ark.  270. 

Wilder  v.  Stanley,  49  Vt.  105.  '"  Ward  v.  Fellers,  3  Mich.  281. 

476 


Chap.  lY.]  LIABILITY    OF   PKINCIPAL   TO    AGENT.  §  652. 

The  measure  of  damages  is,  also,  substantially  the  same  as 
though  an  independent  action  were  brought  to  recover  them.' 
The  limit  of  the  recoupment  must,  therefore,  be  the  actual  damages 
which  directly  and  proximately  result  from  the  negligence,  de- 
fault or  misconduct  of  the  agent,  and  must  not  exceed  the  amount 
claimed  by  him.'  Indirect,  remote  or  speculative  damages,  ex- 
cept in  case  of  fraud  where  a  more  liberal  rule  prevails,  are  no 
more  to  be  recovered  by  recoupment  than  by  an  independent  ac- 
tion.' 

§  650.  Same  Subject— Not  cut  oflF  by  Assignment.  The  right 
of  recoupment  attaches  to  the  contract  and  goes  with  it  into 
whosesoever  hands  the  right  may  come,  to  sue  upon  it.*  The 
principal  may,  therefore,  avail  himself  of  this  defense  against  the 
assignee  of  the  agent  even  though  he  be  a  hona  fide  holder.* 

§  651.  No  Recoupment  against  an  Infant.  Where,  however, 
the  agent  is  an  infant,  no  recoupment  can  be  had  against  him,  of 
damages  arising  from  his  failure  to  perform  the  express  or  im- 
plied duties  imposed  upon  him  by  the  contract  of  agency.*  "Re- 
coupment is,  in  substance  and  effect,  a  cross-action,  and  unless  the 
party  whom  it  is  attempted  to  subject  to  it  could  be  compelled 
to  respond  for  the  damages  by  an  independent  action  against  him, 
he  cannot  be  reached  by  recoupment."  ' 

II. 

THE   agent's   RIGHT  TO   KEIMBIJRSEMENT. 

§  652.  Agent  must  be  reimbursed  for  proper  Outlays.  The 
performance  of  the  agency  is  undertaken  for  the  benefit  of  the 

»  Myers  «.  Estell,  47  Miss.  4;  Estell  Wbitmarsh  ».  Hall,  3  Denio  (N.  Y.) 

«.  Myers,  54 /d.  147.  375;  Derocher  v.    Continental   Mills, 

sSatchwell  v.  Williams,  40  Conn,  58  Me.  217;  4  Am.  Rep.  28G;  Robin 

371.  son  V.  Weeks,  56  Me.    102;    Vent  v. 

3  Blanchard  e.  Ely,  21  Wend.  (N.  Osgood,  19  Pick,   (Mass.)  575;  Gaff 

Y.)  342,  34  Am.  Dec,  250;  Finney  t.  ney  v.  Hayden,  110  Mass.  137,  14  Am 

Cadwallader,   55  Ga.   75;    Pettee    e.  Rep.  580;  Meeker  v.  Hurd,  31  Vt.  642 

Tennessee  Mfg.  Co.,  1  Sneed  (Tenn.)  Dallas  ■».  Hollingsworth,  3  Ind.  537 

381,  Meredith  v.  Crawford,   34  Ind.  399; 

<  Bixby  V.  Parsons,  49  Conn.  483,  Ray  v.  Haines,  52  111.  485. 

44  Am.  Rep.  246.  'Graves,  C,  J,,  in  Widrig  v.  Tagi 

»  Bixby  V.  Parsons,  iupra.  gart,  supra. 
'     •  Widrig  t),  Taggart,  51  Mich.  103; 

477 


§  653.  THE    LAW    OF    AGENCY.  [Book  IV. 

principal.  To  him  belong  all  the  profits  and  advantages  resulting 
from  its  execution.  He  is  also  entitled  to  all  of  the  profits  and 
advantages  acquired  bj  the  agent  during  the  course  of  the  per- 
formance. It  is  eminently  just  and  proper,  therefore,  that  the 
principal  should  bear  the  natural  and  legitimate  burdens  of  the 
transaction,  and  that  the  agent  should  not  be  called  upon  to  suf- 
fer loss  or  injury  for  his  acts  done  in  the  proper  discharge  of  his 
duties.     And  such  is  the  rule  of  law. 

The  agent  is  entitled  to  be  reimbursed  by  the  principal,  for  all 
of  his  advances,  expenses  and  disbursements,  made  in  the  course 
of  his  agency  on  account  of  or  for  the  benefit  of  his  principal, 
when  such  advances,  expenses  and  disbursements  have  been 
properly  incurred,  and  reasonably  and  in  good  faith  paid,  without 
any  default  on  the  part  of  the  agent.^ 

The  agent  cannot,  however,  claim  to  be  reimbursed  for 
expenses  or  disbursements  which  have  been  rendered  necessary 
by  his  own  neglect  to  use  reasonable  care  and  diligence,  or  which 
have  been  incurred  in  violation  of  the  express  or  implied  condi- 
tions of  the  agency,  or  in  opposition  to  the  instructions  of  his 
principal.  If  such  expenses  are  incurred,  the  agent  must  bear 
them  himself.*  The  right  to  reimbursement  extends  only  to  such 
expenses  as  are  incurred  by  the  agent  in  the  honest  management 
of  the  business,  and  without  default  on  his  part.' 

III. 

THE    agent's   eight  TO   INDEMNITT. 

§  653.  Agent  must  be  indemnified  against  Consequences  of 
lawful  Acts.  The  agent  has  tlie  right  to  assume  that  the  princi- 
pal will  not  call  upon  him  to  perform  any  duty  which  would 
render  him  liable  in  damages  to  third  persons.  Having  no  per- 
sonal interest  in  the  act,  other  than  the  performance  of  his  duty, 
the  agent  should  not  be  required  to  suffer  loss  from  the  doing  of 
an  act,  apparently  lawful  in  itself,  and  which  he  has  undertaken 
to  do  by  the  direction,  and  for  the  benefit  and  advantage  of  his 

1  Ruffner  v.  Hewitt,  7  W.  Va.  585;  v.  Butler,  69  111.  575;  Elliott  v.  Wal- 

"Warren  v.  Hewitt,  45  Ga.  501;  Mait-  ker,  1  Rawle  (Penn.)  126. 
land    V.   Martin,    86  Penn.    St.    120;  «  Godman  v.  Meixsel,  65  Ind.  32. 

Beach  v.  Branch,  57  Ga.  362;  Searing         » Maitland  B.Martin, 86  Penn. St.  120. 

478 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  G53. 

principal.  If  in  the  performance  of  such  an  act,  therefore,  the 
agent  invades  the  rights  of  third  persons  and  incurs  liability  to 
them,  the  loss  should  fall  rather  upon  him  for  whose  benefit  and 
by  whose  direction  it  was  done,  than  upon  him  whose  only  inten- 
tion was  to  do  his  duty  to  his  principal.  "Wherever,  then,  the 
agent  is  called  upon  by  his  principal  to  do  an  act  which  is  not 
manifestly  illegal,  and  which  he  does  not  know  to  be  wrong,  the 
law  implies  a  promise  on  the  part  of  the  principal  to  indemnify 
the  agent  for  such  losses  and  damages  as  flow  directly  and  imme- 
diately from  the  execution  of  the  agency.'  Thus  an  ao-ent  is 
entitled  to  be  indemnified  when  he  is  compelled  to  pay  damao-es 
for  taking  personal  property  by  direction  of  his  principal,  which, 
though  claimed  adversely  by  another,  he  had  reasonable  ground 
to  believe  to  belong  to  his  principal.'  So  where  an  agent,  actino- 
under  the  direction  of  his  principal,  cuts  timber  by  mistake 
partly  upon  the  land  of  another,  which  his  principal  receives  and 
disposes  of,  the  agent  is  entitled  to  recover  of  his  principal  what 
he  is  obliged  to  pay  as  damages  for  the  trespass.' 

So  where  a  party  is  employed  in  his  usual  course  of  business  as 
an  auctioneer  or  warehouseman  to  sell  or  deliver  goods,  by  one 
who  claims  to  have  a  right  to  do  so,  the  law  will  imply  a  prom- 
ise to  indemnify  him,  if  he  be  compelled  to  pay  damages  to 
another  who  establishes  a  superior  right  to  the  goods.*  And  so 
when  a  railroad  conductor,  who  had  acted  under  express  instruc- 
tions from  the  company,  was  charged  in  damages  to  one  whom 
he  had  ejected  from  the  train  for  not  producing  such  a  ticket  as 
he  had  been  directed,  though  unlawfully,  to  insist  upon,  it  was 
held  that  he  was  entitled  to  be  indemnified  by  the  corapanv.' 
So  where  an  agent  authorized  to  contract  for  the  use  of  a  vessel. 
of  the  principal's,  and  who  did  so  in  his  own  name,  was  com- 
pelled to  pay  damages  because  the  principal  refused  to  furnish 
the  vessel  according  to  the  agreement,  it  was  held  that  he  could 

*  Moore  v.  Appleton,  26   Ala.    633,  Avery  v.  Halsey,  14  Pick.  (Mass.)  174. 

8.  C.  34  Ala.  147,  73  Am.  Dec.  448;  »  Drummond  c.  Humphreys,  39  Me. 

Ramsay  v.  Gardner,  11  Johns.  (N.Y.)  347. 

439;  Stocking®.  Sage,  1  Conn.  523;  « Nelson  «.  Cook,  17  111.  443;  Ad- 
Greene  V.  Qoddard,  0  Mete.  (Mass.)  amson  v.  Jarvis,  4  Bing.  66,  13  Eng. 
212;  Powell  v.  Newburgh,  19  Johns.  Com.  L.  343;  Butts  v.  Gibbins,  2  Ad. 
(N.  Y.)  284.  &  E:I.  57,  29  Eng   Com.  L.  37. 

«  Moore  v.  Appleton,  26  Ala.  633,  s.  «  Howe  v.  Buffalo,  &c.  R.  R  Co., 

c.   34  Ala.   147,   73  Am.   Dec.  448;  87  N.  Y.  297. 

479 


§  G54.  THE    LAW    OF    AGEXCY.  [Book  lY. 

recover  from  the  principal.*  So  where  an  agent  who  had  pur- 
chased property  for  his  principal,  was  sued  and  arrested  for  the 
price  and  was  compelled  to  pay  it,  it  was  held  that  the  principal 
was  bound  to  reimburse  him  for  the  amount  paid  and  for  his 
costs  and  attorney's  fees.'  In  such  a  case  the  agent  need  not 
wait  to  be  sued  by  the  third  party  for  damages,  but  may  pay 
them  at  once  and  thereupon  recover  from  the  principal.'  H© 
can,  however,  recover  from  the  principal  only  the  amount  oi 
damages  actually  sustained  by  the  third  person,  though  he  may, 
in  fact,  have  paid  him  more.* 

It  is  immaterial  whether  the  agent  be  sued  alone  or  jointly 
with  the  principal.  The  right  to  indemnity  exists  in  either 
case.* 

§  654.  No  Indemnity  where  Act  is  unlawful.  The  principal 
cannot,  however,  require  the  agent  to  perform  an  unlawful  act, 
and  if  the  agent  performs  an  act  which  he  knows  to  be  such,  or 
which  he  must  be  presumed  to  have  known  was  unlawful,  he 
must  answer  for  it  like  any  other  wrong  doer,  and  like  other 
wrong  doers  he  is  entitled  neither  to  indemnity  nor  contribution.* 
And  in  such  a  case  not  only  does  the  law  not  imply  a  promise  to 
indemnify,  but  it  will  not  enforce  even  an  express  promise  to 
that  effect. 

An  express  bond,  therefore,  or  other  formal  written  agree- 
ment to  indemnify  the  agent  against  consequences  of  a  proposed 
act  known,  or  which  he  must  be  presumed  to  have  known,  to  be 
unlawful,  is  void,  as  against  the  peace  and  policy  of  the  law. 
But  this  rule  does  not  extend  to  cases  where  parties,  in  the  pros- 
ecution of  their  legal  rights,  in  good  faith,  have  committed  an 
unintentional  wrong  against  another,  but  is  limited  to  those  cases 
where  the  intention  is  to  commit  a  trespass,  and  does  not  include 
cases  where  the  parties  are  actuated  by  honest  motives  in  the 
assertion  of  what  they  believe  to  be  their  rights  under  the  law, 
although  it  should  subsequently  transpire  that  they  were  not 
justified  in  doing  the  acts  contemplated  by  them  when  the  bond 
was  executed.' 

>  SaTeland  v.  Green,  36  Wis.  612.  »  Moore  v.  Appleton,  26  Ala.  633, 

«  Clark  V.   Jones,   16  Lea  (Tenn.)  B.  c.  34  Ala.  147,  73  Am.  Dec.  448. 
351,  «  Coventry  v.  Barton,  17  Johns.  (N, 

»  Saveiand  v.  Green,   30  Wis.  612.  T.)  142,  8  Am.  Dec.  376. 
<  Saveland  v.  Green,  36  Wis.  612.  »  Coventry  b.  Barton,  «w;?ra;  Allaire 

480 


Chap.  lY.]  LIABILITY    OF   PKINCIPAL   TO    AGENT.  §  656. 

But  where  the  act,  though  unlawful,  has  already  been  commit- 
ted, a  bond  or  other  agreement  based  upon  sufficient  considera- 
tion to  indemnify  the  agent  against  the  consequences  of  it  is 
valid.' 

IV. 

THE   agent's    bight  TO   PKOTEOTION    FBOM   INJUBT. 

§  655.  In  general.  It  is  not  within  the  scope  of  this  work 
to  enter  into  a  minute  discussion  of  the  liability  of  the  employer 
for  injuries  happening  to  his  employee  in  the  course  of  his  em- 
ployment, either  through  the  negligence  of  the  employer  or  of  a 
fellow-employee.  These  questions  belong  more  appropriately  to 
treatises  on  the  subjects  of  Master  and  Servant,  Torts  and  Neg- 
ligence. A  general  statement  of  the  rules  which  govern  in  these 
•jases  is,  however,  deemed  pertinent  and  will  be  given. 

1.   From  the  Risks  incident  to  the  Business. 

§  656.  General  Rule— Principal  not  liable.  Every  undertak- 
ing for  the  rendition  of  services  is  attended  with  more  or  less  of 
risk  incident  to  the  business  itself.  Kisks  of  this  nature  are  as 
much  within  the  knowledge  and  control  of  the  agent  as  of  the 
principal,  and  are  presumably  contemplated  and  considered  by 
the  agent  when  he  accepts  the  undertaking.  They  result  from 
no  fault  or  neglect  of  the  principal,  but  arise  from  the  very 
nature  of  the  thing  to  be  done. 

It  is,  therefore,  the  rule  of  the  law  that  the  principal  is  not 

r.  Ouland,  2  Johns.  (N.  T.)  Cas.  54;  per  v.  Kemper,  8  Rand  (Va.)8;  Davi8 

Castle  V.  Noyes,  14  N.  T.  332;  Nelson  v.  Arledge,  3  Hill  (8.  Car.)  L.  170.  30 

V.  Cook,  17  111.  449;  Stanton  v.  Mc-  Am.  Dec.  860;  Atkins®.  Johnson,  43 

Mullen,   7  111.   App.  326;    Moore    D.  Vt.  78,  5  Am,   Rep.  260;  Armstrong 

Appleton,  26  Ala.  683;  Ives  «.  Jones,  «.  Clarion  Co.,  66  Penn.  St.  218;  Ar- 

3  Iredell's  (N.  Car.)  L.  538,  40  Am.  nold  v.  Clifford,  2  Sumner  (U.  S.  C. 

Dec.    421 ;    Holman    v.    Johnson,    1  C.)  238. 

Cowp.  341  ;Howe c.  Bufifalo.&c.  R.  R.  '  Hacket   v.    Tilley,  11   Mod.    93; 

i!7  N.  Y.   299;    Stone  v.   Hooker,  9  Kneeland  «.  Rogers,   2  Hall  (N.  Y. 

CJow.  (N.  Y.)  154;  Jacobs  v.  Pollard,  Sup.    Ct.)  579;  Hall  v.  Huntoon,  17 

10  Cush.    (Mass.)    288;   Shotwell  v.  Vt.  244;  Knight  r.  Nelson,  117  Mass. 

Uamblin.  23  Miss.  156;  Forniquet  e.  458;  Griffiths  v.  Hardenbergh,  41  N. 

Tegarden,  24  Miss.  96 ;  Cumpston  v.  Y.   464;  Doty  t>.   Wilson,  14  Johns. 

T.ambert,  18  Ohio,    81;  Jameison  ».  (N.  Y.)  878. 
Calhoun,  2  Speer  (S.  Car.)  19;  Kem- 

31  481 


§  657.  THE   LAW    OF    AGENCY.  [Book  lY. 

responsible  to  the  agent  for  injuries  received  in  the  execution  of 
the  undertaking  and  which  result  from  the  natural  and  ordinary 
risks  and  perils  which  are  incident  to  the  performance  of  such 
services.^ 

This  rule  has  been  founded  upon  two  reasons.  One  is  that 
above  mentioned,  that  the  agent  knowing  that  he  will  be  ex- 
posed to  incidental  risks,  must  be  supposed  to  have  contracted 
that,  as  between  himself  and  the  principal,  he  would  assume  the 
responsibility  of  the  result.'  The  other  is  that  this  rule  best 
subserves  and  promotes  the  public  interests.  If  the  agent  is  to 
take  the  risks  himself,  he  will  naturally  be  more  careful  and  pru- 
dent than  if  he  could  demand-  indemnity  from  his  principal. 
The  result  of  this  care  and  prudence  is,  not  only  that  injuries 
are  less  liable  to  occur  to  the  agent  himself,  but  that  they  are  also 
much  less  liable  to  happen  to  third  persons,  with  the  care  of 
whose  persons  or  property  the  agent  may  be  intrusted.* 

2.  From  the  Negligence  of  the  Principal. 
%  657.  Principal  responsible  for  his  own  Negligence.  But 
although  the  agent  thus  assumes  the  responsibility  of  the  risks 
which  are  incident  to  the  employment,  he  has  a  right  to  expect 
that  the  principal  will  not  add  to  or  increase  these  risks  or  create 
others  by  his  own  personal  negligence.  It  has  been  seen  that  the 
fact  of  the  agency  is  no  excuse  to  the  agent  for  injuries  resulting 
to  others  by  his  own  neglect.     IMo  man  can  relieve  himself  from 

I  Clarke?).  Holmes,  7  H.  &  N.  937;  Cent.  R.  R.  Co.,  51  Mich.  253;  Penn 

Gibson  v.  Erie  Ry  Co.,  63  N.  Y.  449,  sylvaniaR.  R.  Co.  v.  Wachter.  60 iW. 

20  Am.  Rep.  552;  Hayden  v.  Smith-  395;  Moulton  v.  Gage,  138  Mass.  390: 

ville  Mfg  Co.,  29  Conn.  548;  Farwell  Watson®.  Railway  Co.,  58  Tex.  434; 

X)    Boston  and  Worcester  R   R.,  4  Lansing  v.  N.  York  Cent.  R.  R.  Co., 

Mete.  (Mass.)  49,  38  Am.   Dec.  339;  49    N.  Y.    531,    10    Am.  Rep.   417; 

Bryant  v.  Burlington,  &c.  Ry  Co.,  66  Sweeney  v.  Berlin,  &c.  Co.,  101 N.  Y. 

Iowa,  305,  55  Am.  Rep.  275;  Sweeney  520,  54  Am.  Rep.  722. 

c.  Central  Pac.  R.  R.  Co..  57  Cal.  15;  2  Hutchinson    ».    Railway   Co..    5 

BellB.  Western,  &c.  R.  R.  Co.,  70  Ga.  Exch.  343. 

560;  Dowell  v.  Burlington,  &c.   Ry  3  Priestley   v.    Fowler,    3  Mees  & 

Co.!  62  Iowa  629;  Wonder  v.  Balti-  Wels.  1;  Illinois  Central  R.  R.  Co.  v. 

more,  &c.  R.  R.  Co.,  33  Md.  411,  3  Cox,  21   111.  20;  Lawler  v.  Andros- 

Am.  Rep.  143;  Yeaton  «.  Boston,  «&c.  coggin  R.  R.  Co.,  62  Me.  463,  10  Am. 

R  R.  Co.,  135 Mass.  418;  Fort  Wayne,  Rep.  492;  Hanrathy  v.  Northern,  &c. 

&c.   R.   R.   Co.    V.   Gildersleeve,   33  R.  R.  Co.,  46  Md.  280. 
Mich.   133;  Hathaway  v.    Michigan 

482 


Chap,  lY.]  LIABILITY    OF   PKINCIPAL   TO    AGENT.  §  658. 

the  responsibilities  which  rest  alike  upon  all  persons  by  becoming 
an  agent,  and  the  same  rule  applies  to  the  principal. 

If,  tlierefore,  injury  results  to  the  agent  from  the  personal  neg- 
ligence of  the  principal,  the  principal  is  liable  in  the  same  man- 
ner and  to  the  same  extent  as  though  the  relation  did  not  exist.' 

This  negligence  of  the  principal  may  consist  in  his  failure  to 
observe  one  or  more  of  several  duties  which  he  owes  to  the  agent, 
the  more  important  of  which  deserve  specific  mention. 

§  658.  1.  For  dangerous  Premises.  The  principal  may  incur 
liability  to  the  agent  for  injuries  received  by  the  latter  from  the 
perils  or  dangers  of  the  principal's  premises,  of  which  the  agent 
had  no  knowledge  or  notice  and  which  he  had  no  reason  to  ex- 
pect, but  of  which  the  principal  knew,  or  by  the  exercise  of  rea- 
Bonable  care  and  diligence  might  have  known.  It  is  the  general 
rule  of  the  law  that  the  owner  or  occupant  of  land  or  other 
premises  is  liable  in  damages  to  those  coming  to  it,  using  due 
care,  at  his  invitation  or  inducement,  express  or  implied,  on  any 
business  to  be  there  transacted  or  permitted  by  him,  for  an  injury 
there  occasioned  by  the  unsafe  condition  of  the  land  or  other 
premises,  or  of  the  access  to  it,  which  is  known  to  him  and  not 
to  them,  and  which  he  has  negligently  suffered  to  exist  and  of 
which  he  has  given  no  notice.'  And  this  rule  applies  for  the 
protection  of  the  agent  as  well  as  of  a  stranger.  Where  the  service 
is  to  be  performed  upon  the  principal's  premises,  it  is  the  duty  of 
the  principal  to  provide  a  suitable  place  in  which  the  agent, 
exercising  due  care,  can  perform  his  duty  without  exposure  to 
dangers  that  do  not  ordinarily  come  within  the  obvious  scope  of 
such  employments  as  usually  carried  on.^  The  agent  has  a  rea- 
eonable  right  to  expect  that  if  the  lands  and  premises  of  the 
principal,  where  it  is  his  express  or  implied  right  or  duty  to  go 
or  to  be,  in  the  performance  of  his  undertaking,  contain  dangers 
from  which  he  may  suffer  injury  and  which  exist  to  the  knowl- 
edge of  the  principal,  but  of  which  he  is  ignorant,  he  will  receive 

1  Chicago  &  N.  W.  Ry  Co.  v.  Bay-  Am.  Rep.  120;  Corby  v.  Hill,  4  C.  B. 
field,  37  Mich.  205;  Quincy  Mining  (N.  S.)  556;  Sweeny  v.  Old  Colony, 
Co.  V.  Kitts,  42  Mich.  34;  Johnson  v.  &c.  R,  R.  Co.,  10  Allen  (Mass.)  368, 
Boston  Tow  Boat  Co.,  135  Mass.  215,  87  Am.  Dec.  644. 

46  Am.  Rep.  458.  '  Coombs  v.  New  Bedford  Cordage 

2  Carlelon  v.  Iron  Co.,  99 Mass.  216;  Co.,  102  Mass.  572,  3  Am.  Rep.  506; 
Pierce  v.  Whitcomb,  48  Vt.  127,  21      Swoboda  v.  Ward,  40  Mich.  420. 

483 


§  (359.  THE   LAW    OF   AGENCY.  [Book  lY. 

notice  of  them  so  as  to  be  upon  his  guard.^  This  duty  of  warn- 
ing would  be  increased  if  the  agent  were,  to  the  knowledge  of 
the  principal,  so  ignorant  or  inexperienced  as  to  be  less  likely  to 
anticipate  dangers  from  the  employment  than  a  person  of  greater 
knowledge  or  experience.' 

But  this  rule  does  not  apply  to  dangers  in  places  where  the 
agent  has  no  express  or  implied  right  or  duty  to  be.  If  the 
agent  impelled  by  mere  idle  curiosity  goes  into  a  place  of  danger, 
into  which  the  principal  had  no  reasonable  ground  to  anticipate 
that  he  might  go,  the  principal  would  not  be  liable;'  but  the 
principal  must  take  into  his  consideration  the  age,  habits  and 
instincts  of  his  agents,  and  will  be  liable  if  he  fails  to  warn  them 
of  dangers  known  to  him  in  places  where  he  might  reasonably 
liave  anticipated  that  their  natural  instincts  or  curiosity  might 
lead  them.* 

S  659.  2.  For  dangerous  Tools  and  Machinery.  And  the  same 
rule  applies  to  the  use  of  dangerous  tools  and  machinery,  where 
the  principal  has  expressly  or  impliedly  undertaken  to  furnish 
them.  The  principal  is  under  no  obligation  to  provide  the  new- 
est, latest  or  best  machinery,  tools  or  appliances,  or  to  adopt 
every  new  improvement ;  but  he  may  conduct  his  business  with 
such  machinery,  tools  and  appliances  as  he  deems  best  adapted  to 
his  purposes  and  means,  provided  he  uses  reasonable  prudence 
and  care  in  the  selection  of  such  as  are  reasonably  safe  and 
proper  for  use,  and  keeps  them  in  a  reasonable  state  of  repair.* 

1  Parkhurst  v.  Johnson,  60  Mich.  »  Severy  «.  Nickerson.  120  Mass. 
70,  45  Am.  Rep.  28;  Strahlendorf  v.  806;  Pierce  «.  Whitcomb,  48  Vt.  127, 
Rosenthal,  30  Wis.  674.  21  Am.  Rep.  120;  Wright  v.  Rawson, 

2  Parkhurst  v.  Johnson,  50  Mich.  62  Iowa,  329,  35  Am.  Rep.  275;  Pitts- 
70,  45  Am.  Rep.  28;  Coombs  v.  New  burg,  &c  R.  R.  Co.  v.  Sentmeyer,  92 
Bedford  Cordage  Co.,  102  Mass.  572,  Penn.  St.  276,  37  Am.  Rep.  684; 
3  Am.  Rep.  506;  Smith  ©.  Oxford  Doggett  ».  Illinois  Cent.  R.  R.  Co.,  34 
Iron  Co.,  42  N.  J.  L.  467;  Baker  v.  Iowa  284. 

Alleghany,&c.  R.R.  Co.,'95Penn.  St.  «  Atlanta  Cotton    Factory    Co.   v. 

211 ;  Jones  v.  Florence  Mining  Co. ,  66  Speer,  69  Ga.  137,  47  Am.  Rep.  750. 

Wis.  268,  57  Am.  Rep.  269;   Bartons-  sWormell  «.  Maine  Central  R.  R 

hill  Coal  Co.  V.  Reid,  3  Macq.  266;  Co.,  79  Me.  397,  1  Am.  St.  Rep.  331; 

Hill  V.  Gust.  55  Ind.  45;  Anderson  v.  Sweeney  v.  Berlin  &  Jones  Envelope 

Morrison.  22    Minn.  274;  St.  Louis.  Co.,  101  N.  Y.  520,  54  Am.  Rep.  722; 

&c.  Ry.  Co.  V.  Valirius,  56  Ind.  511;  Lake  Shore,  &c.  Ry.  Co.  t.  McCor- 

Thompson  v.  Chicago,  &c.  Ry  Co.,  14  mick,  74  Ind.  440;  Coombs  v.  New 

Fed.  Rep.  564;  Sullivan  v.  India,  &c  Bedford  Cordage  Co.,  102  Mass.  572, 

Co    113  Mass.  396.  8  Am.  Rep.  606;  Brann  v.  Chicago, 

484 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL   TO    AGENT. 


§659. 


It  may  be  said  that  the  use  of  any  machinery  involves  more 
or  less  of  risk,  and  in  many  cases  the  degree  of  risk  is  very  great. 
This  risk,  however,  is  a  risk  incident  to  the  business,  and  if  the 
agent,  being  of  sufficient  age  and  experience  to  appreciate  the 
dangers  accepts  the  employment,*  or  continues  in  it,'  knowing  or 
having  full  opportunity  to  know,  of  the  dangers,  he  assumes  the 
responsibility  of  injury. 

But  even  in  this  case,  a  duty  of  warning  attaches  to  the  prin- 
cipal. If  there  are  concealed  dangers  known  to  the  principal, 
but  of  which  the  agent  is  ignorant,  it  is  the  duty  of  the  principal 
to  notify  the  agent  of  their  existence.*     So  if,  by  reason  of  the 


&c.  R.  R.  Co.,  53  Iowa  595,  36  Am. 
Rep.  243;  Corcoran  v.  Holbrook,  59 
N.  Y.  517,  17  Am.  Rep,  369;  Ford  v. 
Fitchburg  R.  R.  Co.,  110  Mass.  240. 
14  Am.  Rep.  598;  Wonder  v.  Balti- 
more, &c.  R.  R.  Co.,  32  Md.  411,  3 
Am,  Rep.  143;  Michigan  Cent.  R,  R. 
Co.  V.  Smithson,  45  Mich.  212;  Jones 
V.  Granite  Mills,  126  Mass.  84,  30  Am. 
Rep.  661 ;  Western,  &c.  R.  R.  Co.  t>. 
Bishop,  50  Ga.  465;  Payne  v.  Reese, 
lOOPenn.  St,  301;  Louisville,  «&c.  R. 
R.  Co,  V.  Orr,  84  Ind.  50:  Philadel- 
phia, &c.  R,  R,  Co,  «.  Keenan,  103 
Penn.  St.  124;  Fort  Wayne,  &c.  R. 
Co.  V.  Gildersleeve,  33  Mich,  133. 

» Dowling  V.  Allen,  74  Mo,  13,  41 
Am,  Rep,  298;  Smith  »,  St.  Louis, 
&c.  Ry.  Co.,  69  Mo.  32,  33  Am.  Rep, 
484;  Porter  v,  Hannibal,  &c,  R.  R, 
Co,,  71  Mo.  66,  36  Am,  Rep.  454; 
Coombs®,  New  Bedford  Cord. Co,,  102 
Mass.  572,  3  Am,  Rep.  506;  Sweeney 
V.  Central  Pac.  R,  R,  Co,,  57  Cal.  15; 
Hayden  v.  Smithsville  Mfg,  Co.,  29 
Conn.  584;  Bell  v.  Western,  &c.  R. 
R.  Co.,  70  Ga.  566;  Dowell  v.  Bur- 
lington, &c.  R.  R.  Co.,  62  Iowa  629; 
Yeaton  «,  Boston,  &c.  R,  R,  Co,,  135 
Mass,  418;  Fort  Wayne.  «&c.  R,  R, 
Co.  t>.  Gildersleeve,  33  Mich.  133; 
Hathaway  v.  Michigan  Cent.  R.  R, 
Co.,  51  Mich,  253;  Richards i>.  Rough, 
63  Mich.  212;  Gibson  «.  Erie  Ry,  Co., 


63  N.  T.  449.  20  Am  Rep,  552;  Lan- 
ing  V.  New  York  Cent.  R.  R.  Co.,  49 
N,  Y.  521,  10  Am,  Rep,  417;  Watson 
V.  Railway  Co..  58  Tex.  434;  Won- 
der V.  Baltimore,  «&c.  R.  R,  Co.,  83 
Md,  411,  3  Am.  Rep.  143. 

«Swobodafl.  Ward,  40  Mich.  420 
Richards  v.  Rough,  63  Mich,  213 
Pingree  v.  Leyland,  135  Mass.  398 
Huddleston  v.  Lowell  Machine  Shop, 
106  Mass.  282;  Umback  v.  Lake 
Shore,  «&c.  Ry.  Co.,  83  Ind.  191;  Bell 
«.  Western,  &c.  R.  R.  Co,,  70  Ga. 
666;  McGlynn  v.  Brodie,  31  Cal.  376; 
Sowden  v.  Idaho  Mining  Co.,  55  Cal, 
443;  Camp  Point  Mfg.  Co,  v.  Ballou, 
71  111.  417;  Kroy  v.  Chicago,  &c.  R. 
R.  Co.,  32  Iowa 357;  Behmt).  Armour, 
58  Wis,  1;  Sullivan  v.  Louisville 
Bridge  Co.,  9  Bush.  (Ky.)  81;  Porter 
V.  Hannibal.  &c.  R.  R.  Co.,  71  Mo. 
66. 

»  Dowling  V.  Allen,  74  Mo,  13,  41 
Am.  Rep.  298;  Grizzle  v.  Frost,  3 
Fost&Fin.  622;  Baxter  v.  Roberts, 
44  Cal.  187,  13  Am.  Rep.  160;  Ford 
«.  Fitchburg  R.  R,  Co.,  110  Mass, 
240;  Texas,  &c.  Ry.  Co.  v.  McAtee, 
61  Tex.  695;  Ryan  v.  Fowler,  24  N. 
Y.  410;  Paterson*.  Wallace,  1  Macq. 
748;  Atchison,  &c,  R.  R,  Co,  v.  Holt, 
29  Kan.  149 ;  Malone  v.  Hawley,  46 
Cal.  409;  Hayden  v.  Smithville  Mfg. 
Co.,  39  Conn.  548. 


485 


g  660.  THE    LAW    OF    AGENCY.  [Book  IV. 

youth  or  inexperience  of  the  agent,  he  is  not  aware  of  the  dan- 
gers involved,  it  is  the  duty  of  the  principal  to  inform  the  agent 
of  them  if  they  are  known  to  him.*  It  is  not  enough  in  these 
cases  that  the  dangerous  parts  of  the  machinery  should  be  visi- 
ble, because  the  agent,  though  knowing  the  fact,  may  be  utterly 
ignorant  of  the  risks.* 

That  the  principal  knew  or  by  the  exercise  of  proper  care  and 
diligence  might  have  known  of  the  danger,  is  an  essential  ingre- 
dient of  the  cause  of  action  and  a  declaration  or  complaint  which 
does  not  allege  it  is  fatally  defective.' 

§  660.  3.  For  injuries  resulting  from  Failure  to  repair  as 
agreed.  Should  the  agent  discover  that  the  service  has  become 
more  hazardous  than  usual,  or  than  he  had  anticipated,  by  reason 
of  defective  machinery,  the  retaining  of  unfaithful  fellow-ser- 
vants, or  of  any  other  cause,  the  general  rule  is  that  he  must 
quit  the  service  or  assume  the  extra  risks  to  which  he  is  exposed.* 
But  this  general  rule  is  subject  to  certain  exceptions.  The  agent 
has  a  right  to  expect  that,  if  the  defect  were  brought  to  the 
knowledge  of  the  principal,  he  would  remedy  or  remove  it.  But 
on  the  other  hand,  the  agent  has  no  right  to  complain  of  dangers 
or  defects  known  to  him  but  which  he  fails  to  communicate  to 
the  principal,  so  as  to  give  the  latter  an  opportunity  to  remove 
them.  Where,  therefore,  the  agent  discovers  defects  in  machin- 
ery, or  anything  else  that  renders  the  service  more  hazardous,  he 
should  at  once  report  the  same  to  the  principal  or  to  the  person 
who  represents  him  in  that  respect,  and  unless  he  does  so,  he  can- 
not recover  from  the  principal  for  injuries  occasioned  by  extra 
perils  which   he  voluntarily  encounters  without  notice  to  the 

"Smith  V.  Peninsular  Car  Works,  Clarke  i>.  Holmes,   7  H.   &  N.  937^ 

60  Mich.  501,    1   Am.  St.   Rep.  542;  Bowling  v.  Allen,  74  Mo.  13,  41  Am. 

Coombs  V.   New    Bedford    Cordage  Rep.  298. 

Co.,  102  Mass.  572,  8  Am.  Rep.  506;  »  Priestly  'V.  Fowler,  3  M.  &  W.  1, 

Grizzle  t>.  Frost,  8  Fost.  &  Fin.  622;  Griffiths®.  London,  &c.  Docks  Co., 

Swoboda  v.  Ward,  40  Mich.  420;  Hill  18  Q.  B.  Div.  259,  37  Eng.  Rep.  649, 

V.  Gust,  55  Ind.  45;  Sullivan  v.  India  Buzzell  v.  Laconia  Mfg.  Co.,  48  Me. 

Mfg.  Co.,  113  Mass.   396;    St.   Louis,  113,    77    Am.    Dec.    212;    Noyes  v. 

&c.  Ry.  Co.  V.  Valirius,  56  Ind.  511;  Smith,  28  Vt.  59,  65  Am.  Dec.  222. 

Dowling  V.  Allen,  74  Mo.  18,  41  Am.  *  Missouri  Furnace  Co.  v.  Abend, 

Rep.  298.  107  111.  44,  47  Am.  Rep.  425;  Eureka 

t  Coombs  V.  New  Bedford  Cordage  Co.  v.  Bass,  81  Ala.  200,  60  Am.  Rep. 

Co.,  102  Mass.  573.  3  Am.  Rep.  506;  153. 

486 


Chap.  lY.]  LIABILITY   OF   PKINCIPAL   TO    AGENT.  §  661. 

principal.  The  relation  of  principal  and  agent,  or  of  master  and 
servant,  imposes  no  obligation  on  the  principal  or  master  to  take 
more  care  of  the  agent  or  servant  than  the  latter  is  willing  to  ob- 
serve for  his  own  safety.'  But  where  the  principal,  on  being 
notified  bj  the  agent  of  defects  that  render  the  service  he  is  en- 
gaged in  more  hazardous,  expressly  promises  to  make  the  neces- 
sary repairs,  the  agent  may  continue  in  the  employment  for  a 
reasonable  time  to  permit  the  performance  of  the  promise,  with- 
out being  guilty  of  negligence,  and  if  any  injury  results  there- 
from he  may  recover,  unless  the  danger  were  so  imminent  that 
no  prudent  person  would  undertake  to  perform  the  service.' 
The  reason  upon  which  the  rule  is  said  to  rest,  is  that  the  promise 
of  the  principal  to  repair  defects  relieves  the  agent  from  the 
charge  of  negligence  in  continuing  in  the  service  after  the  dis- 
covery of  the  extra  perils  to  which  he  would  be  exposed.' 

§  661.  Same  Subject.  The  mere  fact  that  the  agent  has  com- 
plained of  the  defect  will  not  entitle  him  to  recover.  There 
must,  in  addition,  be  shown  a  promise  to  repair  upon  which  the 
agent  has  relied.  And  if  he  continues  to  serve  without  further 
assurances  after  the  expiration  of  a  reasonable  time  from  the  date 
of  the  promise  to  repair,  he  will,  ordinarily,  be  deemed  to  have 
accepted  the  risk  of  the  dangers,  and  the  principal  will  not  be 
liable.*     Whether  under  the  circumstances  and  in  view  of  the 

'Missouri  Furnace  Co.  v.  Abend,  Works,  63  Mo.  35;  LeClair  v.   Rail- 

$upra;  Indianapolis,  &c.  R.  R.  Co.  v.  road  Co.,  20  Minn.  9;  Brabbits  v.  Ry. 

Flanigan,   77  111.  365;  Pennsylvania  Co.,  38  Wis.  289. 

Co.  V.  Lynch,  90  111.  334;  Columbus,  But  see  Sweeney®.  Berlin,  &c.  Co., 

&c.  Ry.  Co.  V.  Troesch,  68  111.   545,  101  N  Y.  520,  54  Am.  Rep.  722. 

18  Am.  Rep.  578.  3  Missouri  Furnace  Co.   v.   Abend. 

s  Eureka  Co.  «.  Bass,  81  Ala.  200;  supra;  Clarke  v.  Holmes,  supra; 
60  Am.  Rep.  152;  Missouri  Furnace  Hough  ».  Railway  Co.,  supra. 
Co.  V.  Abend,  supra;  Greene  v.  Min-  ■•  East  Tennessee,  &c.  R.  R.  Co.  e. 
neapolisand  St.  Louis  Ry.  Co.,  31  Duffleld,  12  Lea  (Tenn.)  63,  47  Am. 
Minn.  248,  47  Am.  Rep.  785;  Manu-  Rep.  319;  Galveston,  «&c.  Ry.  Co.  v. 
facturingCo.  v.  Morrissey,  40  Ohio  Drew,  59  Tex.  10,  46  Am.  Rep.  261; 
St.  148,  48  Am.  Rep.  669 ;  Galveston,  Conroy  v.  Vulcan  Iron  Works,  62 
&c.  Ry.  Co.  V.  Drew,  59  Tex.  10,  46  Mo.  35,  s.  c.  6  Mo.  App.  102;  Crutch- 
Am.  Rep.  261;  Hough  t>.  Railway  Co.,  field  ».  Railroad  Co.,  78  K  C.  300; 
100  U.  S.  213;  Holmes©.  Clarke,  6  H.  Eureka  Co.  v.  Bass,  81  Ala.  200,  60 
&  N.  348;  Clarke  v.  Holmes,  7  H.  &  Am.  Rep.  152. 

N.  937;  Patterson  v.  Pittsburg,  &c.  In  Eureka  Co.  v.  Bass,  supra,  Som- 

R  R.  Co.,  76  Penn.  St.  389,  18  Am.  ERViLLE,J.,says:  "We  have  said  that 

Rep.   412;    Conroy  «.   Vulcan    Iron  the  carrying  of  the  risk  by  the  em- 

487 


§601. 


THB    LAW    OF   AGENCY. 


[Book  lY. 


promise  to  repair,  the  agent  exercised  due  care  in  continuing  to 
use  the  defective  machinery,  is  a  question  for  the  jury  to  de- 
termine.' 

This  question  most  frequently  occurs  in  those  cases  where  the 
defects  or  dangers  arise  after  the  agent  has  entered  upon  his  ser- 
vice, and  not  to  those  where  he  was  fully  aware  of  the  dangers 
before  he  accepted  the  employment,  but  even  in  such  cases  the 
agent  has  a  right  to  rely  upon  the  principal's  promise  that  he 
will  repair.  But  this  rule  presupposes  that  there  are  defects  in 
the  tools,  machinery  or  appliances  furnished.  If  on  the  other 
hand  those  furnished  by  the  principal  are  reasonably  safe  and 
proper  for  use,  although  not  the  best  possible,  or  of  the  latest 
design,  the  principal  has  done  his  duty  and  the  agent  assumes 


ployer  will  be  implied  to  continue 
only  for  a  reasonable  time  after  the 
making  of  the  promise  by  him  to  re- 
move the  danger  producing  it.  The 
injury,  in  other  words,  must  have  oc- 
curred within  the  time  at  which  the 
defects  were  promised  to  be  removed. 
If  the  employee  continues  to  expose 
himself  to  the  danger  by  remaining 
in  the  service  longer  than  this,  he 
does  so  in  face  of  the  fact  that  the 
promise  of  the  employer  is  violated, 
and  that  he  has  no  reasonable  expec- 
tation of  its  fulfillment.  He  can  no 
longer  therefore  rely  upon  the  prom- 
ise, and  must  know  that  his  contin- 
uance in  service  under  such  circum- 
stances is  equally  as  hazardous  and 
hopeless  of  remedy  as  if  no  assurance 
or  promise  had  ever  been  made.  A 
promise  already  broken  can  afford  no 
reasonable  guaranty  of  the  fulfillment 
of  any  expectation  based  on  its  dis- 
appointed assurances.  For  a  servant 
or  employee  to  persist  in  exposing 
himself  to  danger  on  the  faith  of 
such  a  promise  may  often  be  a  want 
of  that  ordinary  prudence  which  the 
law  exacts  of  him  at  every  stage  of 
his  employment,  according  to  the  de- 
gree and  nature  of  the  danger. 
His  continuance  in  the  service  for  an 


unreasonable  length  of  time  after 
such  promise  is  a  waiver  of  the  de- 
fects agreed  to  be  remedied  by  hia 
employer.  The  risk,  therefore,  again 
becomes  his  own,  and  his  conduct,  as 
we  have  said,  though  not  necessarily, 
or  per  se  negligent,  may  or  may  not 
become  negligent  according  to  the 
circumstances  of  the  particular  case. 
Greene©.  Minn.  &  St.  Louis  R.  Co., 
31  Minn.  248,  47  Am.  Rep.  785;  Mis- 
souri Furnace  Co,  v.  Abend,  107  111. 
44,  47  Am.  Rep.  435;  Manufacturing 
Co,  ».  Morrissey,  40  Ohio  St.  148,  48 
Am.  Rep.  669;  Woodward  Iron  Co, 
V.  Jones,  80  Ala.  12.3;  Shear.  «fc  Redf. 
Neg.  §  96;  Beach  Contr.  Neg..  §  140; 
2  Thomp.  Neg.  1009,  1010;  Patterson 
V.  Pittsburg,  &c.  R.  R,  Co.,  76  Penn. 
St.  389,  18  Am.  Rep.  413;  Lansing «;. 
N.  Y.  Cent.  R.  R.  Co.,  49  N.  Y.  513, 
10  Am.  Rjp.  417;  Saunders  Neg.  137; 
Holmes  v.  Clarke,  6  Hurl.  &  N.  349; 
30  L.  J.  Ex.  135;  Wood  Mast,  and 
Serv." 

«  Hough  V.  Railway  Co.,  100  U.  S. 
213;  Ford  v.  Fitchburg  R.  R.  Co., 
110  Mass.  261,  14  Am.  Rep.  593; 
Laning  v.  New  York  Cent.  R.  R.  Co., 
49  N.  Y.  521.  10  Am.  Rep.  417;  Snow 
V.  Housatonic  R.  R.  Co.,  8  Allen 
(Mass.)  441,  83  Am.  Dec.  730. 

488 


Chap.  lY].  LIABILITY    OF    PKINCIPAL    TO    AGENT.  §  G62. 

the  risk.  In  such  a  case,  not  even  the  express  promise  of  the 
principal  that  he  will  furnish  new  or  better  ones,  or  will  take 
greater  precautions  for  the  agent's  safety,  will  give  the  agent 
a  right  of  action  for  an  injury  received  from  the  old.* 

§  662.  4.  For  Employment  of  inoompetent  Servants.  It  ia 
the  duty  of  the  principal  to  use  reasonable  care  and  prudence  in 
the  selection  and  employment  of  his  agents  and  servants,  and  for 
a  want  of  such  care  and  prudence,  he  is  liable  to  all  of  his  other 
servants  and  agents  who  suffer  injury  therefrom.'  This  being  his 
duty  as  to  the  selection  and  employment,  he  is  under  a  like  duty 
as  to  the  retention  of  his  servants  and  agents.  If  having  received 
knowledge  of  their  incompetence  or  unfitness,  he  still  retains  them 
in  his  employ,  he  must  respond  in  damages  to  others  who  are 
injured  thereby.' 

He  is  not  a  guarantor,  however,  of  the  fitness  or  competence  of 
those  whom  he  employs,  and  it  is  not  enough  to  show  the  fact  of 
the  incompetence,  but  it  must  also  be  shown,  in  the  one  case  that 
he  might  by  exercise  of  reasonable  care  and  diligence  have  dis- 
covered it,  and  in  the  other  case  that  knowledge,  or  facts  sufficient 
to  have  led  to  knowledge,  of  the  incompetency  had  been  brought 
home  to  him.* 

>  Marsh  v.   Chickering,  101   N.  Y.  »  Laning  v.  New  York  Cent.  R.  R. 

856;  reported  also  ia  note  to  54  Am.  Co.,  49  N.  Y.  531,   10  Am.  Rep.  417; 

Rep  at  p.   727;    Sweeney  v.   Berlin,  Baulec    v.   New  York,   &c.    R.    R. 

&c.  Envelope  Co.,  101  N.  Y.  520,  54  Co.,  59  N.  Y.  356,  17  Am.  Rep.  325; 

Am   Rep.  722.  Pittsburg,  &c.  R.  R.  Co.  v.  Ruby,  38 

«  Moss  V.  Pacific  R.  R.  Co.,  49  Mo  Ind.  294,  10  Am.  Rep.  Ill;  Chapman 

167,  8  Am.  Rep.  126;  Columbus,  &c.  v.  Erie  Ry  Co.,  55  N.  Y.  579;  Davis 

R.  R.  Co.  V.  Troesch,  68  III.  545,  18  v.  Detroit,  &c.  R.  R.  Co.,   20  Mich. 

Am.    Rep.  578;  Harper  v.  Indiana-  105,  4  Am.  Rep.  364, 

polls,  &c.  R.  R.  Co.,   47  Mo.  567,  4  *  Huffman  v.  Chicago,  «&c.   R.   R. 

Am.  Rep.  353;  Davis  v.  Detroit,  &c.  Co.  78  Mo.  50;  Kersey*.  Kansas  City, 

R.  R.  Co.,  20  Mich.  105,  4  Am.  Rep.  &c.  R.  R.  Co.,  79  Mo.  362;  East  Ten- 

364;  Tyson  t>.  Railroad  Co.,  61  Ala.  nessee,  &c.  R.  R.  Co.  v.   Gurley,   12 

554;  Chicago,  &c.  R.  R.  Co.,  v.  Har-  Lea  (Tenn.)  46;  Alabama,  &c.  R.    R. 

ney,  28  Ind.  28;  Blake  t».  Maine  Cent.  Co.  v.   Waller,   48  Ala.    459;    Ohio, 

R.  R.  Co.,  70  Me.  60;  Bunnell  v.  St.  &c.  Ry  Co.  v.  Collarn,  78  Ind.  261, 

Paul,    &c.    Ry  Co.,   29   Minn.    305;  38  Am.  Rep.  134;  Chicago,  &c.  R.  R. 

Harper  «.  Indianapolis,  &c.  R.  R.Co.,  Co.®.  Doyle,  18  Kan.  58;  Hunting- 

47  Mo.  567;  New  Orleans,  &c.  R.  R.  don,  &c.  R.    R.   Co.   •.   Decker,   84 

Co.  V.  Hughes,  49  Miss.  258;  Gilman  Penn.  St.  419. 
«.  Eastern  R.  R.  Co.,  13  Allen  (Mass.) 
433,  90  Am.  Dec.  210. 

489 


I  663.  THE    LAW    OF    AGENCY.  [Book  lY. 

S  663.  5.  For  injuries  outside  of  Employment.  It  is  those 
risks  only  which  are  incident  to  the  undertaking  of  the  agent, 
which  he  is  deemed  to  have  assumed,  and  not  those  of  some  other 
or  different  duty  or  employment.'  Hence,  if  the  principal 
requires  of  the  agent  the  performance  of  an  act  outside  of  the 
scope  of  his  employment,  it  is  his  duty  to  fully  inform  the  agent 
of  the  perils  of  the  undertaking  and  warn  him  against  them.  If 
he  fails  in  this  duty  and  the  agent  thereby  suffers  injury,  the 
principal  is  liable.* 

This  is  particularly  true  where  the  agent  is  young  or  inexperi- 
enced, and  not  likely  to  anticipate  or  guard  himself  against 
injury.  It  is,  of  course,  true  that  the  agent  would  be  under  no 
obligation  to  obey  instructions  which  required  of  him  the  per- 
formance of  a  duty  beyond  the  scope  of  his  undertaking,  but, 
as  has  been  well  said,  where  one  contracts  to  submit  himself  to 
the  orders  of  another,  there  must  be  some  presumption  that  the 
orders  he  receives  are  lawful.  The  giving  of  the  orders  is,  of 
itself,  an  assumption  that  they  are  lawful,  and  the  servant  or 
ao-ent  who  refused  to  obey  would  take  upon  himself  the  burden 
of  showing  a  lawful  reason  for  the  refusal,  and  in  case  of  a  failure 
80  to  do,  he  would  incur  the  double  risk  of  losing  his  employ- 
ment and  being  compelled  to  pay  damages.  These  are  sufficient 
reasons  for  excusing  him  if  he  declines  to  take  this  responsibility 
in  any  case  in  which  doubts  can  fairly  exist ;  he  should  assume 
that  the  order  is  given  in  good  faith  and  in  the  belief  that  it  is 
rio-htful,  and  if  in  his  own  judgment  it  is  unwarranted,  it  is  not 
for  the  principal  to  insist  that  he  was  wrong  in  not  refusing 
obedience.*  But  it  has  been  held  that  where  the  agent  is  of 
mature  age  and  intelligence,  and  knows  the  increased  hazard  and 
that  it  is  not  embraced  within  the  scope  of  his  duties,  he  cannot 
recover  of  the  principal  for  injuries  received  by  reason  of  his 

>  Chicago.  &c.  Ry  Co.  v.  Bayfield,  Wis.  603,  33  Am.  Rep.  784;   O'Con- 

87  Mich.  205;  Railroad  Co.  v.  Fort,  nor  «.  Adams,  120  Mass.  427;  Jones 

17  Wall.  (U.S.)  553;  Lalorc.  Chicago,  v.  Lake  Shore,  &c.  Ry  Co.,  49  Mich. 

&c.  R.  R.  Co.,  52  111.  401,  4  Am.  Rep.  573;  Broderick  v.  Detroit  Unioa  De- 

glQ  pot  Co.,  56  Mich.  261,  56  Am.   Rep. 

2  Chicago,  (fee.  Ry  Co.  v.  Bayfield,  382. 
87  Mich.  205;  Lalor  v.  Chicago,  &c.  3  Chicago,  &c.  Ry  Co.  v.  Bayfield, 

R.  11.  Co.,  52  111.   401,   4  Am.    Rep,  87  Mich,    205;    Thompson    v.    Her- 

616;  Wheeler  v.  Wason  Mfg.  Co.,  135  mann,  47  Wis.  602,  32  Am,  Rep.  784. 
Mass.  294;  Thompson  v.  Hermann,  47 

490 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL   TO    AGENT.  §  665. 

ignorance  and  inexperience,  although  he  undertook  the  act  for 
fear  of  losing  his  position.' 

3.  For  Negligence  of  his  General  Superintendent. 

§  QQ^.  Principal  can  not  relieve  himself  by  delegating  Duties. 
The  principal  can  not  relieve  himself  from  responsibility  to  his 
agents  by  delegating  the  performance  of  his  duties  to  a  superior 
agent  or  general  manager  or  superintendent.  The  duty  to  exer- 
cise reasonable  care  and  prudence  in  the  selection  and  care  of 
machinery,  and  in  the  employment  and  retention  of  other  agents 
and  servants  is  an  absolute  one  which  attaches  to  the  relation, 
and  if  he  sees  fit  to  entrust  to  an  alter  ego  the  general  perform- 
ance of  his  duties  as  principal  he  must  personally  answer  for  the 
manner  in  which  they  are  performed." 

§665.  Liable  for  Negligence  of  general  Agent  or  Superin- 
tendent. It  is  therefore  well  settled  that  where  the  principal 
entrusts  to  a  general  agent  the  power  and  the  duty  to  pur- 
chase, control  or  keep  in  repair  the  implements  or  machinery  to 
be  used,  or  the  power  and  duty  to  employ,  regulate  and  dis- 
charge on  his  account  the  agents  or  servants  to  be  employed,  the 
principal  is  liable  to  an  agent  or  servant  for  a  neglect  in  the  per- 
formance of  these  duties  by  such  general  agent,  in  the  same 
manner  and  to  the  same  extent  as  though  the  neglect  had  been 
that  of  the  principal  himself  were  he  personally  managing  and 
controlling  the  business.* 

»  Leary  v.  Boston  &  Albany  R.  R.,  64  K  T.  6,  21  Am.  Rep.  573;  Fuller 

139    Mass.   580,   53    Am.    Rep,    733;  v.  Jewett,  80  N.  Y.  46,  36  Am.  Rep 

Curamings    «.    Collins,   61   Mo.    520;  575 ;  Brothers  t).  Cartter,  53  Mo.  373, 

Woodley?).    Metropolitan  Ry  Co.,  2  14  Am.  Rep.  424;  MuUan  ».  Philadel 

Exch,  Div.  506,  21  Eng.  Rep.  (Moak)  phia,  &c.  Steamship  Co.  78Penn.  St 

506.     But  contra,  see  Jones  v:  Lake  25,  21  Am,   Rep.  3;  Ford  v.  Fitch 

Shore,   &c.  Ry  Co.,   49   Mich.    573;  burg  R.  R.  Co.  110  Mass.  240,  14  Am 

Lalori).  Chicago,  «&c.  Ry  Co.,  52  111.  Rep.    598;    Meara's    Admr.    v.  Hoi 

401,  4  Am.  Rep.  616.  brook,  20  Ohio  St.   137,   5  Am.  Rep 

8  See  cases  cited  in  following  sec-  633,  Gunter  v.  Graniteville  Mnfg  Co 

tion.  18  S.  C.  263,  44  Am.  Rep.  573;  Mitch 

«  Bushby  v.  New  York  &c.  R.  R.  ell  v.  Robinson,  80  Ind.  281,  41  Am 

Co.   107  K  Y.   374,  1  Am.  St.  Rep.  Rep;  813;  Cowlesi).  Richmond,  &c.  R, 

844;  Fliket>.  Boston,  &C.R.R.  Co,  53  R.  Co.   84  N.   C.  309.  37  Am.  Rep 

N.  Y.  549,    13  Am.   Rep.  545;  Cor-  630;  Tyson  v.  North,  &c.  R.R.  Co.  61 

coran  v.  Holbrook,  59  N.  Y.  517,  17  Ala.  554,  32  Am.  Rep.  8;  Bowling  v 

Am.  Rep.  369;   Malone  v.  Hathaway,  Allen,  74  Mo.  13,  41  Am.  Rep.  298; 

491 


§  GGQ.  THE   LAW   OF    AGENCY.  [Book  IV". 

Such  a  general  agent  or  superintendent,  called  by  whatever 
name,  is  not  a  fellow-servant  or  co-employee  of  the  agents  or 
servants  employed  by  and  acting  under  him.  For  the  time  being 
he  stands  in  the  principal's  shoes  and  his  neglect  is  the  neglect  of 
the  principal.^  This  rule  applies  alike  to  corporations  and  to 
individuals,  although  from  the  very  nature  of  the  case,  the  occa- 
sions or  necessities  for  the  employment  of  such  a  general  agent 
are  much  greater  in  the  case  of  corporations  than  in  that  of 
individuals.* 

§  666.  When  liable  to  Agents  of  Contractor.  Care  should  be 
taken,  however,  to  distinguish  between  the  case  considered  in 
the  last  section,  and  that  of  an  independent  contractor  who  has 
undertaken  to  perform  certain  services  for  the  principal,  and  to 
furnish  the  necessary  macliinery,  appliances  and  labor.  The 
agent  or  servant  of  such  a  contractor  could  not  be  considered  to 
be  the  agent  or  servant  of  the  principal,  nor  could  the  contractor 
himself  be  considered  such  an  alter  ego  of  the  principal  as  to 
render  the  latter  liable,  to  a  servant  or  agent  of  the  contractor, 
for  an  injury  occasioned  by  the  neglect  of  the  contractor  in  fur- 
nishing and  keeping  in  repair  the  necessary  machinery,  or  in 
employing  or  retaining  incompetent  servants.'  The  principal 
would,  however,  be  liable  to  the  servant  or  agent  of  the  con- 
tractor for  an  injury  received  from  perils  or  dangers  in  the  prin- 
cipal's premises,  where  such  servant  or  agent  had  a  right  to  be, 
of  which  the  principal  had  knowledge  but  of  which  the  agent 
or  servant  was  left  in  ignorance.  This  liability  does  not  rest 
upon  the  relation  of  principal  and  agent,  or  of  master  and  ser- 

East  Tennessee,    &c.    R    R.  Co.  r.  apolis,  &c.  R.  R.  Co.   47  Mo.  567,  4 

Duffleld,  12  Lea  (Tenn.)  63.    47  Am.  Am.  Rep.  353. 

Rep.    319;    Wilson     v.    Willimantic  *  See  cases,  supra. 

Linen  Co.  50  Conn.  433,  47  Am.  Rep.  «  See  cases,  supra. 

653;  Ryan*.  Bagaley.  50  Mich,  179,  »  Knoxville  Iron  Co.  ».  Dobson,  7 

45  Am.  Rep.  35;  Brown  t).  Sennett,  68  Lea  (Tenn.)  367;  Hilliard  e.  Richard- 

Cal.   225,   58  Am,  Rep,  8;  Beeson  u.  son,  3  Gray  (Mass.)  349,  63  Am.  Dec. 

Green    Mountain    Co.    57    Cal.    20;  743;  Bos  well  v.  Laird,  8  Cal.  469,  68 

Gormley  v.  Vulcan  Iron  Works.  61  Am.  Dec.   345;   Kellogg  b.  Payne.  21 

Mo.    492;    Shanny   e.  Androscoggin  Iowa,  575;  Aliens.  Willard,  57  Penn. 

Mills,  66  Me.  420;  Cumberland,  &c.  St.  374;  McCafferty  t).  Spuyten  Duy- 

R.  R.   Co.  r>.  State,  44  Md.  283.  s.  c.  vil,  «fcc.  R.  R.  Co.  61  N.  Y,  178,  19 

45  Md,  229;  Brabbits  t.  Chicago  &c.  Am.  Rep.    267;  King  v.   New  York, 

Ry  Co.  38Wis,289;  Harper  ».  Indian-  &c.  R.  R.  Co,  66  N.  Y.  181,  23  Am. 

Rep,  37, 

492 


Chap.  IV.]  LIABILITY   OF    PRINCIPAL   TO    AGENT.  §  G67. 

vant,  but  upon  the  broad  and  familiar  principle  that  every  man 
who  expressly  or  by  implication  invites  others  to  come  upon  his 
premises,  assumes  to  all  who  accept  the  invitation,  the  duty  of 
warning  them  of  any  danger  in  coming,  which  he  knows  of  or 
ought  to  know  of,  and  of  which  they  are  not  aware.*  So  if  the 
principal  was  by  the  terms  of  the  contract  under  obligation  to 
the  contractor  to  furnish  the  necessary  machinery  or  appliances, 
or  to  supply  a  portion  of  the  labor,  he  would  be  liable  to  the 
agent  or  servant  of  the  contractor  for  an  injury  sustained  by 
reason  of  his  neglect  to  use  due  and  reasonable  care  in  selecting 
and  keeping  in  repair  the  proper  machinery  or  appliances,  or  in 
employing  and  retaining  competent  servants.* 

4.  For  Negligence  of  Fellow-servant. 
§  667.  Principal  not  liable  to  one  Servant  for  Negligence  of  a 
Fellow-servant.  The  principle  ia  now  firmly  established  in  the 
law,  both  in  England  and  the  United  States,  that  a  master  is  not 
liable  to  one  servant  for  an  injury  received  by  the  latter,  result- 
ing from  the  negligence,  carelessness  or  misconduct  of  a  fellow- 
servant  engaged  in  the  same  general  business.'     It  is  inevitable 

'  Samuelson  v.  Cleveland  Iron  Min-  fell,  killing  a  servant  of  O,  who  was 
ing  Co.  49  Mich.  164,  43  Am.  Rep.  at  work  upon  it.  It  was  held  that 
466;  Southcote  v.  Stanley,  1  H.  «&  N.  defendant  was  liable.  The  court 
247;  Indermaur  v.  Dames,  L.  Repts.  distinguish  the  case  from  Winter- 
1  C.  P.  274,  8.  c.  2  Id.  311;  Francis  bottom©.  Wright,  10  M.  &.  W.  109; 
V.  Cockrell  L.  R.  6  Q.  B.  184;  Elliott  Longmeid  v.  Halliday,  6  Eng.  Law  & 
V.  Pray,  10  Allen  (Mass.)  378;  Eq,  761 ;  Loop  e.  Litchfield,  42  N.  Y. 
Coughtry  v.  Woolen  Co.  56  N.  Y.  351,  1  Am.  Rep.  543;  Losee  e.  Clute, 
124,  15  Am.  Rep.  387;  Tobin  v.  Port-  51  N.  Y.  494,  10  Am.  Rep.  638. 
land,  &c.  R.  R.  Co.  59  Me.  183,  8  Am.  '  The  cases  upon  this  point  are  ex- 
Rep.  415;  Latham  «.  Roach,  72  111.  ceedingly  numerous,  and  no  attempt 
179;Gillis».  Pennsylvania  R.  R.  Co.  will  be  made  to  cite  them  all.  But 
59  Penn.  St.  139;  Malone  ».  Hawley,  the  following  are  among  the  number: 
46  Cal.  409;Deford».  Keyser,  30Md.  Priestley  v.  Fowler,  3  M.  &  W.  1; 
179;  Pierce©.  Whitcomb,  48  Vt.  127,  Hutchinson  v.  York,  &c.  Ry  Co.  5 
21  Am.  Rep.  120.  Ex.  343;  Wigmore  v.  Jay,  5  Ex.  354; 

•  Coughtry  t).  Globe  Woolen  Co.  56  Clarke  v.   Holmes,  7  H.  «fc  N.  937; 

N.  Y.  124,  15  Am.  Rep.  187.     In  this  Wiggett  v.  Fox,  11  Ex.  833;  Beeson 

case,  O  contracted  to  put  a  cornice  «.  Green  Mountain  G.  M.  Co.,57Cal. 

on  defendant's  mill,  defendant  agree-  20;  Colorado,  &c.  R.  R.   v.  Ogden,  3 

ing  to  erect  the  necessary  scaffolding  Colo.  499;   Shields  v.  Yonge,  15  6a. 

free  of  cost  to  O.     Defendant  erected  849,  60  Am.  Dec.  698:  Illinois,  &c.  R. 

the  scaffolding  so  negligently  that  it  R.  v.  Cox,  21  111.  20;  Chicago,  «fcc.  R 

493 


§667. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


in  those  employments  where  the  servant  is  liable  to  come  in 
contact  with  other  servants,  engaged  in  the  same  general  busi- 
ness, that  he  will  incur  more  or  less  of  risk  from  their  negligence 


R.  V.  Keefe,  47  Id.   108;  Columbus, 
&c.    Ry  V.  Troesch,  68  Id.   545;  18 
Am.    Rep.  578;  Ohio,  &c.  R.    K  v. 
Tindall,  13  Ind.  366;  Wilsons.  Mad- 
ison, &c.  R.  R.,  18  Id.  226;  Gormley 
V.  Ohio,  &c.  Ry,  72  Id.  31 ;  Ohio,  &c. 
Ry  V.    CoUaru,  73  Id.  261,   38  Am. 
Rep.  134;  Robertson  v.  Terre  Haute, 
&c.  R.  R.  78  Ind.   77,  41  Am.  Rep. 
552;  HelfrichtJ.  Williams,  84  Ind.  553; 
Louisville,   &c.   R.   R.  ®.  Collins,  2 
Duv.  114;  Hubgb®.  N.  O.  &  C.  R.  R. 
6  La.  Ann,  495,   54    Am.  Dec.   565; 
Satterly  v.  Morgan,  35  La.  Ann.  1166; 
Osborne  v.  Knox,  &c.  R.  R.  68  Me. 
49;  Blake  t).  Maine  Central  R.  R.  70 
Id.  60,  35  Am.  Rep.  297;  O'Connell  v. 
Baltimore,  «fec.   R.  R.   20   Md.   212; 
Shauck  V.  Northern,   &c.  Ry,  25  Id. 
463;    Cumberland    Coal,    &c.  Co.  v. 
Scally,     27    Id.     580;    Hanrathy  v. 
Northern,  &c.  Ry  46  Id.  280;  Penn- 
sylvania R.  R.  V.  Wachter,  60  Id.  395; 
Kelley  v.   Norcross,  121   Mass.   508; 
Harkins  v.  Standard  Sugar  Refinery, 
123  Id.  400;  Colton  v.  Richards,  133 
Id.  484;  Kelley  v.  Boston  Lead  Co., 
128    Id.    456;    Curran  v.  Merchants' 
Mfg.  Co.   130  Id.  374,  39  Am.  Rep. 
457;  McDermott  v.    City  of  Boston, 
133    Mass.    349;    Flynn   v.    City  of 
Salem,  134  Id.  351;  Floyd  v.  Sugden, 
Id.  563;  Day  v.  Toledo,  «&c.  Ry,  42 
Mich.  533;  Smith  «.  Flint,  &c.  Ry,  46 
Id.  253,  41  Am.  Rep.  161;  Greenwald 
c.  Marquette,  &c.  R.  R.  49  Mich.  197; 
Brown   v.    Winona,    &c.    R.    R.  27 
]\Iinn.  163,  38  Am.  Rep.  285;  Collins 
V.  St.  Paul,  &c.   R.  R.  30  Minn.  31; 
Brown  v.  Minneapolis,  &c.  Ry,  31  Id. 
553;  Chicago,  &c.  R.  R.  v.  Doyle,  60 
Miss.  977;  Brothers  «.  Cartter,  52  Mo. 
373,    14   Am.    Rep.  424,   Conner  v. 
Chicago,  i&c.  R.  R.  59  Mo.  285;  Mc- 
Andrews  v.  Burns,  39  N.  J.  L.  117; 


Sherman  v.  Rochester,  «fec.  R.  R.  17 
N.  Y.  153;  Laning  v.  N.  Y.  Cent.  R. 
R.    49    Id.    521,    10  Am.    Rep.  417; 
Crispin  v.  Babbitt,  81  N.   Y.  516,  37 
Am.    Rep.    521;    McCosker  v.  Long 
Island  R.  R.  84,  N.  Y.  77:  Harvey  v. 
N.  Y.  Cent.  &c.   R.    R..    88  Id.  481; 
Young  V.  N.  Y.  &c.  R.  R.  30  Barb. 
229;  Marvin  v.  MuUer,  25  Hun  163; 
Cowles  V.  Richmond,  &c.  R.  R.,  84  N. 
C.  309,  37  Am.  Rep.  630;  Columbus, 
&c.  R.  R.  V.  Webb,  12  Ohio  St.  475; 
Pittsburg,  &c.   Ry  v,    Devinney,  17 
Id.    197;   Lake    Shore,    &c.    Ry   v. 
Kaittal,  33   Id.  468;  Railway  Co.  v. 
Ranney,  37  Id.  665;  Willis  v.  Oregon, 
«&c.  R.    R.,  3  West  Coast  Rep.  240 
(Or.);  Weger  v,  Pennsylvania  R.  R. 
55  Pa.  St.  460;  Lehigh  Valley  Coal 
Co.  V.  Jones,  86  Id.  432,  6  Rep.  135; 
17    Alb.    L.    J.  513;    Delaware,  &c. 
Canal  Co.  v.  Carroll,  89  Pa.  St.  374; 
Keystone  Bridge  Co.  v.  Newberry,  96 
Id.  246,  42  Am.  Rep.  543;  MaiintJ. 
Oriental  Print  Works,   11  R.  L  153; 
Lasure  v.   Graniteville  Mfg.  Co.  18  S. 
C.   275;  Guntir  v.    Graniteville  Mfg. 
Co.  Id.  363,  44  Am.  Rep.  573;  Rags- 
dale  V.  Memphis,  &c.  R.  R.,  3  Baxt. 
(Tenn.)  436;  Nashville,  &c.  R.  R.  v. 
Wheless,  10  Lea  (Tenn.)  741,  43  Am. 
Rep.  317;  Houston,  &c.  R.  R.  v.  Myers, 
55  Tex.    110;  Texas   Mexican   Ry  v. 
Whitmore,  58  Id.   276;  Davis  ?;.  Cen- 
tral Vermont  R.  R. ,  55  Vt.  84,  45  Am. 
Rep.  590;  Brabbits«.  Chicago,  &c.  R. 
R.,  38  Wis.  289;  Naylor  v.  Chicago, 
&c.    Ry,    53    Id.     661;  Howland  v. 
Milwaukee,  &c.  Ry,  54  Id.  226:  Hoth 
«.   Peters,  55  Id.   405;   Whitnam  v. 
Wisconsin,  &c.    R.  R.,  58   Id.    408; 
Heine  v.    Chicago,  &c.  Ry,  Id.  525; 
Hough  V.  Railway  Co.,  100  U.  S.  213; 
Halverson  v.  Nisen,  3  Saw.  (U.  S.  C. 
C)  562;  Melville  v.   Missouri  River, 


494 


Chap.  I  v.]  LIABILITY    OF    PKINCIPAL    TO    AGENT.  §  668. 

or  default,  but  this  is  one  of  the  risks  incident  to  the  business, 
and,  by  accepting  the  employment,  the  servant  assumes  this  with 
the  others.* 

The  servant,  at  the  same  time,  has  a  right  to  rely  upon  the 
principal's  performance  of  his  duty  to  use  due  and  reasonable 
care  and  diligence  to  select  and  retain  none  but  competent  and 
careful  servants.  If,  therefore,  as  has  been  seen,  the  servant 
receives  injury  by  reason  of  the  employment  of  a  fellow-servant, 
who  was  employed,  or  who  has  been  retained,  in  violation  of  this 
duty  of  the  principal's,  the  principal  is  liable.* 

So,  too,  as  it  is  those  risks  only  which  are  incident  to  his 
employment,  which  the  servant  assumes,  he  does  not  assume  the 
responsibility  for  negligence  or  misconduct  of  other  servants 
engaged  in  another  and  different  employment.' 

§  668.  Same  Subject— Who  is  a  Fellow-Servant  P  The  ques- 
tion, who  is  a  fellow-servant  engaged  in  the  same  business,  with- 
in this  rule  is  one,  in  many  cases,  very  difficult  of  determination. 
It  is  well  settled,  however,  that  where  there  is  one  general  object, 
in  attaining  or  furthering  which  the  servant  is  engaged,  the  rule 
applies  although  he  and  the  servant,  through  whose  negligence 
he  was  injured,  were  not  engaged  in  doing  the  same  kind  of 
work.*     Nor  is  the  liability  of  the  master  enlarged  where  the 

&c.  R.  R.,  4  McCrary  (TJ.  S.  C.  0.)  Co.,  47  Mo.  567,  4  Am.  Rep.  353;  Illi- 

194;  Yager  v.  Atlantic,  «&c.  R.  R.,  4  nois  Cent.  R.  R.  v.  Jewell,  46  111.  99; 

Hughes  (U.  S.   C.  C.)  192;  Jordan©.  Wright  ».  New  York  Cent.  R.  R.  Co., 

"VVells,  3  Woods  (U.   S.   C.  C.)  527;  25  N.  Y.  565;  Snow  v.  Housatonic, 

Thompson    v.    Chicago,  &c.    Ry,  18  »&c.   R.  R.,    Co.,  8  Allen  (Mass.)  444; 

Fed.  Rep.  239,  Crew  v.  St.  Louis,  &c.  85  Am.  Dec.  720;  Noyes  v.  Smith,  28 

Ry,  20  Id.  87.  Vt.   63,  65  Am.  Dec.  232. 

1  Lovell  V.  Howell,  L.  R.  1  C.  P.  »  Pool  v.  Chicago,  &c.  Ry  Co.,  56 
Div.  167,  16  Eng.  Rep.  501,  where  Wis.  227;  Cumberland,  «&c.  R,  R.  Co. 
Archibald,  J.  states  the  rule:  v.  State,  44  Md.  283;  Green  v.  Banta, 
"  When  a  man  enters  into  the  ser-  48  N.  Y.  Super.  156;  Nashville,  &c. 
vices  of  a  master,  he  tacitly  agrees  to  R.  R.  Co.  v.  Jones,  9  Heisk.  (Tenn.) 
take  upon  himself  to  bear  all  ordinary  27;  Sheehan  v.  New  York,  «&c.  R.  R. 
risks  which  are  incident  to  his  em-  Co.,  91  N.  Y.  382;  Shanny  u  Andros- 
ployment,  and,  amongst  others,  the  coggin  Mills,  66  Me.  420. 
possibility  of  injury  happening  to  *  Laning  v.  New  York  Central  R. 
him  from  the  negligent  acts  of  his  R.  Co.,  49  N.  Y.,  521,  10  Am.  Rep. 
fellow-servanta  or  fellow- workmen."  417;  Blake  v.  Maine  Central  R.  R. 
See  generally  cases  cited  in  preceding  Co.,  70  Me.  60,  35  Am.  Rep.  297; 
note.  Charies  v.  Taylor,  L.  R.   8  C.   P.  D. 

2  Harper  e.  Indianapolis,  «&c.  R.  R.  492;    Lovell    v.    Howell,   1   Id.    161; 

495 


§  G6S. 


THE    LAW    OF    AGENCY. 


[Book  ly. 


servant  who  has  sustained  the  injury  is  of  a  grade  inferior  to  that 
of  the  servant  or  agent  whose  negligence,  carelessness  or  miscon- 
duct has  caused  the  injury,  if  the  services  of  each,  in  his  partic- 
ular labor,  are  directed  to  the  same  general  end/  Nor  does  it 
make  any  difference  that  the  servant  guilty  of  the  negligence  is 
a  servant  of  superior  authority,  whose  lawful  directions  the  ser- 
vant injured  was  bound  to  obey,'  unless  such  superior  servant 
arises  to  the  grade  of  the  alter  ego  of  the  principal.'     If  they 


16  Eng.  Rep.  (Moak)  501;  Tun- 
ney  v.  Midland  Ry.  Co.,  L.  R.  1 
C.  P.  296;  Seavere.  Boston,  &c.  R. 
R.  Co.,  14  Gray  (Mass.)  467;  Wonder 
V.  Baltimore  &  Ohio  R.  R.  Co.,  33 
Md.  411,  3  Am.  Rep.  143. 

'■  Laning  v.  New  York  Central  R. 
R.  Co.,  49  N.  Y.  521,  10  Am.  Rep. 
417;  Lawler  9.  Androscoggin  R.  R. 
Co.,  62  Me.  463,  16  Am.  Rep.  492: 
Felthamt).  England,  L.  R.  2  Q.  B. 
33;  Brown  v.  Winona,  &c.  R.  R.  Co., 
27  Minn.  162,  38  Am.  Rep.  285; 
Thayer  e.  St,  Louis,  «fec.  R.  R.  Co., 
23  Ind.  26;  Columbus,  &c.  R.  R.  Co. 
V.  Arnold,  81  Ind.  174;  Peterson  «. 
Whitebreast,  50  Iowa,  673;  Shauck 
e.  Northern,  &c.  R  R.  Co.,  25  Md. 
462;  Albro  ».  Agawam  Canal  Co.,  6 
Cush.  (Mass.)  75;  Hurd  e.  Vermont, 
&c.  R.  R.  Co.,  32  Vt.  473;  Pittsburg. 
&c.  Ry  Co.  e.  Lewis,  83  Ohio  St. 
196;  Warner  «.  Erie  Ry  Co.,  39  N. 

Y.  468;  Sherman®.  Rochester,  &c.  R. 

R.  Co.,  17  N.  Y.  153;  Wood  v.  New 

Bedford   Coal  Co.,   121   Mass.    252; 

Malone  «.  Hathaway,  64  N.  Y.  5,  21 

Am.  Rep.  573;  Pittsburg,  &c.  R.  R. 

Co.  r.  Devinney,  17  Ohio  St.  197;  St. 

Louis,  &c.  R  R.  Co.  v.  Britz,  73  111. 

256. 

*  Laning  «.  New  York  Central  R 

R.  Co.,  49  N.  Y.  531,  10  Am.  Rep. 

417;  Lawler  v.  Androscoggin  R  R. 

Co.,  63  Me.  463,  16  Am.   Rep.   492; 

Blake  v.  Maine  Central  R.  R.  Co.,  70 

Me.  60,  35  Am.  Rep.  297;  Brown  ». 

Winona,  &c.  R.  R.  Co.,  27  Minn.  162, 

38  Am.  Rep.  285;  Beaulieu  v.  Port- 


land Co.,  48  Me.  295;  Gillshannon  v. 
Stony  Brook  R.  R.  Co.,  10  Cush. 
(Mass.)  228;  Ilurd  v.  Vermont  Central 
R.  R.  Co.,  32  Vt.  473;  Collier  v. 
Steinhart,  51  Cal.  116;  McLean  v. 
Mining  Co.,  Id.  255;  McDonald  t». 
Manufacturing  Co.,  67  Ga.  761;  Ken- 
ney  «.  Shaw,  133  Mass.  501;  O'Con- 
nor V.  Roberts,  120  Mass.  227;  Floyd 
t>.  Sugden,  134  ISIass.  563;  Marshall 
V.  Schricker,  63  Mo.  308;  Keystone 
Bridge  Co.  v.  Newberry,  98  Perm. 
St.  246,  43  Am.  Rep.  543;  Hoth  «. 
Peters,  55  Wis.  405;  Dwyer  v.  Amer- 
ican Express  Co.,  Id.  453;  Malone  v. 
Hathaway,  64  N.  Y.  5.  21  Am.  Rep. 
573;  Reese  o.  Biddle,  112  Penn,  St 
72;  Conley  v.  Portland,  78  Me.  217; 
Qonsior  v.  Minneapolis,  &c.  Ry  Co., 
36  Minn.  385,  31  N.  W.  Rep.  515. 

»  Ryan  «.  Bagaley,  50  Mich.  179,  45 
Am.  Rep.  35;  Chicago,  &c,  Ry  Co. 
t.  Bayfield,   37  Mich.   205;  Railroad 
Co.  V.  Fort,   17  Wall.    (U.    S.)  553; 
Wilson  V.  Willimantic  Co.,  50  Conn 
433,  47  Am.    Rep.    653;    Mitchell  v 
Robinson,  80  Ind.  281,  41  Am.  Rep. 
812;  Dowling  v.  Allen,  74  Mo.  13,  41 
Am.    Rep.    298;    Beeson    v.    Green 
Mountain  Min.  Co.,  57  Cal.  20;  Chi- 
cago, (fee.  R.  R.  Co.  V.  May,  103  111. 
288;  Gormlyt),  Vulcan  Iron  Works, 
61  Mo.   492:  Corcoran  v.   Holbrook, 
59  N.  Y.  517,  17  Am.  Rep.  369;  Berea 
Stone  Co.  v.  Kraft,  31  Ohio  St.  2S7, 
27  Am.  Rep.  510;  Brothers  v.  Carlter, 
52  Mo.  373,  14  Am.  Rep.  424;  Mul- 
lan  V.   Philadelphia   Steamship  Co. 
78  Penn.  25,  21  Am.   Rep.  2;  Tyson 


496 


Chap.  lY.]  LIABILITY    OF   PRINCIPAL   TO    AGENT.  §  669. 

are  in  the  einployraent  of  the  same  master,  engaged  in  the  same 
general  business  and  performing  duties  and  services  for  the  same 
general  purposes,  they  are  fellow-servants  within  the  meaning  of 
this  rule,  and  the  master  is  not  liable.*  It  is  immaterial,  also, 
that  the  service  was  an  occasional  or  job  service.  It  is  the  qual- 
ity, and  not  the  length  of  time,  or  extent  of  the  work,  which 
fixes,  in  this  respect,  the  character  of  the  servant  and  the  service. 
The  servant  may  be  engaged  by  the  day,  week  or  year,  or  by 
piece-work,  yet  if  his  employment  is  in  the  way  of  accomplisli- 
ing  a  result  which  the  other  employees  are  also  working  to  bring 
about,  their  service  is  common.* 

§  669.  VolTinteer  assisting  Servant  can  not  recover.  It  is  well 
settled  that  a  person  who,  without  any  employment  and  without 
any  interest  in  the  performance  or  result  of  the  service,  volun- 
tarily undertakes  to  perform  service  for  another,  or  to  assist  the 
servants  of  another  in  the  service  of  their  master,  either  at  the 
request  or  without  the  request  of  such  servants,  who  have  no  au- 
thority to  employ  other  servants,  stands  in  the  relation,  for  the 
time  beinff,  of  a  fellow-servant  with  those  whom  he  undertakes 
to  assist  and  is  to  be  regarded  as  assuming  all  the  risks  incident 
to  the  business.  If  he  is  injured  by  the  negligence  of  such  ser- 
vants, he  has,  therefore,  no  recourse  to  the  principal.* 

But  the  rule  is  otherwise  where  the  person  injured,  is  not  a 
mere  volunteer,  but  assists  for  the  purpose  of  aiding  or  advanc- 

«.  North,  &c.  R.  R.  Co.,  61  Ala.  554,  «  Ewan  v.  Lippincott,  47  N.  J.  L. 

82  Am.  Rep.   8;  Gunter  v.    Granite-  192,  54  Am.  Rep.  148. 

ville  Mfg.  Co.,  18  S.  C.  262,  44  Am.  '  Flower  v.  Pennsylvania R.  R.  Co., 

Rep.  573;  Mulcairns  t).  Janesville,  67  69  Penn,  St.  210,  8  Am.    Rep.   251; 

Wis.  24;  Brown  v.  Bennett,  68  Cal.  New  Orleans,  &c.  R.  R.  Co.  v.  Har- 

225.  riaon,  48  Miss.  112,  12  Am.  Rep.  356; 

>  Laning  v.  New  York  Central  R.  Osborne  v.  Knox  «fc  Lincoln  R.  R. ,  68 

R.  Co.,  49  N.  Y.  521,  10  Am.  Rep.  Me.  49,  28  Am.  Rep.  16;  May  ton  v. 

417;  Lawler  v.   Androscoggin  R.  R.  Texas  &  Pacific  R.  R.  Co.,  63  Tex. 

Co.,  62  Me.  463,    16   Am.   Rep.  492;  77,  51  Am.  Rep.  637;  Street  Railway 

Blake®.  Maine  Central  R.  R.  Co.,  70  Co.  v.  Bolton,  43  Ohio  St.   224,    54 

Me.  60,  35  Am.  Rep.  297;  Cooley  on  Am.  Rep.  803;  Eason  v.  S.  &  E.T,  Ry 

Torts,  543;  Fisk  v.  Central  Pac.   R.  Co.,  65  Tex.  577,  57  Am.   Rep.  606; 

R.  Co.,  72  Cal.  88,  1  Am.  St.  Rep.  22.  Degg  y.  Midland  Ry  Co.,  1  H.  &  N. 

Appended  to  this  case  will  be  found  773;  Potteri>.  Faulkner,  1  Best  &  S. 

a   valuable    collection   of    the  cases  800. 

upon  the  question  of  who  are  fellow-  But  see  Cleveland  v.  Spier,  16  C.  B. 

servants.  (N.  S.)  398;  Althorf  v,  Wolfe,  22  N. 

Y.  355. 

32  497 


§  670.  THE    LAW    OF    AGENCY.  [Book    IV. 

ing  his  own,  or  his  own  master's  business.  Though  performing  a 
service  which  may  be  beneficial  to  both  parties,  he  is  doing  so  in 
his  own  behalf,  or  in  the  behalf  of  his  own  master,  and  not  as 
servant  of  the  master  whose  servants  he  assists.  Their  request 
or  acquiescence  gives  him  the  right  to  assist,  but  the  fact  that  he 
does  so  in  his  own  behalf,  or  in  behalf  of  his  own  master,  however 
beneficial  may  be  his  assistance  to  the  master  of  the  other  servants, 
gives  him  the  right  to  be  protected  against  their  negligence.* 
The  act  done  by  him,  should,  however,  be  a  prudent  and  reason- 
able one,  tnd  not  a  wrongful  interference  and  intermeddling  with 
business  in  which  he  had  no  concern." 

§  670.  Contributory  Negligence  of  Servant  defeats  his  Re- 
covery. The  same  rules  which  govern  the  question  of  contribu- 
tory negligence  in  other  cases  apply  here.  A  servant  has  no 
cause  of  action  against  his  master  for  an  injury  resulting  from 
the  negligence  of  the  master,  if  the  servant's  own  negligence 
contributed  to  cause  the  injury.*  And  where  a  servant  knows 
as  fully  as  the  master  of  the  existence  of  that  which  is  at  last  the 
producing  cause  of  the  injury,  and,  except  apon  the  master's 
promise  to  amend  the  defect,  continues  voluntarily  and  of  his 
own  accord  in  the  master's  employ,  exposed  to  the  effects  when 
they  shall  come,  his  so  remaining  in  the  service  may  be  such  con- 
tributory negligence  as  to  defeat  a  recovery.*  But  where  the 
continuance  in  the  service,  or  the  undertaking  of  the  dangerous 

»  Street  Railway  Co.  v.  Bolton,  43  97  Penn.  St.  103;  Wormell  «.  Maine 

Ohio  St.  224,54  Am.  Rep.  803;  Eason  Cent.  R.  R.  Co.,  79  Me.   397,  1  Am. 

V.  S.  &  E.  T.  Ry  Co.,  mj/ra;  Wright  St.  Rep.  321. 

V.  London,  &c.  Ry  Co.,  1  Q.  B.  Div.  *  East  Tennessee,  &c.  R.  R.  Co.  t. 

253;   Holmes  v.   North  Eastern    Ry  Duffleld,  12  Lea  (Tenn.)  63,  47  Am. 

Co.,  L.  R.  4  Ex.  254.  Rep.  319;  McGlynn  v.  Brodie,  31  Cal. 

«  Street  Railway  Co.  v.  Bolton,  43  376;  Sowden  b.  Idaho  Quartz  Mining 

Ohio  St.  234,  54  Am.  Rep.  803.  Co.,  55  Cal,  443;  Hayden  v.    Smith 

»  Buzzell  V.  Laconia  Mnfg.  Co.,  48  ville,  «fec.  Co.,  29  Conn.  548;  Bell  v. 

Me.  113,  77  Am.  Dec.  212;  Campbell®.  Western,  &c.  R.  R.  Co.,  70  Ga.  560; 

Atlanta,  &c.  R.  R.  Co.,  53  Ga.   488;  Sullivan  v.  Louisville  Bridge  Co.,  9 

Cunningham  «.  Railway  Co.,  17  Fed.  Bush.    (Ky.)  81;   Camp   Point   Mfg. 

Rep.  882;   Honor  v.   Albrighton,  93  Co.  v.  Ballou,  71   111,   417;  Chicago, 

Penn.  St.  475;  Muldowney  v.  Illinois  &c.  R.  R.  Co.  v.  Clark,  11  111.   App. 

Central    R.   R.   Co.,   89  Iowa,   615;  104;  Umback  v.  Lake  Shore,  &c.  Ry 

State©.  Malster,  57  Md.  287;  Vicks-  Co.,  83  Ind.  191;  Kroy  v.   Chicago, 

burg,  &c.  R.  R.   Co.  v.   Wilkins,  47  «fcc.  R.  R.  Co..   32  Iowa,   357;  Mul- 

Miss.  404,  Baker  t).   Hughes,   2  Col.  downey  b.  Illinois  Cent.    R.    R.  Co., 

79;  Green,   &c.  Ry  Co.  v.   Bresmer,  39  Iowa,  615;  Snow  ».  Housatonic  R. 

498 


Cliap.  IV.]  LIABILITY    OF    PRINCIPAL   TO    AGENT.  §  670. 

task,  cannot  be  regarded  as  purely  voluntary,  a  more  serious  ques- 
tion arises.  Ordinarily  it  may  be  presumed  that  the  master 
knows  better  than  the  servant  the  dangers  of  the  employment. 
There  is,  too,  as  has  been  seen,  a  presumption  that  the  master's 
orders  are  proper  and  lawful,  and  the  servant  who  disobeys  them 
must  take  upon  himself  the  burden  of  showing  that  they  were 
otherwise.* 

It  is  to  be  expected  therefore  that  great  weight  will  be  given 
by  the  servant  to  his  master's  orders  which  he  has  undertaken  to 
obey,  and  where  the  service  is  continued,  or  the  task  undertaken, 
by  the  express  order  or  command  of  the  master  or  those  who 
represent  him,  this  fact  must  be  taken  into  consideration  in  de- 
termining the  question  of  the  servant's  contributory  negligence. 
The  command  of  the  master  would  not  justify  the  servant  in 
going  into  plain,  undoubted  and  imminent  danger,  such  as  no 
man  of  ordinary  prudence  would  encounter.  But  in  determin- 
ing this  question,  too,  regard  must  be  had  to  the  exigencies  of  the 
case.  A  prudent  man  even  will  run  more  risks  in  times  of  haz- 
ard or  threatened  disaster,  than  at  other  times  when  there  is  no 
pressing  need.  And  so  under  such  circumstances  men  cannot  be 
expected  to  weigh  the  chances  with  nice  precision.  Each  case 
is  left  to  be  judged  by  its  own  circumstances  and  surroundings. 
The  rule  of  contributory  negligence  is,  therefore,  to  be  modified  in 
this  regard,  that  if  the  servant  incur  risk  by  the  express  command 
of  the  master  or  his  agent,  and  the  danger  was  not  so  inevitable  or 
imminent  that  a  man  of  ordinary  prudence  would  not,  under  the 
circumstances,  have  incurred  it,  the  servant  is  not  to  be  deemed 
guilty  of  contributory  negligence.' 

This  question  is  for  the  jury  to  determine,  and  the  extent  of 

B.  Co.,  8  Allen  (Mass.)  441;  Huddles-  field  Coal  &  Coke  Co.  v.  McEnery, 

ton  V.    Lowell    Machine   Shop,    106  91  Penn.  St.  185,  36  Am.  Rep.  683.      . 
Mass.  282;  Pingree  v.   Leyland,  135  '  See  ante,  %  663. 

Mass.    393;    Swoboda   v.    Ward,   40  2  East  Tennessee,  &c.  R.  R.  Co.  e. 

Mich.   420;   Richards  «.   Rough,   53  Duffleld,  12  Lea  (Tenn.)  63,  47  Am. 

Mich.  212;  Porter  v.  Hannibal,  &c.  Rep.  319;  Guthrie  v,  Louisvill«,  &c. 

R.  R.  Co.,  71  Mo.  66;  Behm  v.  Ar-  R.  R.  Co.,  11  Lea  (Tenn.)  873,  47  Am. 

mour,  58  Wis.  1;  Qreeuleaf®.  Illinois  Rep.   283;  Chicago,   &c.   Ry   Co.  v. 

Cent.  R.  R.  Co.,  29  Iowa  14,  4  Am.  Bayfield,  37  Mich.   205;  Frandsen  v. 

Rep.   181;  Ladd  v.  New  Bedford  R.  Chicago,  &c.  R.  R.  Co.,  36  Iowa  373; 

R.  Co.,  119  Mass.  412,  20  Am.  Rep.  Patterson  v.  Pittsburg,  &c.  R.  R.  Co., 

331;  Kelley  v.  Silver  Spring  Co.,  13  76  Penn.  St.  389,  18  Am.  Rep.  412. 
R.  L  112,  34  Am.  Rep.    615;   Mans- 

499 


§  671.  THE    LAW    OF    AGENCY.  [Book  IV. 

the  danger,  the  fact  that  it  was  incurred  under  the  direct  order 
of  the  master  or  his  agent,  and  the  exigency  of  the  occasion,  are 
essential  elements  to  be  taken  into  consideration.' 

§  671.  Agreements  to  waive  Liability  invalid.  It  is  fre- 
quently attempted  by  employers  to  obtain  from  their  employees 
at  the  time  of  entering  upon  the  service  and  in  consideration  of 
it,  a  waiver  of  the  liability  of  the  master  for  injuries  that  may 
happen  through  the  negligence  of  the  master  or  of  other  ser- 
vants. Such  waivers,  however,  are  quite  generally  held  to  be 
opposed  to  public  policy  and  void,'  though  they  have  been  sus- 
tained in  England  *  and  in  Georgia.* 

V. 

agent's  right  to  a  lien. 

§  672.  In  general.  Having  ascertained  the  rights  of  the 
agent  to  commissions,  reimbursement  and  indemnity,  it  becomes 
material  to  determine  the  means  by  which  those  rights  may  be 
enforced.  The  most  important  of  these  is  the  agent's  right 
of  lien. 

Liens  of  various  sorts,  in  recent  times,  are  provided  and  regu- 
lated by  statute,  but  it  is  not  the  intention  hereto  determine  how 
far  the  statutes  have  protected  agents.  So  liens  or  charges  may 
be  created  by  the  express  contract  of  the  parties,  but  these,  also, 
are  not  now  to  be  considered.  The  lien  to  be  here  considered  is 
that  which  exists  by  the  common  law,  as  distinguished  from 
statutory  liens  and  those  created  by  express  contract. 

§  673.     Lieii  defined— General  and  particular  Liens.      A  lien 

•  Patterson  «.  Pittsburg,  &c.  R.  R.  Co.  v.  Spangle,  44  Ohio  St.  471,  58 

Co.,   supra;    Laaing   v.   New  York  Am.  Rep.  833;  Roesner  b.  Hermann, 

Cent.  R.  R.    Co.,   49  N.    Y.   531,  10  10  Biss.  (U.  S.  C.  C.)  486,  8  Fed.  Rep. 

Am.  Rep.  417;  Greene  v.  Miun.  «fe  St.  782;  Little  Rock  &  Ft.  Smith  Ry  Co. 

L.  R.  R.  Co  ,  31  Minn.  348,  47  Am.  v.  Eubanks,  —Ark.  — ,  3  S.  W.  Rep. 

Rep.   785;  Missouri  Furnace  Co.  v.  808. 

Abend,  107  111.  44,  47  Am.  Rep.  435;         »  Griffiths  v.  Earl  of  Dudley,   9  Q. 

Manufacturing  Co.  v.    Morrissey,  40  B.  Div.  357. 
Ohio  St.  148,  48  Am.  Rep.  669.  *  Western,  &c.  R.  R.  Co.  v.  Bishop, 

«  Kansas  Pac.  Ry  Co.  v.  Peavey,  29  50  Qa.  465;  Western,  &c.  R.  R    Co. 

Kan*.  169,  44  Am.  Rep.  630,  11  Am.  v.   Strong,  53  (Ja.   461;  Galloway  «. 

&  Eng.   R.   R.    Cases.   360;  Railway  Western,  &c,  R.  R.  Co.,  67  Ga.  512. 

500 


Chap.  IV.]  LIABILITY    OF   PRINCIPAL   TO    AGENT. 


673. 


at  common  law  has  been  defined  to  be  the  right  of  detaining  the 
property  on  which  it  operates  until  the  claims  which  are  the 
basis  of  the  lien  are  satisfied.*  It  has  also  been  defined  as  an 
obligation  which,  by  implication  of  law  and  not  by  express  con- 
tract, binds  real  or  personal  estate  for  the  discharge  of  a  debt  or 
engagement,  but  does  not  pass  the  property  in  the  subject  of  the 
lien.' 

The  main  distinction  between  common  law  liens  and  other 
liens  is  that  possession  is  essential  to  the  former  class  and  not 
always  to  the  latter.' 

Liens  are  either  general  or  particular.  A  general  lien  is  a 
right  to  retain  the  property  of  another  to  cover  and  secure  a 
general  balance  due  from  the  owner  to  the  person  who  has  pos- 
session.* A  particular  or  specific  lien  is  a  right  to  retain  par- 
ticular property  of  another  for  charges  incurred,  or  trouble 
undergone,  with  respect  to  that  property.' 

The  former  being  regarded  as  an  encroachment  on  the  common 
law,  is  not  favored  by  courts  of  law  or  equity,  and  will  be  strictly 


'  Ames  V.  Palmer,  43  Me.  197,  66 
A.m.  Dec.  271;  Oakes  v.  Moore,  24 
Me.  214,  41  Am.  Dec.  379;  Ham- 
monds V.  Barclay,  2  Eaat  235:  "  The 
word  lien,  in  common  parlance,  is 
somewhat  indiscriminately  used,  as 
if  it  embraced  every  species  of  spec- 
ial property  which  one  may  have  in 
goods,  the  general  ownership  of 
which  is  in  another.  It  originally, 
and  more  appropriately,  was  used  to 
signify  the  right  which  artisans  and 
others,  who  had  bestowed  labor  upon 
an  article,  or  done  some  act  in  refer- 
ence to  it,  had,  in  some  instances,  of 
a  detention  thereof  till  reimbursed 
for  their  expenditures  and  labor  be- 
stowed thereon.  Such  maybe  termed 
a  lien  at  common  law."  Whitman, 
C.  J. ,  in  Oakes  v.  Moore,  supra. 

«  Fisher  on  Mortgages,  §  149.  Ev- 
ans on  Agency,  362. 

•"The  common  law  recognized 
the  right  of  innkeepers,  carriers  and 
certain  artisans  and  mechanics  to 
hold  a  lien  upon  property  delivered  to 


them  for  their  charges.  Innkeepers 
and  carriers  had  such  a  lien  upon  the 
theory  that  they  were  bound  to  serve 
all  persons  who  required  their  ser- 
vices; and  artisans  upon  the  theory 
that  by  their  labor  and  skill,  the 
specific  property  bailed  to  them  had 
been  increased  in  value.  In  both 
cases  to  make  the  lien  operative,  it 
is  necessary  that  the  lien  holder  keep 
the  actual  possession  of  the  property 
to  which  the  lien  attaches.  Statutory 
liens  are  analogous  to  the  latter  class 
of  common  law  liens  named  above, 
but,  unlike  them,  no  possession  of 
the  property  is  required.  The  pro- 
tection afforded  at  common  law  by 
possession,  is,  in  the  case  of  statutory 
liens,  accomplished  through  an  at- 
tachment of  the  property."  Quimby 
V.  Hazen,  54  Vt.  132. 

*  Mclntyre  v.  Carver,  2  Watts  & 
Serg.  (Penn.)  392,  37  Am.  Dec.  519 
and  note.     Evans  on  Agency,  363. 


501 


§674. 


THE   LAW    OF    AGENCY. 


[Book  IV. 


construed.  It  can,  in  the  absence  of  an  express  contract,  be 
claimed  only  as  arising  from  dealings  in  a  particular  trade  or  line 
of  business  in  which  the  existence  of  a  general  lien  has  been 
judicially  proved  and  acknowledged,  or  upon  express  evidence 
being  given  that,  according  to  the  established  custom,  a  general 
lien  is  claimed  and  allowed.'  Particular  liens  on  the  other  hand 
are  favored.* 

§  674.  Foundation  of  the  Claim  of  Lien.  The  common  law 
lien  found  its  origin  in  principles  of  natural  equity  and  commer- 
cial necessity.  Its  earliest  form  was  the  particular  or  specific 
lien,  and  it  was  first  applied  for. the  protection  of  those  who  were 
required  by  law  to  render  services  or  to  receive  goods  for  all  who 
sought  their  aid,  as  in  the  case  of  common  carriers  and  innkeep- 
ers.' Manifest  justice  required  that  those  who  were  thus  obliged 
to  serve  should  have  some  compulsory  means  of  obtaining  com- 
pensation. A  lien  was  also  allowed  to  those  who  had,  by  their 
own  peril,  labor  and  expense,  rescued,  from  loss  or  destruction  at 


'  Mclntyre  v.  Carver,  supra;  Rush- 
forth  t>.  Hadfield,  7  East  229;  Bevan 
«.  Waters,  3  C.  &  P.  520;  Scarf  e  v. 
Morgan,  4  M.  &  W.  283;  Houghton 
t.  Matthews,  3  Bos.  &  Pul.  494;  Blea- 
den  V.  Hancock,  4  Car.  &  P.  156. 

•  Scarf e  «.  Morgan,  supra;  Bevan 
«.  Waters,  supra;  Mclntyre  «.  Car- 
ver, supra.  "  It  is  not  to  be  doubted," 
said  Gibson,  C.  J.,  "that  the  law  of 
particular  or  specific  lien  on  goods  in 
the  hands  of  a  tradesman  or  artisan 
for  the  price  of  work  done  on  them, 
though  there  is  no  trace  of  its  recog- 
nition in  our  own  books,  was  brought 
hither  by  our  ancestors;  and  that  it 
is  a  part  of  our  common  law.  It  was 
as  proper  for  their  condition  and  cir- 
cumstances here  as  it  had  been  in  the 
parent  land;  and  though  a  general 
lien  for  an  entire  balance  of  accounts 
was  said  by  Lord  Ellenborouoh,  in 
Kushforth  v.  Hadfield,  7  East  229,  to 
bo  an  encroachment  on  the  common 
law,  yet  it  has  never  been  intimated 
that  a  particular  lien  on  specific  chat- 
tels, for  the  price  of  labor  bestowed 


on  them,  does  not  grow  necessarily 
and  naturally  out  of  the  transactions 
of  mankind  as  a  matter  of  public 
policy."  Mclntyre  t>.  Carver,  2  Watts 
ifcSerg.  (Penn.)392. 

•Naylor  v.  Mangles,  1  Esp.  109; 
Carlisle  v.  Quattlebaum,  2  Bailey  (S. 
C.)  452;  Quimbyc.  Hazen,  54  Vt.  132. 

"The  innkeeper  is  bound  to  re- 
ceive and  entertain  travellers,  and  is 
answerable  for  the  goods  of  the  guest 
although  they  may  be  stolen  or  other- 
wise lost  without  any  fault  on  his 
part.  Like  a  common  carrier,  he  is 
an  insurer  of  the  property,  and  noth- 
ing but  the  act  of  God  or  public 
enemies  will  excuse  a  loss.  On  ac- 
count of  this  extraordinary  liability 
the  law  gives  the  innkeeper  a  lien  on 
the  goods  of  the  guest  for  the  satis- 
faction of  his  reasonable  charges.  It 
was  once  held  that  he  might  d>;tain 
the  person  of  a  guest,  but  that  doc- 
trine is  now  exploded  and  the  lien  is 
confined  to  the  goods."  Bronson, 
J.,  in  Grinnell  v.  Cook,  3  Hill  (N.Y.) 
485,  38  Am.  Dec.  663. 


502 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL   TO    AGENT. 


§674. 


sea,  the  goods  or  property  of  anotlier  who  was  unable  to  protect 
them.  Here,  too,  obvious  equity,  as  well  as  commercial  neces- 
sity, demanded  that  if  the  owner  would  reclaim  his  goods  he 
should  first  pay  the  reasonable  charges  of  him  by  whose  exer- 
tions they  had  been  preserved.^ 

It  was,  however,  soon  extended  to  the  case  of  those  who, 
while  not  required  by  law  to  render  service,  yet  by  their  skill  or 
labor  had  imparted  additional  value  to  the  goods  or  property  of 
another.*  That  these  persons,  also,  should  have  a  lien  upon  the 
goods  or  property  for  the  reasonable  value  of  their  services  was 
obviously  just  and  so  plainly  conducive  to  confidence  and  secur- 
ity in  the  transaction  of  affairs,  that  this  principle  has  become 
firmly  established  in  onr  law,  and  has  in  modern  times  been 
extended  by  statutory  enactments  to  a  great  variety  of  cases  not 
contemplated  by  the  common  law. 


» Fitch  V.  Newberry,  1  Doug. 
(Mich.)  1,  40  Am.  Dec.  33.  While 
the  right  of  lien  as  finder  or  preserver 
extends  only  to  those  goods  which  are 
lost  at  sea,  yet  if  the  owner  of  goods 
lost  on  land  offers  a  reward  to  him 
who  will  restore  the  property,  a  lien 
thereon  is  thereby  created  to  the  ex- 
tent of  the  reward  so  offered.  Wood 
V.  Pierson,  45  Mich.  813;  Preston  v. 
Neale,  13  Gray  (Mass.)  323;  Cum- 
mings  V.  Gann,  53  Penn.  St.  484; 
Wentworth  v.  Day,  3  Mete.  (Mass.) 
353,  37  Am.  Dec.  145. 

«  "The  right  of  lien  has  always 
been  admitted  where  the  party  was 
bound  by  law  to  receive  the  goods; 
and  in  modern  times  the  right  has 
been  extended  so  far  that  it  may  be 
laid  down  as  a  general  rule,  that  every 
bailee  for  hire,  who  by  his  labor  and 
skill  has  imparted  an  additional  value 
to  the  goods,  has  a  lien  upon  the  pro- 
perty for  his  reasonable  charges.  This 
includes  all  such  mechanics,  trades- 
men, and  laborers  as  receive  property 
for  the  purpose  of  repairing  or  other- 
wise improving  its  condition."  Bron- 
80N,  J.,  in  Grinnell  v.  Cook,  3  Hill 
(N.  Y.)  485,  38  Am.   Dec.    663.     To 


same  effect  are  Morgan  v.  Congdon, 
4  N.  Y.  551 ;  Nevan  v.  Roup,  8  Iowa 
307;  Wilson  v.  Martin,  40  K  H.  88; 
Moore  v.  Hitchcock,  4  Wend.  (N.  Y.) 
393;  Gregory  v.  Stryker,  3  Den.  N.  Y. 
638. 

But  except  where  there  is  an  obli- 
gation by  law  to  take  and  care  for 
property,  no  lien  for  simply  keeping 
and  caring  for  it  exists  at  common 
law,  upon  the  ground  that  the  bailee 
has  added  no  value  to  the  property. 
Thus  agisters  and  livery  stable  keep- 
ers have  no  lien  for  keeping  animals 
in  the  absence  of  a  statute  or  an  ex- 
press contract  to  that  effect.  Grin- 
nell V.  Cook,  supra;  Lewis  v.  Tyler, 
33  Cal.  364;  Goodrich  v.  Willard,  7 
Gray  (Mass.)  183;  Wills  t).  Barrister, 
36  Vt.  330;  Wallace  v.  Woodgate,  1 
Car.  &  P.  575;  Bevan  «.  Waters,  3 
Car.  &  P.  530;  Judson  v.  Etheridge, 
1  Cromp.  &  M.  743;  Jackson  v.  Cum- 
mins 5  Mees.  &  Wels.  343;  Miller  v. 
Marston,  35  Me.  153,  56  Am.  Dec. 
694;  McDonald  v.  Bennett,  45  la. 
456;  Allen  v.  Ham,  63  Me.  533;  Mau- 
ney  ».  Ingram,  78  N.  C.  96. 

But  on  the  ground  of  increased  val- 
ue, the  horse  trainer  has  a  lien.    Har- 


503 


§675. 


THE    LAW    OF   AGENCY. 


[Book  IV. 


§  675.  Nature  of  Lien.  This  lien  conferred  by  the  common 
law  does  not  create  an  estate  or  title  in  the  property  over  which 
it  prevails.  It  is  a  simple  right  of  retainer  merely,  and  is  neither 
a  jus  ad  rem  nor  a  jus  in  re. 

It  is  purely  personal  to  the  lien  holder,  and  is  neither  assign- 
able by  him,  nor  can  it  be  attached  as  personal  property  or  as  a 
chose  in  action  of  the  person  who  is  entitled  to  it.'  Being  thus 
a  personal  privilege,  no  person  but  the  lien  holder  can  avail  him- 
self of  it.  It  cannot  be  set  up  by  a  third  person  as  a  defense  to 
an  action  brought  by  the  owner  of  the  goods.* 

§  676.  Requisites  of  Lien— Possession.  The  common  law 
lien  being  thus  a  mere  right  of  retainer,  it  follows  that  the 
exclusive  possession  of  the  property  by  the  person  claiming  the 
lien,  is  indispensable  to  its  existence  and  continuance.'  If  the 
person  holds  the  property  in  subordination  to  the  will  and  con- 
trol of  another,  no  right  of  retainer  attaches.  No  lien  exists, 
therefore,  in  favor  of  the  mere  workman  or  servant  of  the  con- 
tractor.*    But  the  possession  of  such  a  workman  or  servant  is  the 


ris  B.  Woodruff,  124  Mass.  205 ;  Bevau 
e.  Waters,  supra',  Towle  «.  Raymond, 
58  N.  H.  64;  so  has  the  horse  doctor; 
Lord  v.  Jones,  24  Me.  439.  41  Am. 
Dec.  391;  so  has  the  owner  of  a  stal- 
lion for  the  services  of  the  stallion, 
Scarfe  v.  Morgan,  4  Mees.  &  Wels. 
270;  Sawyer  v.  Gerrish,  70  Me.  254. 

'  Meany  v.  Head,  1  Mason,  (U.  S. 
C.  C.)  319,  Story  J.;  Lovett  v. 
Brown,  40  N.  H.  511;  Holly  v.  Hugg- 
eford,  8  Pick.  (Mass.)  73,  19  Am. 
Dec.  303;  Jones  «.  Sinclair,  2  N.  H. 
321,  9  Am.  Dec.  75;  Daubigny  v.  Du- 
val, 5  T.  R..     (Durnf.  &  E.)  606. 

s  Trespass  or  trover  by  the  owner 
of  goods  consigned  to  a  factor  who 
has  a  lien  thereon  for  a  balance  due 
him  from  the  owner,  can  be  main- 
tained against  an  officer  who  attaches 
the  goods  as  the  property  of  the  fac- 
tor, and  the  lien  of  the  factor  being  a 
privilege  personal  to  him,  cannot  be 
set  up  by  the  officer  to  defeat  the  ac- 


tion. Holly  "«.  Huggeford,  supra; 
Jones  v.  Sinclair,  supra. 

>  Mclntyre  v.  Carver,  2  Watts  & 
Serg.  (Penn,)392,  37  Am.  Dec.  519; 
Tucker  v.  Taylor,  53  Ind.  93;  Nevan 
V.  Roup,  8  Iowa  207;  Oakes  v.  Moore, 
24  Me.  214,  41  Am.  Dec.  379;  E» 
parte  Foster,  2  Story  (U.  S.  C.  C.)  144; 
McFarland  v.  Wheeler,  26  Wend.  (N. 
Y.)  467;  Collins  v.  Buck,  63  Me.  459; 
Robinson  v.  Larrabee,  63  Me.  116; 
Rice  V.  Austin,  17  Mass.  197;  Winter 
V.  Colt,  7  N.  Y.  288;  Heard  ».  Brewer, 
4  Daly  (N.  Y.)  136;  Sawyer  v.  Loril- 
lard,  48  Ala,  333;  Elliott  «.  Bradley, 
23  Vt.  217;  Donald  e.  Hewitt,  33 
Ala.  534,  73  Am.  Dec.  431;  Miller  v. 
Marston,  35  Me.  153,  56  Am.  Dec. 
694;  Jenkins  v.  Eichelberger,  4  Watts 
(Penn.)  121,  28  Am.  Dec.  691. 

♦  Hollingsworth  v.  Dow,  19  Pick. 
(Mass.)  228; Mclntyre  u. Carver,  supra; 
Wright  V.  Terry,  —  Fla.  — ,  2  South. 
Rep.  6. 


504 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL    TO    AGENT. 


§677. 


possession  of  the  employer  or  master,  and  is  sufficient  to  maintain 
the  latter's  right  of  lien.* 

^  677.  Possession  must  have  been  lawfully  acqviired.  In 
order  to  sustain  the  lien,  the  possession  of  the  property  must  have 
been  obtained  in  good  faith,  and  from  one  having  the  power  and 
the  right  to  confer  it.  A  person  can  neither  acquire  a  lien  by 
his  own  wrongful  act,  nor  can  he  retain  one  when  he  obtains 
possession  of  the  property  without  the  consent  of  the  owner 
express  or  implied.* 

If,  therefore,  the  person  claiming  a  lien  acquired  possession  by 
misrepresentation  or  fraud,  or  from  an  agent  or  servant  or  other 
person  having  no  right  or  power  to  confer  it,'  he  cannot  main- 


>  Heard  v.  Brewer,  supra;  Elliott  v. 
Bradley,  supra. 

«  Fitch  V.  Newberry,  1  Doug. (Mich.) 
1,  40  Am.  Dec.  33;  Madden  v.  Kemp- 
ster,  1  Camp  13;  Burn  v.  Brown,  2 
Stark  N.  P.  273. 

"  To  create  a  lien  on  a  chattel," 
Bald  McKiNLKY,  J.,"  the  party  claim- 
ing it  must  show  the  just  possession 
of  the  thing  claimed;  and  no  person 
can  acquire  a  lien,  founded  upon  his 
own  illegal  or  fraudulent  act, or  breach 
of  duty :  nor  can  a  lien  arise,  where 
from  the  nature  of  the  contract  be- 
tween the  parties,  it  would  be  incon- 
sistent with  the  express  terms  or  the 
clear  intent  of  the  contract."  Randel 
V.  Brown,  2  How.  (U.  S.)  406. 

«  An  exception  to  this  general  rule 
exists  in  the  case  of  an  innkeeper. 
It  was  settled  at  an  early  period  in 
the  common  law  that  an  innkeeper 
has  a  lien  on  a  horse  brought  by  a 
guest,  though  the  guest  had  no  right 
to  do  80,  if  the  innkeeper  had  no 
knowledge  of  the  wrong  and  acted 
honestly,  and  this  rule  has  been  ap- 
proved in  this  country.  The  reason 
given  for  the  rule  is  that  the  inn- 
keeper is  bound  to  receive  the  guest 
and  cannot  stop  to  inquire  whether 
he  is  the  true  owner  of  the  property 
he  brings  or  not.  Yorke  v.  Qrenaugh, 


3  Ld.  Raym.  867;  Johnson  v.  Hill,  3 
Stark  172;  Snead  u  Watkins,  1  C.  B. 
(N.  S  )  367;  Grinnell  v.  Cook,  3  Hill 
(K  y.)  485,  38  Am.  Dec.  663;  Jones 
V.  Morrill,  43  Barb.  (N.  Y.)  636.  In 
Turrill  v.  Crawley,  13  Q.  B.  197,  the 
lien  was  maintained  on  a  carriage 
brought  by  the  guest;  and  in  Threfall 
V.  Borwick,  36  L.  T.  Rep.  N.  S.  794,  2 
Eng.  Rep.  (Moak)  689,  affirmed  in  the 
Exchequer  Chamber,  L.  R.  10  Q.  B. 
210,  13  Eng.  Rep.  (Moak)  366,  upon 
a  piano.  Manning  v.  Hallenbeck,  37 
Wis.  202. 

This  exception  has  not  been  made 
in  this  country  in  the  case  of  com- 
mon carriers,  and  it  is  well  settled 
that  the  carrier  cannot  maintain  a 
lien,  against  the  true  owner,  upon 
goods  wrongfully  delivered  to  the 
carrier  for  transportation.  Fitch  u. 
Newberry,  1  Doug.  (Mich.)l,  40  Am. 
Dec.  33;  Robinson  v.  Baker,  5  Cush. 
(Mass.)  137,  51  Am.  Dec.  54;  Clark  v. 
Lowell,  &c.  R.  R.  Co.,  9  Gray  (Mass.) 
231;  Gilson  v.  Gwinn,  107  Mass.  136; 
Everett  v.  Saltus,  15  "Wend.  (N.  Y.) 
474;  Brower  v.  Peabody,  13  N.  Y. 
131;  Martin  v.  Smith,  58  N.  Y.  673. 
"There  is  an  obvious  ground  of  dis- 
tinction," said  Ransom,  J.,"  between 
the  cases  of  carrying  goods  by  a  com- 
mon carrier,  and  the  furnishing  keep 


505 


g  67S.  THE    LAW    OF    AGENCY.  [Book  lY. 

tain  the  lien  although  he  might  have  done  so  if  he  had  acquired 
the  possession  fairly. 

§  678.  Possession  must  be  oontinuous.  It  is  also  indispen- 
sable that  the  possession  should  be  continuous.  A  voluntary 
surrender  of  the  property,  therefore,  to  the  owner  or  some  one 
on  his  behalf,  terminates  the  lien,  unless  it  is  consistent  with  the 
contract,  course  of  business  or  intention  of  the  parties  that  it 
should  continue.*  And  having  once  voluntarily  relinquished  the 
property,  the  party  cannot  regain  his  lien  by  recovering  posses- 
sion of  the  goods,  without  the  consent  or  agreement  of  the 
owner.'  If,  however,  the  property  be  taken  from  the  possession 
of  the  party  claiming  the  lien  by  fraud  or  misrepresentation,  the 
lien  is  not  lost*  and  will  revive  if  his  possession  be  restored.* 

The  lien  is  not  lost  by  a  mere  temporary  parting  with  the 
possession  for  a  special  purpose,  when  there  was  no  intention  to 
relinquish  or  release  the  lien.* 

§  679.  Possession  must  have  been  aoquired  in  Course  of  Em- 
ployment. In  order  to  maintain  the  lien  upon  a  specific  chattel 
the  possession  must  have  been  acquired  in  the  course  of  the  em- 
ployment in  respect  of  which  the  lien  is  claimed.'   A  mere  credi- 

Ing  for  a  horse  by  an  innkeeper.     In  Ex  parte  Foster,  2  Story  (U.  S.  C.  C.) 

the  latter  case,   it  is  equally  for  the  144;    McFarland    v.     Wheeler,      26 

benefit  of  the  owner  to  have  his  horse  Wend.     (N.    Y.)    467;     Walcott    «. 

fed  by  the  innkeeper,  in  whose  cus-  Keith,  22  N.  H.  196;  Collins  v.  Buck, 

tody  he  is  placed,  whether  left  by  a  63  Me.  459;  Sawyer  v.  Lorillard,  48 

thief,    or  by  himself  or    agent;    in  Ala.  333;  Way  v.  Davidson,  12  Gray 

either  case,  food  is  necessary  for  the  (Mass.)  465;   Bowman  v.   Hilton,  11 

preservation  of   his   horse,    and  the  Ohio    303;    Sears    v.  Wills,   4  Allen 

innkeeper  confers  a  benefit  upon  the  (Mass.)  212. 

owner  by  feeding  him.    But  can  it  be  *  Robinson  v.  Larrabee,  63  Me.  116; 

said  that  a  carrier  confers  a  benefit  on  Spaulding   v.    Adams,    83  Me.    212; 

the  owner  of  goods  by  carrying  them  Nashc.  Mosher,  19  Wend.  (N.  Y.)431. 

to  a  place  where,  perhaps,   he  never  •  Nevan  v.  Roup,  supra. 

designed  and  does  not  wish  them  to  ♦  Bigelow  v.  Heaton,  6  Hill  (N.  Y.) 

go?"  In  Fitch  v.  Newberry,    supra.  48;  Ash  v.  Putnam,  1  Id.  303;  Wallace 

This  distinction  would,  however,  be  «.  Woodgate,  1  C.  &  P.  575. 

without  force  in  the  case  of  the  car-  »  Wallace  v.  Woodgate,  supra. 

riage  and  the  piano  above  cited,  and  •  Hays  v.  Riddle,  1  Sandf.  (N.  Y.) 

the  rule  must  be  sustained  on  other  248;  Reeves  ».  Capper,  5  Bing.  N.  C. 

grounds.  136;  Robinson??.  Larrabee,  63 Me.  116. 

»  Tucker   v.    Taylor,    53    Ind.  93;  '  Scott    v.    Jester,    13    Ark.     438; 

Nevan  v.  Roup.  8  Iowa  207;  Oakesc.  Thacher*.  Hannahs,  4  Robert  (N.  Y.) 

Moore,  24  Me.  314,  41  Am.  Dec.  379;  407. 

506 


Chap.  lY.]  LIABILITY    OF    PRINCIPAL    TO    AGENT.  §  680, 

tor  happening  to  have  the  goods  of  his  debtor  in  his  possession  Las 
no  lien  thereon  to  secure  payment  of  the  debt.'  Nor  does  the 
mere  fact  that  a  person  occupies  a  position,  or  pursues  a  calling, 
in  respect  to  which  a  lien  ordinarily  attaches  give  him  a  lien  upon 
property  which  chances  to  be  in  his  possession.  The  possession 
must  have  been  acquired  by  virtue  of  his  position,  or  in  the  pur- 
suit of  the  calling  in  which  he  is  engaged.* 

Thus  a  factor  can  only  claim  a  lien  upon  goods  which  came 
into  his  possession  as  factor;*  an  attorney  only  upon  the  deeds 
and  papers  which  came  into  his  hands  in  the  character  of  an 
attorney ;  *  a  broker  only  upon  the  property  which  was  delivered 
to  him  in  that  capacity.  * 

§  680.  H"o  Lien  if  contrary  to  Intention  of  Parties— Waiver. 
A  lien  is  presumed  to  be  something  of  value.  It  may  in  its  in- 
ception be  waived  or  given  up  without  any  valuable  consideration, 
but  when  it  has  once  attached,  an  executory  agreement  to  waive 
or  surrender  it  will  not  be  obligatory  unless  based  upon  a  legal 
consideration.* 

A  lien  will  not  attach  if  it  be  inconsistent  with  the  terms  upon 
which  possession  was  obtained,'  The  existence  of  a  special  con- 
tract is  not,  of  itself,  inconsistent  with  a  lien,  but  if  it  expressly 
or  impliedly  waives  it,  the  lien  can  not  exist.' 

So  it  is  a  general  principle  that  an  agreement  to  give  credit,  or 
a  special  contract  for  a  particular  mode  of  payment,  •  or  the  tak- 
ing of  a  note,  acceptance  or  other  security  payable  at  a  future 
time,"  or  an  agreement  to  deliver  the  property  before  payment  or 

»  Allen  V.  Megguire,  15  Mass.  4116.  Aid.  50;  Chase  v.  Westmore,  5  Maule 

2  Dixon  V.  Stansfeld,  10  C.  B.  398;  &  Sel.  180. 

"A    man    is   not    entitled  to  a  lien  «  Farrington  v.  Meek,  30  Mo.  578; 

Bimply  because  he  happens  to  fill  a  Leese  v.  Martin,  L.   R.  17   Eq    334; 

character    which    gives   him  such  a  Brandao  v.  Barnett,  13  CI.  &  F.  787. 

right    unless   he   has    received    the  •  Raitt  v.    IVIitchell,    4  Camp.  143; 

goods  or  done  the  act  in  the  particu-  Cowell  v.  Simpson,   16  Ves.  Jr.  330; 

lar   character    to    which    the    right  Chandler  v.  Belden,  18  Johns.  (N.  Y.) 

attaches."    Jarvis,  C.  J.  157,  9    Am.    Dec.  193;  Hutchins  v. 

»  Drinkwater  v.  Goodwin,  1  Cowp.  Olcutt,  4  Vt.  549.  24  Am.  Dec.  634; 

251^  Moore  p.  Hitchcock,  4  Wend.  (N.  Y.) 

«  Stevenson  v.  Blakelock,!  Maule  &  296 ;  Stoddard  Woolen  Manufactory  o. 

Sel.  585.  Huatley,  8  N.  H.  441,  31  Am.  Dec. 

8  Dixon  0.  Stansfeld,  supra.  198;  Stevenson  v.  Blakelock,  1  M.  & 

•  Danforth  v.  Pratt.  42  Me.  50.  S.  535. 

'Crawshay  v.  Homfray,  4  Barn.  &  "  Hutchins  v.  Olcutt,  4  Vt.  549,  24 

507 


§66J. 


THB    LAW    OF    AGENCY. 


[Book  IV. 


before  the  time  of  payment  arrives,'  is  a  waiver  of  the  lien.     An 
agreement  to  pay  a  fixed  price  is  no  waiver.' 

8  681.  Waiver  by  inconsistent  Conduct.  The  lien  will,  how- 
ever be  waived  by  a  general  refusal  of  the  person,  to  whom  it 
inures,  to  deliver  the  property,  accompanied  by  a  claim  of  title 
in  himself,  or  by  a  claim  to  retain  it  on  other  grounds  distinct 
from  his  lien.'  But  a  claim  of  right  to  detain  the  goods  in  respect 
of  two  sums,  as  to  one  only  of  which  the  person  has  a  lien,  is  not 
a  waiver.*     Whether  the  lien  is  lost  by  a  general  refusal  to  de- 


Am.  Dec  634;  Hewlson  v.  Guthrie,  2 
Bing.  N.  C.  755;  Cowell  v.  Simpson, 
16  Ves.  Jr.  275;  Au  Sable  Boom  Co. 
«.  Sanborn,  36  Mich.  358;  Bunney  «. 
Poyntz,  4  B.  &  Ad.  568.  Unless  the 
paper  be  dishonored  while  the  prop- 
erty yet  remains  la  the  agent's  hands. 
Feise  v.  Wray,  3  East.  93.  It  makes 
no  difference  whether  the  note  is  pay- 
able on  demand  or  at  a  future  time,  or 
whether  negotiable  or  not.  Hutchins 
V.  Olcutt,  supra.  A  factor's  lien  for 
money  and  supplies  to  make  a  crop  is 
not  waived  by  taking  personal 
security  for  such  money  and  supplies. 
Story  «.  Flournoy,  55  Ga.  56. 

>  Chandler  v.  Belden,  18  Johns.  (N. 
Y.)  157,  9  Am.  Dec.  193. 

«  The  Hostler's  case,  Mete.  Yelv.  67 
and  note;  Hutton  v.  Bragg,  7  Taunt. 
14;  Raitt  v.  Mitchell,  4  Camp.  146; 
Stoddard  Woolen  Manufactory  v. 
Huntley,  8  N.  H.  441,  31  Am.  Dec. 
198.  "A  particular  lien,"  said 
WooDWAKD,  J.,  "is  given  by  the 
common  law  to  any  one  who  takes 
property  in  the  way  of  his  trade  or 
occupation,  to  bestow  labor  and  ex- 
pense upon  it.  And  it  exists  equally 
whether  there  be  an  agreement  to  pay 
a  stipulated  price,  or  only  an  implied 
contract  to  pay  a  reasonable  price,  2 
Kent's  Com.  635.  It  was  said  by 
HoLROYD,  J.  in  Crawshay  v.  Hom- 
fi  ay,  4  Bam.  &  Aid.  50,  that  the  prin- 
ciple laid  down  in  Chase  v.  West- 
more,  5  Maule  &  Selw.  180,  where  aU 


thfi  cases  came  under  the  considera- 
tion of  the  court,  was  this,  that  a 
special  agreement  did  not  of  itself 
destroy  the  right  to  retain;  but  that  it 
did  so  only  where  it  contained  some 
special  term  inconsistent  with  that 
right.  In  2  Sal  win's  Nisi  Prius,  540, 
the  rule  is  stated  to  be,  that  the  right 
of  detaining  a  thing  until  the  money 
due  upon  it  be  paid,  may  be  waived 
by  a  special  agreement  as  to  the  time 
or  mode  of  payment;  but  not  merely 
by  an  agreement  for  the  payment  of  a 
fixed  sum,"  in  Mathias  v.  Sellers,  86 
Penn.  St.  486,  27  Am.  Rep.  723.  To 
the  same  point  see  also  Banna  v. 
Phelps,  7  Ind.  21,  63  Am.  Dec.  410. 

3  White  V.  Gainer,  9  Moore,  41 ;  2 
Bing.  23,  1  Car.  &  P.  324;  Boardman 
V.  Sill,  1  Camp.  410  Note;  Dirks  v. 
Richards,  5  Scott's  N.  R.  534;  Weeks 
V.  Goode,  6  Com.  B.  N.  S.  367;  Can- 
nee  V.  Spauton.  8  Scott's  N.  R.  714 
8.  0.  7  Man.  &  G.  903:  Dows  v.  More- 
wood,  10  Barb.  (N.  Y.)  183;  Hol- 
brook  V.  Wight,  24  Wend.  (N.  Y.) 
169,  35  Am.  Dec.  607;  Everett  u. 
Saltus,  15  Wend.  (N.  Y.)  474;  Judah 
V.  Kemp,  2  Johns.  (N.  Y.)  Cas.  411; 
Rogers  v.  Weir,  34  N.  Y.  463;  Pic- 
quet  V.  McKay.  2  Blackf.  (Ind.)  465; 
Hanna  v.  Phelps,  7  Ind.  21,  63  Am. 
Dec.  410;  Leigh  v.  Mobile,  «&c.  R.  R 
Co.  58  Ala.  165. 

*  Scarfe  v.  Morgan,  4  Mees  &  Wela. 
270. 


508 


Chap.  IV.]  LIABILITY    OF    PRINCIPAL   TO    AOENT.  §  683. 

liver  the  goods,  without  specifying  any  grounds,  is  a  question 
upon  which  the  authorities  are  in  conflict,  but  the  better  opin-, 
ion  is  thought  to  be  that  it  is.' 

§  682.  Claim  of  Lien  no  Waiver  of  personal  Bemedies.  In 
general,  the  lien  holder  has  recourse  to  the  personal  responsibil- 
ity of  the  debtor  as  well  as  the  lien  upon  the  goods,'  but  he  may 
waive  this  personal  responsibility  if  he  so  elects.  Whether  he 
has  done  so  in  any  given  case,  is  a  question  of  fact  to  be  deter- 
mined from  its  own  circumstances."  So  although  there  may  have 
been  an  undertaking  to  resort  to  the  goods  in  the  first  instance, 
this  will  not  prevent  recourse  to  the  debtor  after  the  proceeds  of 
the  goods  are  exhausted,  unless  there  has  been  an  agreement  to 
look  exclusively  to  the  goods.* 

§  683.  How  Lien  may  be  enforced.  It  is  a  general  rule  that 
a  mere  lien  can  not,  in  the  absence  of  a  statute  authorizing  it,  be 
enforced  by  sale  of  the  property.'  In  such  a  case,  either  the 
ordinary  proceedings  at  law  to  an  execution  upon  which  the 
property  may  be  seized  and  sold,  must  be  resorted  to,  or  recourse 
must  be  had  to  the  more  appropriate  remedy  of  an  action  in 
equity.  An  exception,  however,  is  made  in  the  case  of  factors, 
who  may,  as  will  be  hereafter  seen,*  sell  the  goods  in  their  pos- 
session to  reimburse  themselves  for  their  advances.  So  where 
the  case  amounts  to  a  bailment  or  a  pledge  of  the  property,  or  to 
a  deposit  by  way  of  security  for  a  loan,  a  different  rule  applies 
and  the  bailee  or  pledgee  may,  after  reasonable  demand  and 
notice,  sell  the  property  at  public  sale.' 


>  Hanna  v.  Phelps,  supra;  Dows  v.  *  Qihon  tj.    Stanton,   9  N.  Y.  476; 

Morewood,    supra;    Spence    v.    Mc-  Parker  v.  Brancker,  23  Pick.  (Mass.) 

Millan.    10    Ala.    583.     Contra,    see  40;  Burrill  ».  Phillips,  «ttpr<i;  Peisch 

Everett  v.   CoSLn,   6  Wend.  (N.  Y.)  v.  Dickson,   supra;  Stoddard  Woolen 

603;    Buckley    v.    Handy,     3    Miles  Mfg.  Co.  v.  Huntley,  8  N.  H.  441,  31 

(Penn.)  449.  Am.  Dec.  198. 

s  Graham  v.  Ackroyd,  10  Hare  193;  'Briggs  v.  Boston,  &c.  R.  R.  Co.  6 

Peisch  V.  Dickson,  1  Mason  (U.  S.  C.  Allen  (Mass.)  246;  Fox  v.  McGregor, 

C.)  10;  Beckwith  v.  Sibley,  11  Pick.  11  Barb.  (N.  Y.)  41;  Hunt  v.  Haskell, 

(Mass.)    482;    Colley    v.     Merrill,   6  24  Me.  339, 41  Am.   Dec.  387;  Crum 

Greenl.  (Me.)  50;  Upham  v.  Lefavour,  backer  ©.Tucker,  9  Ark.  365;  Bailey  v. 

11  Mete.  (Mass.)  174.  Shaw,  24  N.  H.  297,  55  Am.  Dec.  341. 

3  Burrill  v.  Phillips,  1  Gall.  (U.  S.  •  See  post,  chapter  on  Factors. 

C.    C.)   360;    Peisch    v,    Dickson,  1  '  Parker    v.    Brancker,     22    Pick. 

Mason  (U.  S.  C.  C)  9.  (Mass.)  40;  Porter  v.  Blood,  5  Pick. 

509 


8  684.  THE    LAW    OF    AOENCT.  [Book    TV. 

§  684.  How  these  Rules  apply  to  Agents.  It  has  not  been 
the  purpose  here  to  go  minutely  into  the  question  of  the  right  of 
lien  as  applied  to  agents  of  various  kinds,  but  rather  to  state  the 
most  important  principles  governing  liens  in  general,  leaving 
their  particular  application  to  be  considered  hereafter  when 
treating  more  fully  of  the  more  prominent  classes  of  agents.^ 

But  in  general  it  may  be  said  that  there  exists  a  particular 
rio-ht  of  lien  in  the  a^ent  for  all  his  commissions,  expenditures, 
advances  and  services  in  and  about  the  property  or  thmg  m- 
trusted  to  his  agency,  whenever  they  were  proper  or  necessary  or 
incident  thereto.*  Thus  it  is  said  by  a  learned  judge  in  New 
York,  "  An  agent  may  have  a  lien  on  the  property  or  funds  of 
his  principal  for  moneys  advanced  or  liabilities  incurred  in  his 
behalf ;  and  if  moneys  have  been  advanced  or  liabilities  incurred 
upon  the  faith  of  the  solvency  of  the  principal,  and  he  becomes 
insolvent  while  the  proceeds  and  fruit  of  such  advances  or  liabil- 
ities are  in  the  possession  of  the  agent,  or  within  his  reach,  and 
before  they  have  come  to  the  actual  possession  of  the  principal, 
within  every  principal  of  equity,  the  agent  has  a  lien  upon  the 
same  for  his  protection  and  indemnity."  * 

So  where  a  principal  consigns  goods  to  an  agent  to  sell  under 
an  agreement  that  the  agent  will  accept  bills  drawn  upon  him  by 
the  principal,  it  is  a  necessary  inference  that  the  bills  were  drawn 
and  accepted  upon  the  credit  of  the  goods,  and  the  agent  has  a 
lien  upon  the  goods  in  his  hands  for  the  amount  of  his  accept- 
ances.* So  an  agent  employed  to  obtain  a  loan  upon  a  commis- 
sion, has  a  lien  for  the  same  upon  the  loan  which  he  secures.* 

(Mass.)  54;  Howard  v.  Ames,  3  Mete.  40  N.  H.  88;  Farrington  v.  Meek,  80 

Olfiss.)  308;  Potter  v.  Thompson,  10  Mo.  581.  77  Am.  Dec.  627;  Lovett  v. 

^  II  Brown,   40  N.    H.   511;    Dan  forth  ». 

1  See  post  as  to  the  liens  of  Attor-  Pratt,  42  Me.  50;  Moore  v.  Hitchcock, 

neys,  Auctioneers,  Factors  and  Bro-  4  Wend.  (N.  Y.)  292;  Mathias  v.  Sell- 

kers'   in     the     respective    chapters  ers,  86  Penn.    St.   486,  27  Am.  Rep. 

devoted  to  those  agents.  723. 

«  McKenzie  v.  Nevius,  23  Me.  138,  •  Muller  v.  Pondir,  55  N.  Y.  325. 

38  Am.  Dec.  291;  Mclntyre  v.  Carver,  «  Nagle  v.  McFeeters,  97  N.  Y.  190; 

3  W  &  S.    (Penn.)  392,  37  Am.  Dec.  Holbrook  v.  Wight,  24  Wend.  (K  Y.) 

519-    Nevan  v.   Roup.   8  Iowa  207;  169,  35  Am.  Dec.  607;  Bank  t;.  Jones, 

Mor-an  v.    Congdon,    4   K  Y.    552;  4  N.  Y.  497;  In  re  Pavy's  Co.,  1  Ch. 

Grinnell  v.  Cook,  3  Hill  (N.  Y.)  485,  Div.  631,  16  Eng.  Rep.  661. 
33  Am.  Dec.  663;  Gregory  v.  Stryker,  »  Vinton  v.  Baldwin,  95  Ind.  433. 

2  Den.  (N.  Y.)  631;  Wilson  v.  Martin, 

510 


Chap.  lY.]  LIABILITY    OF    I'KINOIPAL   TO    AGENT.  §  687. 

§  685.  Agent's  Lien  ordinarily  a  particular  Lien.  It  will  be 
Been  hereafter,  in  cases  which  stand  upon  distinctive  grounds, 
that  an  agent  may  have  a  general  lien,  as  in  the  case  of  bankers, 
factors  and  attorneys.  But  the  lien  of  an  agent  employed  for  a 
specific  transaction  is  ordinarily  a  particular  lien,  and  is  confined 
to  the  retention  of  the  property  for  services  and  disbursements 
in  reference  to  that  property  only,  and  not  for  a  general  balance 
of  account,  nor  for  services  in  reference  to  other  property  or 
affairs,  unless  by  general  usage,  special  agreement  or  mode  of 
dealing,  a  general  lien  has  been  established/ 

§  686.  For  what  Sums  the  Lien  attaches.  Except  by  virtue 
of  a  special  agreement,  the  lien  attaches  only  for  debts  which  are 
certain  and  liquidated,  and  not  for  contingent,  prospective  or 
speculative  damages  or  liabilities.*  The  debts  must  also  have 
been  incurred  by  the  express  or  implied  authority  of  the  princi- 
pal, and  not  as  the  result  of  the  agent's  own  wrong,  neglect  or 
breach  of  instructions.'  They  must  also  have  been  incurred  for 
lawful  and  legitimate  purposes,  and  must  be  due  as  a  matter  of 
right  and  not  as  mere  matter  of  favor.* 

The  lien  attaches  also,  in  the  absence  of  an  express  agreement 
enlarging  its  scope,  only  to  debts  arising  or  incurred  in  transac- 
tions had  in  the  particular  character  by  virtue  of  which  the  agent 
claims  the  lien,  and  not  from  other  and  dissimilar  transactions;* 
and  the  demand  must  be  due  from  the  person  whose  goods  are 
sought  to  be  retained,  and  not  from  a  stranger,  and  must  accrue 
to  the  agent  who  claims  the  lien.* 

VI. 

agent's  right  of  stoppage  in  TKANSrr. 

§  687.  Agent  liable  for  Price  of  Goods,  may  stop  them  in 
Transit.     An  agent  who  has  made  himself  liable  for  the  price 

1  McKenzie  v.  Nevius,  23  Me.  138,  Eng.  (Ark.)  437;  Castellain  «.  Thomp- 

88  Am.  Dec.  291;  Adams  v.  Clark,  9  son,  13  C.  B.  (N.  S.)  105. 

Custi.   (IVIass.)  215,  57  Am.  Dec.  41;  «  Story  on  Agency,  §  364. 

Jarvis  t».  Rogers,  15  Mass.  898;  Rush-  »  See  ante,  §  675. 

forth  «.  Hadfleld.  6  East.  519;  Wright  «  Story    on    Agency,    §364,    ante, 

V.  Snell,  5  B.    «&  Aid.  350;  Barry  v.  %  673. 

Boninger,  46  Md.  59;  Stevens  v.  Rob-  »  See  anU,  %  679. 

ins,  12  Mass.  183;  Scott  v.  Jester,  8  «  Story  on  Agency,  §  365. 

511 


§  688.  THE    LAW    OF    AGENCY.  [Book  lY. 

of  goods  consigned  by  him  to  his  principal,  by  obtaining  them 
in  his  own  name,  and  on  his  own  credit  may  stop  them  while  in 
transit  if  the  principal  becomes  insolvent.'  The  principle  upon 
which  this  rule  is  based  is  that  the  relation  of  the  parties  under 
such  circumstances  is  rather  like  that  of  vendor  and  vendee  than 
of  principal  and  agent' 

The  right,  however,  would  not  exist  if  at  the  time  of  the  con- 
signment the  agent  is  indebted  to  the  principal  on  a  general 
balance  of  account  to  a  greater  amount  than  the  value  of  the 
goods,  and  if  such  consignment  has  been  made  in  order  to  cover 
this  balance.'  Nor  does  the  right  exist  if  the  agent  is  only  a 
surety  for  the  price  of  the  goods.* 

So  the  right  is  lost  where  the  agent,  in  pursuance  of  a  contract 
between  the  principal  and  a  third  person  who  has  bought  the 
goods  of  the  principal  and  paid  him  for  them,  delivers  the  goods 
to  a  carrier  to  be  shipped  to  the  purchaser,  taking  the  shipping 
receipt  in  the  name  of  the  principal,  although  the  principal  fails 
to  pay  the  agent  for  the  goods,  before  they  are  delivered  to  the 
purchaser.* 

§  688.  Right  exercised  as  in  other  Cases.  The  agent's  right 
of  stoppage  in  transitu  is  to  be  exercised  in  the  same  manner, 
and  is  subject  to  be  defeated  by  the  same  contingencies  as  in  the 
case  of  the  exercise  of  the  same  right  by  any  other  vendor.* 

^  689.  Right  of  such  an  Agent  to  retain  the  Title  imtil  paid  for. 
Where  an  agent  purchases  goods  intended  for  his  principal,  but, 
according  to  the  express  or  implied  agreement  of  the  parties, 
buys  them  upon  his  own  credit  or  with  funds  furnished  by  him- 
self, he  may  retain  the  title  to  the  goods  until  they  are  paid  for 
by  the  principal.' 

«  Newhall  v.  Vargas,  13  Me.  93,  29  •  Qwyn  v.  Richmond  &  Danville  R. 

Am.  Dec.  489;  Seymour  v.  Newton,  R  Co.,  85  N.  C.  429,  39  Am.  Rep.  708. 

105  Mass.  272;  Feise  v.  Wray.  3  East.  «  See  Parsons  on  Contracts.  Vol.  1, 

93;  D'AquilaD.  Lambert,  lAmb.  399;  Chap.      VL;    Benjamin    on    Sales, 

8.  0.  2  Eden  75 ;  Tucker  v.  Humphrey,  §§  829-868. 

4   Bing.    516;    Hawkes    v.   Dunn,  1  '  Farmers',  &c.  Bank  v.  Logan,  74 

Cromp.  &  Jer.  519.  N.  T.   568;    Turner  v.    Trustees,   0 

«  Newhall  v.  Vargas,  supra.  Exch.  543;  Mirabita  v.  Imperial,  «S;c. 

»  Wiseman  v.   Vandeputt,  2  Vem.  Bank,  L.  R.  3,  Exch.   Div.    164,   31 

203;Vertue  v.   Jewell,    4  Camp.  31;  Eng.  Rep.  (Moak)  200;    Shepherd  v. 

E well's  Evans  on  Agency,  377.  Harrison,  L.  R.  4  Q.  B.  196;  Ogg  v. 

♦Siffken   e.    Wray,    6    East    371;  Shuter,  1  C.  P.  D.  47,   15  Eng.   Rep. 

Ewell's  Evans  on  Agency,  377  (Moak)  331. 

512 


Chap.  lY.]  LIABILITY   OF    PRINCIPAL    TO   AGENT.  §  689. 

This  rule  has  been  well  stated  by  Folger,  J.,  as  follows ; 
"When  commercial  correspondents,  on  the  order  of  a  principal, 
make  a  purchase  of  property  ultimately  for  him,  but  on  their 
own  credit,  or  with  funds  furnished  or  raised  by  them,  and  such 
course  is  contemplated  when  the  order  is  given,  they  may  retain 
the  title  in  themselves  until  they  are  reimbursed.  One  of  the 
means  by  which  this  may  be  done,  is  by  taking  the  bill  of  sale  in 
their  own  names,  and,  when  the  property  is  shipped,  by  taking 
from  the  carrier  a  bill  of  lading  in  such  terms  as  to  show  that 
they  retain  the  power  of  control  and  disposition  of  it.  This  re- 
sults necessarily  from  the  nature  of  the  transaction.  It  is  not,  at 
once,  an  irrevocable  appropriation  of  the  property  to  the  princi- 
pal. It  rests  for  all  of  its  efficiency  and  prospect  of  perform- 
ance, upon  the  intention  to  withhold  and  the  withholding,  the 
right  to  the  property,  so  that  the  right  may  be  used  to  procure 
the  money  with  which  to  pay.  It  contemplates  no  title  in  the 
principal  until  he  has  reimbursed  to  his  correspondents  the  price 
paid  by  them  or  to  the  person  with  whom  they  have  dealt,  the 
money  obtained  from  him,  with  which  to  pay  that  price.  From 
the  start,  the  idea  formed  and  nursed  is,  that  the  property  shall 
be  the  means  of  getting  the  money  with  which  to  pay  for  it,  and 
that  the  title  shall  not  pass  to  him  who  is  to  be  the  ultimate  owner 
until  he  has  repaid  the  money  thus  got. 

Although  such  correspondents  act  as  agents,  and  are  set  in  mo- 
tion by  the  principal  who  orders  the  purchase,  yet  their  rights  as 
against  him,  in  the  property  are  more  like  those  of  a  vendor 
a2;ainst  a  vendee  in  a  sale  not  wholly  performed,  where  delivery 
and  payment  have  not  been  made  and  where  delivery  is  depend- 
ent upon  payment.     *     *     * 

If  the  vendor,  when  shipping  the  articles  which  he  intends  to 
deliver  under  the  contract,  takes  the  bill  of  lading  to  his  own 
order  and  does  so,  not  as  agent  or  on  behalf  of  the  purchaser 
but  on  his  own  behalf,  he  thereby  reserves  to  himself  a  power  of 
disposing  of  the  property,  and  consequently  there  is  no  final  ap- 
propriation and  the  property  does  not  on  shipment  pass  to  the  pur- 
chaser. So  if  the  vendor  deals  with,  or  claims  to  retain,  the  bill  of 
lading  in  order  to  secure  the  contract  price,  as  when  he  sends  it 
forward  with  a  draft  attached,  and  with  directions  that  it  is  not  to 
be  delivered  to  the  purchaser  until  payment  of  the  draft,  the  appro- 
priation is  not  absolute,  and  until  payment,  or  tender  of  the  price, 
33  513 


g  690.  THE    LAW    OF    AGENCY.  [Book  IV. 

is  conditional  only,  and  until  then  the  property  of  the  goods  does 
not  pass  to  the  purchaser.  We  see  no  principle  which  distin- 
guishes the  case  of  a  vendor  and  vendee,  in  this  respect,  from 
that  of  a  correspondent  or  agent,  buying  for  another,  yet  paying 
the  price  from  his  own  means,  or  from  moneys  by  agreement 
raised  upon  the  property,  or  upon  his  own  credit,  and  holding 
the  property  as  security  until  the  principal  has  made  reimburse- 
ment. Such  is  the  purpose  of  the  parties.  There  is  no  intent 
that  the  property  shall  be  appropriated  until  payment  is  made. 
And  unless  third  parties  are  unavoidably  misled  to  their  harm, 
they  have  no  cause  to  complain  of  a  purpose  so  reasonable  and 
productive  of  so  good  results."* , 

VII. 

BiaHTS   OP   8UBA0ENT   AGAINST   PRINCIPAL, 

§  690.  When  Principal  liable  for  hia  Compensation.  The 
right  of  the  subagent  to  recover  his  compensation  from  the  prin- 
cipal depends  upon  considerations  already  discussed.  As  has 
been  seen,  where  the  appointment  of  the  subagent  is  expressly 
or  impliedly  authorized  by  the  principal,  the  latter  is  liable  for 
the  subagent's  compensation,  but  where  the  agent,  having  under- 
taken the  performance  of  some  duty  to  his  principal,  employs 
upon  his  own  account  a  servant  or  subagent  to  assist  him,  the 
subagent  must  look  to  his  immediate  employer, — the  agent, — and 
not  to  the  principal.* 

S  691.  Same  Kules  govern  Reimbursement  and  Indemnity, 
And  the  same  principles  would  govern  the  subagent's  claim 
for  reimbursement  for  expenses  and  indemnity  against  loss  or 
injury.' 

8  692.  How  as  to  Protection  against  Injury.  So  where  in 
accordance  with  the  principles  referred  to,  the  subagent  is  to  be 
deemed  the  agent  of  the  principal,  he  would  be  entitled  to  the 
same  remedies  as  any  other  agent  for  an  injury  occasioned  by  the 
principal's  negligence.*     Where,  however,  he  is  the  agent  of  the 

I  Farmers',  &c.  Bank  v.  Logan,  74         *  See  ante,  %  197. 
N.  Y.  583-,  Moora  v.  Kidder,  106  N.  »  See  ante,  %%  049-651. 

Y  33.  *  See  ante,  %  G52  et  seq. 

514 


Chap.  IV.]  LIABILITY   OF   PRINCIPAL   TO   AGENT.  §  693. 

agent  merely,  the  same  rules  would  apply  which  govern  the  rela- 
tion to  the  agents  or  servants  of  an  independent  contractor.* 

§  693.  When  Subagent  entitled  to  a  Iiien.  A  subagent  ai). 
pointed  without  the  express  or  implied  authority  of  the  principal 
and  who  is  therefore  regarded  as  the  agent  or  servant  of  the 
agent  merely,  can  by  virtue  of  that  relation  acquire  no  lien  or 
charge  upon  the  goods  or  property  of  the  principal  confided  to 
the  possession  of  the  agent.*  But  where  the  subagent,  being  ap- 
pointed by  the  express  or  implied  authority  of  the  principal,  is, 
in  law,  to  be  regarded  as  the  agent  of  the  latter,  such  subagent 
is  entitled  to  a  lien  to  the  same  extent  as  any  other  agent.'  So 
although  the  appointment  of  the  subagent  was  originally  un- 
authorized, yet  if  his  appointment  has  been  subsequently  ratified 
by  the  principal,  by  availing  himself  of  the  proceeds  or  benefits 
Accruing  from  his  acts,  or  otherwise,  the  subagent's  lien  will 
Attach.* 

At  the  same  time,  however,  the  subagent,  though  appointed 
without  authority,  "  will  be  at  liberty  to  avail  himself  of  his  gen- 
eral lien  against  the  principal  to  the  extent  of  the  lien  particular 
or  general,  which  the  agent  himself  has  against  the  principal,  by 
way  of  substitution  to  the  rights  of  the  agent,  if  the  acts  of  the 
latter  or  his  own  are  not  tortious."  ' 

So  in  many  cases,  proceeds  Judge  Story,  "  a  subagent  who  acta 
without  any  knowledge  or  reason  to  believe  that  the  party  em- 
ploying him  is  acting  as  an  agent  for  another,  will  acquire  a 
rightful  lien  on  the  property  for  his  general  balance.  Thus,  for 
example,  if  a  subagent  or  broker,  at  the  request  of  an  agent, 
should  effect  a  policy  on  a  cargo,  supposing  it  to  be  for  the  agent 
himself,  but  in  fact  it  should  be  for  a  third  person  for  whom  the 
agent  has  purchased  the  cargo,  and  afterwards,  and  while  the 
policy  is  in  the  broker's  hands,  he  should  make  advances  to  the 

»  See  ante,  %  663.  »  Story  on  Agency,  §  389;  McKen- 

*  Story  on  Agency,  §  389;  Maanss  zie  t.  Nevius.  supra;  Maaass  «.  Hen- 

V.   Henderson,    1   East  335;    Man  v.  derson,  1  East  335;  Man  v.   Sheffner, 

Shirlner,   2  East  523;   Westwood  v.  2  East  523;  McCombie  v.    Davies,  7 

Bell,  4  Camp  348.  East  7;  Solly  v.  Rathbone,  2  M.  «fc  8. 

3  Story  on  Agency,  §  389;  McKen-  298;  Cochran  v.  Irlam,  2M.  &  S.  301, 

zie  V.  Nevius,  22  Me.    138,   38   Am.  note;    Schmaling  v.   Thomlinson,    0 

Dec.  291.  Taunt.  147. 

<  Story  on  Agency,  §  389;  McKen- 
zie  V.  Nevius,  supra. 

515 


§  694.  THB   LAW   OF    AGENCY.  [Book  IV. 

agent,  before  any  notice  of  the  real  state  of  the  title  to  the  prop- 
erty, he  will  be  entitled  to  a  lien  on  the  policy,  and  on  the  money 
received  on  it,  to  the  extent  of  the  money  so  advanced,  and  also 
(as  it  should  seem),  for  his  general  balance  of  account  against  the 
agent."  • 

>  Story  on  Agency,  §  390;  Mann  v.  Forrester,  4  Oamp.  60;  Westwood  v. 
Bell,  4  Camp.  349. 

516 


Chap.  Y.]        LIABXITY  OF  PRINCIPAL  TO  THIRD    PERSON. 


CHAPTER    V. 

THE  DUTIES  AND  LIABILITIES  OP  THE  PRINCIPAL  TO  THIRD 

PERSONS. 


§  694.  Purpose  of  chapter. 

I.   LlABILTTT  OF  PkINOIPAL  ES  CON- 
TBACT. 

t.     Tha  Liability  of  an    Undisclosed 
Principal. 

695.  Undisclosed    Principal    liable 

when  discovered  on  simple 
Contracts. 

696.  Same     Subject  —  The     Rule 

stated. 

697.  Same   Subject  —  Of  the  first 

Exception. 

698.  Same  Subject — Of  the  second 

Exception. 

699.  Same  Subject  —  What  consti- 

tutes an  Election. 

700.  Same  Subject  —  Election  must 

be  made  within  a  reasonable 
Time. 

701.  Rule   applies   to   all    simple 

Contracts. 

702.  Does   not  apply  to  Contract 

under  Seal.    When. 

t.  The  Liability  of  a  Disclosed  Princi- 
pal. 

a.  For  Agent's  Acts  and  Contracts. 

703.  In  general. 

704.  Principal    liable    for  Agent's 

Acts  and  Contracts  in  Exe- 
cution of  Authority. 

705.  Same     Subject  —  The     Rule 

stated. 

706.  Third  Person  must  ascertain 

Agent's  Authority. 

707.  What  constitutes  Authority. 

708.  Same  Subject — Secret  Instruc- 

tions and  Restrictions. 


§  709.  General  and  special  Agents. 

710.  Same  Subject  —  Special 

Agent's  Authority  must  be 
strictly  pursued . 

711.  Effect  of  Ratification. 

712.  Performance  of  unlawful  Act 

not  enforced. 

713.  Principal    not    bound    where 

Agent  has  an  adverse  Interest. 

b.  For  the  Agent's   Statements  and 
Representations. 

714.  When     Agent's     Admissions 

and  Representations  binding 
on  Principal. 

715.  What   embraced    within   Res 

Oestce. 

716.  Agent's    Authority    must    be 

first  shown. 

717.  When     Principal     bound   by 

Agent's  Representatioa  of 
extrinsic  Facts  upon  which 
Authority  depends. 

c.  By  notice  given  to  the  Agent. 

718.  General  Rule  —  Notice  to  the 

Agent  is  Notice  to  the  Prin 
cipal. 

719.  Same  Subject  —  The  Reason 

of  the  Rule. 

720.  Same    Subject  —  Notice    ac- 

quired during  Agency. 
731.  Same    Subject  —  Knowledge 
acquired  prior  to  Agency. 

722.  Same  Subject  —  Of   the  first 

Exception. 

723.  Same  Subject  —  Of   the  sec- 

ond Exception. 

724.  What  Notice  includes  —  Act- 

ual and  constructive  Notice. 


517 


§  6M. 


THE    LAW    OF   AGENCY. 


[J3ook  IV. 


§  725.  Rule  applies  only  to  Matters 
within  Agent's  Authority. 

726.  Notice    after  termination  of 
Authority  does  not  bind. 

727.  Notice  must  be  of  some  ma- 

terial Matter. 

728.  Notice  to  Subagent  when  No- 

tice to  Principal. 

729.  These  Rules  apply  to  Corpora- 

tions. 

730.  Same  Subject— When  Notice 

to  Director  is  Notice  to  Cor- 
poration. 

731.  Same     Subject  —  Notice     to 

Stockholder  not    Notice  to 
the  Corporation. 

II.  Liability  of  the  Principal  in 
Tort. 

a.  For  Agent's  Wrongful  Acts. 

732.  In  general. 

738.  Principal  liable  for  Acts  ex- 
pressly directed. 

734.  Liable    for  Agent's  negligent 

Act  in  Course  of  Employ- 
ment. 

735.  Same   Subject  —  Acts  in  the 

Course  of  his  Employment. 

736.  Same  Subject  —  Illustrations. 
787.  Not  liable  for  Negligence  not 

in  Course  of  Employment. 


§  738.  Same  Subject  —  Illustrations. 

739.  Liability  for  Agent's  fraudu- 

lent Act. 

740.  When     Principal    liable    for 

Agent's  willful  or  malicious 
Act. 

741.  Same  Subject  —  lUustrationa. 

742.  Same  Subject  —  Liability  for 

excessive  Force. 

743.  Liability    of     Principal     for 

Agent's   false  or  fraudulent 
Representations. 

744.  Same    Subject  —  Third    Per- 

son's Remedies. 

745.  Principal's  civil  Liability  for 

Agent's    criminal    or    penal 
Act. 

746.  Principal's  criminal   Liability 

for  Agent's  criminal  or  penal 
Act. 

747.  Principal's  Liability  for  Acts 

of    independent  Contractor. 

748.  Same  Subject  —  Illustrations. 

749.  Principal's  Liability  for  Acts 

of  Subagent. 

750.  Effects  of  Ratification. 

751.  The    Measure     of     Damages 

against  the  Principal. 

752.  Unsatisfied  Judgment  against 

Agent    no    Bar    to    Action 
against  Principal. 


§  694.  Purpose  of  Chapter.  It  is  obvious  that  one  of  the 
most  important  questions  in  the  law  of  agency  is  that  which 
deals  with  the  duties  and  liabilities  of  the  principal  to  third  per- 
sons, based  upon  and  growing  out  of  the  acts,  declarations,  con- 
tracts and  misconduct  of  the  agent  in  his  dealings  and  transac- 
tions with  them.  To  some  extent  and  for  some  time,  the  agent 
has  been  invested  with  the  personality  of  his  principal  and  sent 
out  into  the  world  to  obtain  for  the  principal  the  profits,  benefits 
or  other  objects  which  he  desired,  and  to  bind  the  principal 
when  necessary  by  such  representations,  contracts  and  other  acts 
as  are  suitable  to  the  occasion,  and  within  the  terms  and  objects 
of  the  authorization. 

In  pursuing  these  objects,  the  agent  may  have  kept  either  the 
fact  of  the  agency,  or  the  name  of  his  principal,  or  both,  con- 

518 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  696. 

cealed  from  the  persons  with  whom  he  dealt,  and  in  this  event 
the  question  arises  whether,  in  either  case,  the  actual  principal 
can  be  made  liable  when  discovered. 

Or  the  agent  may  have  disclosed  both  the  fact  of  his  agencj 
and  the  name  of  his  principal,  and  in  this  event  it  is  material  to 
know  whether  the  act,  contract  or  representation  of  the  agent, 
assumed  to  be  done  or  made  by  virtue  of  his  authority,  was  in 
fact  witliin  its  nature  and  its  scope. 

So  the  question  may  arise  how  far  the  principal  can  be  held 
responsible  for  the  wrongs  committed  by  the  agent  in  pursuance 
of,  or  while  engaged  in,  the  undertaking.  For  convenience  of 
treatment  there  will  be  considered  : — 

I.  The  liability  of  the  principal  in  contract,  including: — 

1.  The  liability  of  an  undisclosed  principal. 

2.  The  liability  of  a  disclosed  principal. 
IL  The  liability  of  the  principal  in  tort 

I. 

LIABILITT   OF   PRINCIPAL    IN   CONTRACT. 

1.  The  Liability  of  an  Undisclosed  Frinovpal. 

§  695,  Undisclosed  Principal  liable  when  discovered  on  sim- 
ple Contracts.  It  has  been  seen  in  an  earlier  part  of  this  work' 
that,  if  the  agent  conceals  either  the  fact  of  his  agency  or  the 
name  of  his  principal,  he  may  be  held  personally  liable  upon  the 
contracts  made  by  him.  This  is  so  because  the  agent,  having 
failed  to  disclose  a  responsible  principal,  must  be  presumed  to 
have  intended  to  make  himself  liable.  But  this  liability  of 
the  agent  is  not  exclusive.  Although  the  principal  was  con- 
cealed, the  contract  has  been  made  by  his  authority  and  for  his 
benefit  and  advantage.  In  point  of  law  the  contract  is,  in  real- 
ity, the  contract  of  the  principal,*  though  ostensibly  the  contract 
of  the  agent.  Hence,  although  the  agent,  under  the  rules  stated, 
is  primarily  liable,  the  principal,  when  discovered,  should  be  held 
liable  also  at  the  election  of  the  party  who  has  dealt  with  the 
agent  under  a  misapprehension  of  his  true  character. 

§  696.     Same  Subject— The  Rule  stated.     It  is,  therefore,  the 
•  See  ante,  §  554.  •  Cothay  « .  Pennell,  10  B.  «&  C.  671. 

519 


I  697.  THE    LAW    OF    AGENCY.  [Book  lY. 

rule  of  the  law  that  an  undisclosed  principal,  when  subsequently 
discovered,  may,  at  the  election  of  the  other  party  if  exercised 
within  a  reasonable  time,  be  also  held  liable  upon  all  simple  con- 
tracts made  in  his  behalf  by  his  duly  authorized  agent,  although 
the  credit  was  originally  given  to  the  agent  under  a  misappre- 
hension as  to  his  true  character. ' 

This  rule,  however,  is  subject  to  certain  exceptions  : — 

1.  That  the  principal  is  not  liable  where,  before  the  other 
party  has  intervened  with  his  claim,  the  principal  has  settled  with, 
paid  or  credited  the  agent  in  good  faith  and  in  reliance  upon 
such  a  state  of  conduct  or  representations  on  the  part  of  the 
other  party,  as  to  reasonably  lead  the  principal  to  infer  that  the 
agent  had  already  settled  with  such  other  party.  This  rule  rests 
upon  the  familiar  doctrine  of  estoppel." 

2.  That  the  principal  cannot  be  held  liable  where  the  other 
party,  with  full  knowledge  as  to  who  was  the  principal,  and  with 
the  power  of  choosing  between  him  and  the  agent,  has  distinctly 
and  unquestionably  elected  to  treat  the  agent  alone  as  the  party 
liable.' 

§  697.  Same  Subject— Of  the  first  Exception.  This  subject 
has  been  much  discussed  in  the  English  courts  and  various  and 

>Hyde  v.  Wolf.  4  La.  234,  23  Am.  Townsend,    24   N.    Y.  61;  Ford  v. 

Dec. 484;  Episcopal  Church  v.  Wiley,  Williams,  21  How,  (U.  S.)  287;  Hun- 

2  Hill  (S.  C.)  Ch.  584,  s.  c.  1   Riley  tington  v.  Knox.  7  Cush.  (Mass.)  371; 

(S.   C.)    Ch.  156,  30  Am.  Dec.  386;  Eastern   R.    R.    Co.    v.    Beaedict,    6 

Smith  V.  Plummet,  5  Whart.  (Pena.)  Gray  (Mass.)  566;  Hubbert  v.  Borden, 

82,    34    Am.    Dec.  530;     Taintor  v.  6  Whart.  (Penn.)91  ;  Borcherling  v. 

Pr'eadergast,   8   Hill   (N.  Y.)  73,  38  Katz,  37  N.   J.    Eq.   150;  Lerned  v. 

Am.   Dec.  618;  Henderson   t.   May-  Johns,  9  Allen  (Mass.)  419 ;  National 

hew,  2  Gill  (Md.)  393,  41   Am.   Dec.  Ins.   Co.  v.    Allen,    116    Mass.  398, 

434,'Hunter«,  Giddings,  97Ma3S.  41,  Meeker  «.  Claghorn,  44  N.    Y.  349; 

93  Am.  Dec.  54;  Exchange  Bank  v.  Jessup  v.  Steurer,  75  N.  Y.  613;  Hig- 

Rice,   107  Mass.  37,  9  Am.   Rep.  1:  gins©.  Senior,  8  Mees.  &  Wells,  834; 

Briggs  t>.  Partridge,  64  N.  Y.  357,  21  Browning  v.  Provincial  Ins.  Co.,  L. 

Am.    Rep.   617;  Cobb  v.   Knapp,  71  R.  5  P.  C.  App.  263;  Calder  v.   Do- 

N.Y.  348,  27  Am.  Rep.  51;  Merrill  v.  bell,  L.   R.  6  C.  P.  486.  Trueman  v. 

Kenyon.  48  Conn.  314,  40  Am.  Rep.  Loder,  11  Ad.  &  Ell.  594;  Smethurst 

174;  Byington  v.  Simpson,  134  Mass.  v.  Mitchell,  IE.  &E.  633;  Thomson 

169,  45  Am.   Rep.   314;  Mayhew  e.  v.  Davenport,  9  B.  &.  C.  78. 
Graham,  4  Gill  (Md.)  363;  Inglehart         «  See  following  section  and  cases 

•.  Thousand  Island  Hotel  Co.  7  Hun  cited. 

(N.   Y.)  547;  Coleman  v.   First  Na-  »  See  section  698  and  cases  cited, 

tional  Bank,  53  N.  Y.  393;  Dykers  v. 

520 


Chap,  v.]        LIABILITY  OF  PEINCIPAI.  TO  THIRD    PERSON.  §  697. 

conflicting  rules  have  been  laid  down  in  successive  cases.  Some 
of  tliese  rules  have  been  adopted  by  the  courts  and  textwriters 
in  this  country,  but  have  been  afterwards  denied  or  limited  by 
later  cases  in  the  English  courts,  and  the  result  has  been  an  ex- 
ceedingly unsatisfactory  condition  of  the  law. 

One  of  the  earliest  of  these  cases  is  that  of  Thomson  v.  Daven- 
port,' decided  in  the  court  of  King's  Bench,  in  1829.  In  that 
case  the  agent  disclosed  that  he  was  acting  for  a  principal  in  Scot- 
land but  did  not  disclose  his  principal's  name.  Lord  Tenterden, 
in  his  opinion,  said  :  "  I  take  it  to  be  a  general  rule,  that  if  a  per- 
son sells  goods  (supposing  at  the  time  of  the  contract  he  is  deal- 
ing with  a  principal),  but  afterwards  discovers  that  the  person 
with  whom  he  has  been  dealing  is  not  the  principal  in  the  trans- 
action, but  agent  for  a  third  person,  though  he  may  in  the  mean- 
time have  debited  the  agent  with  it,  he  may  afterwards  recover 
the  amount  from  the  real  principal ;  subject,  however,  to  this 
qualification,  that  the  state  of  the  account  between  the  principal 
and  the  agent  is  not  altered  to  the  prejudice  of  the  principal," 
and  Bayley,  J.,  in  the  same  case,  said :  "  Where  a  purchase  is 
made  by  an  agent,  the  agent  does  not,  of  necessity,  so  contract  as 
to  make  himself  personally  liable ;  but  he  may  do  so.  If  he  does 
make  himself  personally  liable,  it  does  not  follow  that  the  prin- 
cipal may  not  be  liable  also,  subject  to  this  qualification,  that  the 
principal  shall  not  be  prejudiced  by  being  made  personally  liable 
if  the  justice  of  the  case  is  that  he  should  not  be  personally  liable. 
If  the  principal  has  paid  the  agent,  or  if  the  state  of  accounts  be- 
tween the  agent  and  the  principal  would  make  it  unjust  that  the 
seller  should  call  on  the  principal,  the  fact  of  payment  or  such 
a  state  of  accounts  would  be  an  answer  to  the  action  brought 
by  the  seller  where  he  had  looked  to  the  responsibility  of  the 
agent." 

The  rule  as  laid  down  by  Lord  Tenterden  was  approved  by  Mr. 
Parsons  in  his  work  on  Contracts,*  and  by  Judge  Story  in  his 
work  on  Agency.'     It  was  also  adopted  in  Indiana.* 

Following  this  case  came  Heald  v.  Kenworthy,'  decided  in  the 
Exchequer  in  1855,  in  which  these  expressions  of  Lord  Tenter- 
den and  Bayley,  J.,  were  shown  to  be  mere  dicta,  and  were  held 

1  9  Barn.  &  Cress.  78.  *  Thomas  v.  Atkinson,  38  Ind.  248. 

» I.  ParsoQS  on  Contracts,  63.  »  10  Exch.  739. 

•  Story  on  Agency,  449. 

521 


R  097.  THE    LAW    OF    AGENCY.  [Book  lY. 

by  the  conrt  to  be  inaccurate  statements  of  the  law.  Parke,  B., 
limited  the  rnle  to  those  cases  where  the  principal  has  been  mis- 
led by  the  action  of  the  seller,  saying :  "  If  the  conduct  of  the 
seller  would  make  it  unjust  for  him  to  call  upon  the  buyer  for 
the  money,  as  for  example,  where  the  principal  is  induced  by  the 
conduct  of  the  seller  to  pay  his  agent  the  money  on  the  faith  that 
the  agent  and  seller  have  come  to  a  settlement  on  the  matter,  or  if 
any  representation  to  that  effect  is  made  by  the  seller,  either  by 
words  or  conduct,  the  seller  cannot  afterwards  throw  off  the  mask 
and  sue  the  principal." 

Afterwards  arose  the  case  of  Armstrong  v.  Stokes,'  decided  in 
the  court  of  Queen's  Bench  in'  1872.  In  this  case  J.  &  O. 
Ryder,  who  were  commission  merchants  at  Manchester,  acting 
sometimes  for  themselves  and  sometimes  as  agents,  having 
received  an  order  for  goods  from  defendants,  bought  them  of 
plaintiff,  without  disclosing  that  they  were  not  acting  for  them- 
selves. 

J.  &  O.  Ryder  delivered  the  goods  to  defendants  who  paid  for 
them  in  good  faith.  Afterward  J.  &  O.  Ryder  failed,  not  hav- 
ing paid  the  plaintiff.  Later  it  was  discovered  by  plaintiff  that 
J.  &  O.  Ryder  had  bought  the  goods  for  the  defendants  and 
thereupon  the  plaintiff  brought  the  action  to  charge  defendants 
as  undisclosed  principals,  but  it  was  held  that  defendants'  pay- 
ment to  J.  &  O.  Ryder  was  a  bar  to  recovery.  Blackburn,  J., 
H'ho  delivered  the  opinion  of  the  court  (Blackburn,  Mellob  and 
Lush),  held  that  the  rule  laid  down  by  Parke,  B.,  was  too  nar- 
row and  cited  and  approved  that  advanced  by  Lord  Tentebden 
and  Mr.  Justice  Baylet. 

Referring  to  the  rule  of  Parke,  B.,  the  court  say:  "We 
think  that  if  the  rigid  rule  thus  laid  down  were  to  be  applied  to 
those  who  were  only  discovered  to  be  principals  after  they  had 
fairly  paid  the  price  to  those  whom  the  vendor  believed  to  be  tlie 
principals,  and  to  whom  alone  the  vendor  gave  credit,  it  would 
produce  intolerable  hardship.  It  may  be  said,  perliaps  truly, 
this  is  the  consequence  of  that  which  might  originally  have  been 
a  mistake,  in  allowing  the  vendor  to  have  recourse  at  all  against 
one  to  whom  he  never  gave  credit,  and  that  we  ought  not  to 
establish  an  illogical  exception  in  order  to  cure  a  fault  in  a  rule. 
But  we  find  an  exception  (more  or  less  extensively  expressed^ 
»  L.  R.  7  Q.  B.  598,  3  Eng.  (Moak)  217. 
522 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  697. 

always  mentioned  in  the  very  cases  that  lay  down  the  rule;  and 
without  deciding  anything  as  to  the  case  of  a  broker,  who  avow- 
edly acts  for  a  principal  (though  not  necessarily  named),  and 
confining  ourselves  to  the  present  case,  which  is  one  in  w^hicli,  to 
borrow  Lord  Tenterden's  phrase  in  Thomson  v.  Davenport,*  the 
plaintiff  sold  the  goods  to  J.&  O.  Ryder  (the  agents),  'supposing 
at  the  time  of  the  contract  he  was  dealing  with  a  principal,'  we 
think  such  an  exception  is  established.  We  wish  to  be  under- 
stood as  expressing  no  opinion  as  to  what  would  have  been  the 
effect  of  the  state  of  the  accounts  between  the  parties  if  J. 
&  O.  Ryder  had  been  indebted  to  the  defendants  on  a  separate 
account,  so  as  to  give  rise  to  a  set-off  or  mutual  credit  between 
them.  We  confine  our  decision  to  the  case  where  the  defend- 
ants, after  the  contract  was  made,  and  in  consequence  of  it,  bona 
fide  and  without  moral  blame,  paid  J.  &  O.  Ryder  at  a  time 
when  the  plaintiff  still  gave  credit  to  J.  &  O.  Ryder  and  knew 
of  no  one  else.  We  think  that  after  that  it  was  too  late  for  the 
plaintiff  to  come  upon  the  defendant." 

This  case,  in  its  turn,  was  followed  by  Irvine  v.  Watson,*  de- 
cided in  the  Queen's  Bench  in  1879  in  which  Bowen,  J.,  laid 
down  the  following  rules :  "  There  are  two  classes  of  sales 
through  an  agent  to  an  undisclosed  principal  which  it  is  neces- 
sary to  distinguish.  1.  Where  the  seller  supposes  himself  to  be 
dealing  with  a  principal,  but  discovers  afterwards  that  he  has 
been  selling  to  an  agent,  and  that  there  is  an  undisclosed  princi- 
pal behind,  the  law  allows  the  seller  to  have  recourse  on  such 
discovery  to  the  undisclosed  principal,  provided  always  ^  that  the 
principal  has  not  meanwhile  paid  the  agent,  or  that  the  state 
of  accounts  between  the  principal  and  agent  does  not  render  it 
unjust,  t.  d.,  inequitable  that  the  seller  should  any  longer  look  to 
the  principal  for  payment.  This  statement  of  the  proviso  which 
relieves  the  undisclosed  principal  in  certain  cases  from  all  neces- 
sity to  pay  the  seller  was  thought  by  Parkb,  B.,  and  the  other 
judges  in  Heald  v.  Kenworthy  *  to  be  too  large  without  further 
explanation,  and  they  expressed  the  view  that  the  only  case  in 
which  the  seller  under  such  circumstances  was  precluded  from 

'  Supra.  and  Bayley, J.  in  Thomson*.  Daven- 

»  5  Q   B.  Dlv.  103,  29  Eng.  Rep.  port.  9  B.  &  0.  78. 

(Moak)  186.  *  10  Exch.  745. 
3  See,  per  Lord  Tentkrden,  0.  J. 

523 


§  697.  THE    LAW    OF    AGENCY.  [Book  IV. 

having  recourse  to  the  nndisclosed  principal  when  discovered, 
was  when  the  seller,  by  some  conduct  of  his  own,  had  misled  the 
principal  into  paying  or  settling  with  his  agent  in  the  interim. 
The  principal,  such  is  the  reasoning  of  the  Court  of  Exchequer, 
has  originally  authorized  his  agent  to  create  a  debt,  and  the  prin- 
cipal cannot  be  discharged  from  the  debt  unless  the  seller  has 
estopped  himself,  by  his  conduct,  from  enforcing  it  against  him. 
The  court  of  Queen's  Bench  in  Armstrong  v.  Stokes,'  do  not 
adopt  this  narrower  version  of  Lord  Tenterden's  and  Mr.  Justice 
Bayley's  proviso.  They  revert  to  the  wider  language  used  by 
Lord  Tenterden  and  Bayley,  J.,  in  Thomson  v.  Davenport,' 
and  it  must  now  be  taken  to  be  the  law  that  a  seller  who  has 
given  credit  to  an  agent,  believing  him  to  be  a  principal,  cannot 
have  recourse  against  the  undisclosed  principal,  if  the  principal 
has  bona  fide  paid  the  agent  at  a  time  when  the  seller  still  gave 
credit  to  the  agent,  and  knew  of  no  one  else  except  him  as 
principal. 

2.  The  present  case  is  one  that  belongs  to  a  distinct  but  analo- 
gous class.  At  the  time  of  the  dealing  in  the  goods,  the  seller 
was  informed  that  the  person  who  came  to  buy  was  buying  for  a 
principal,  but  was  not  told,  and  did  not  ask,  who  that  principal 
was,  nor  anything  further  about  him.  Thomson  v.  Davenport  * 
is  the  leading  authority  to  show  that,  in  such  a  case,  where  no 
payment  or  settlement  in  account  between  the  undisclosed  prin- 
cipal and  his  agent  has  intervened,  the  seller  may  afterwards  have 
recourse  to  the  undisclosed  principal.  But  what  if  the  undis- 
closed principal  has  meanwhile  innocently  paid  or  settled  with 
his  agent?  If  indeed  such  payment  or  settlement  is  the  result 
of  any  misleading  conduct  on  the  part  of  the  seller,  then,  no 
doubt,  the  general  principal  alluded  to  in  Heald  v.  Ken  worthy,* 
would  equally  apply,  and  the  seller  could  no  longer  pursue  his 
remedy  against  the  man  whom  he  had  misled.  But  is  this  the  only 
proviso,  or  must  a  wider  proviso  still  in  the  present  class  of  cases 
be  engrafted  on  the  statement  of  the  rule,  similar  to  the  proviso  as 
finally  sanctioned  in  Armstrong  v.  Stokes.®  This  was  a  case  in 
which,  at  the  time  of  sale,  exclusive  credit  had  been  given  by 
the  seller  to  the  agent,  who  bought  in  his  own  name  as  princi- 

'  Supra.  *  Supra. 

«  Supra.  •  Supra. 

*  Supra. 

5241 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.^  §  697. 

pal.     In  the  present  instance  the  agent  bought,  it  is  true,  in  his 
own  name,  but  held  out  to  the  seller  the  additional  advantage  of 
the  credit  of  an  unnamed  principal  behind.     "What  difference  to 
the  liability  of  the  principal  does  this  make  ?     It  is  obvious  that 
when,  as  in  Armstrong  v.  Stokes,'    the  seller  deals  exclusively 
with  the  agent  as  principal,  the  seller  sells  knowing,  if  his  buyer 
turns  out  to  have  a  principal  behind  him,  the  principal  will  have, 
at  all  events,  been  justified  in  assuming,  as  the  fact  is,  that  the 
seller  deals    simply   with    the   agent.     The    principal    may   be 
expected  to   arrange  with  his  agent  on   this  basis.     If  before 
recourse  is  had  to  him,  the  undisclosed  principal  has  put  his 
agent  in  funds  to  pay,  the  seller  cannot  afterward  object  that  the 
undisclosed  principal,  who  had  a  right  to  suppose  his  credit  was 
not  looked  to  in  the  matter,  should  have  held  his  hand.     The 
case  is   altered  where  the  agent,  when  buying,  states  he  has  a 
principal  whose  existence,  though  he  does  not  name  him,  he  is 
authorized  in  mentioning.     I  think  that  the  liability  of  the  prin- 
cipal, who  under  such  circumstances  pays  his  agent,  to  pay  over 
again  to  the  seller  must  depend  in  each  case  on  what  passes 
between  the  seller  and  the  agent,  acting  within  the  scope  of  his 
authority,  and  on  the  precise  nature  of  the  contract  which  the 
agent  has  lawfully  made.     *     *     *     The  essence  of  such  a  trans- 
action is  that  the  seller,  as  an  ultimate  resource,  looks  to  the 
credit  of  some  one  to  pay  him  if  the  agent  does  not.     Till  the 
agent  fails  in  payment,  the  seller  does  not  want  to  have  recourse 
to  this  additional  credit.     It  remains  in  the  background  :  but  if, 
before  the  time  comes  for  payment,  or  before,  on  non-payment  by 
the  agent,  recourse  can   be  fairly  had  to   the  principal  whose 
credit  still  remains  pledged,  the  principal  can  pay  or  settle  his 
account  with  his  own  agent,  he  will  be    depriving  the  seller 
behind  the  seller's  back  of  his  credit.     It  surely  must,  at  all 
events,  be  the  law  that  in  the  case  of  sales  of  goods  to  a  broker 
the  principal,  known  or  unknown,  cannot,  by  paying  or  settling 
before  the  time  of  payment  comes,  with  his  own  agent,  relieve 
himself   from   responsibility   to   the   seller,   except  in  the  one 
case,  where  exclusive  credit  was  given  by  the  seller  to  the  agent. 
Bat  may  the  payment  or  settlement  to  or  with  the  agent   bo 
safely  made  in  such  a  case  after  the  day  of  payment  has  arrived, 
and  if  so  within  what  time  ?     It  seems  to  me  that  it  can  only 

*  Supra. 
525 


§697.  'I'HiS    LAW    OF    AGENCY.  [DooklV. 

safely  be  made  if  a  delay  has  intervened  which  may  reasonably 
lead  the  principal  to  infer  that  the  seller  no  longer  requires  to 
look  to  the  principal's  credit, — such  a  delay,  for  example,  as  leads 
to  the  inference  that  the  debt  is  paid  by  the  agent,  or  to  the 
inference  that,  though  the  debt  is  not  paid,  the  seller  elects  to 
abandon  his  recourse  to  the  principal  and  to  look  to  the  agent 
alone." 

This  case  (Irvine  v.  Watson),  however,  went  to  the  Court  of 
Appeal '  where,  while  the  result  reached  below  was  affirmed,  the 
court  declare  the  rule  as  laid  down  by  Parke,  B.,  in  Heald  v. 
Ken  worthy,  to  be  the  true  one. 

The  court  did  not  expressly  overrule  Armstrong  v.  Stokes  as 
the  difference  in  the  facts  enabled  them  to  draw  a  distinction 
between  the  cases,  but  Bramwell,  L.  J.,  said :  "  It  is  to  my 
mind  certainly  difficult  to  understand  that  distinction,  or  to  see 
how  the  mere  fact  of  the  vendor's  knowing  or  not  knowing  that 
the  agent  has  a  principal  behind  him  can  affect  the  liability  of 
that  principal.  I  should  certainly  have  thought  that  his  liability 
would  depend  upon  what  he  himself  knew,  that  is  to  say,  whether 
he  knew  that  the  vendor  had  a  claim  against  him  and  would 
look  to  him  for  payment  in  the  agent's  default,"  and  Brett,  L. 
J.,  said  :  "  If  the  case  of  Armstrong  v.  Stokes  arises  again,  we 
reserve  to  ourselves  sitting  here,  the  right  of  reconsidering  it." 
The  distinction  of  Parke,  B.,  was  again  approved  in  Davison  v. 
Donaldson,*  decided  in  the  Court  of  Appeal  in  1882. 

The  result,  therefore,  of  the  English  cases  seems  to  be  to  limit 
the  exception  to  that  first  stated  by  Parke,  B. 

The  subject  has  not  been  much  considered  in  the  United  States 
but  wherever  the  question  has  arisen,  the  tendency  has  been  to 
follow  the  rule  laid  down  by  Judge  Story  and  Prof.  Parsons, 
based  upon  the  dictum  of  Lord  Tenterden.  A  general  state- 
ment of  the  rule  was  made  in  a  recent  case  in  the  New  York 
Court  of  Appeals  with  the  exception,  "  provided  he  has  not  in 
the  meantime  in  good  faith  paid  the  agent,"  *  but  the  state- 
ment was  a  mere  dictum. 

The  rule  of  Parke,  B.,  seems  to  be  eminently  reasonable  and 

»  5  Q.  B.  Div.  414.   29  Eng.   Rep.  See  also  Ketchum  v.  Verdell,  43  Ga. 

871.  534,    Emerson  «.    Patch,    133    Mass. 

«  L   R.  9  Q.  B  Div.  633.  541;  Fradley  v.  Hyland,  37  Fed.  Rep, 

»  Knapp  V.  Simon,  98  N.  T.  384.  49;  Laing  v.  Buller,  37  Hun,  144. 

526 


Oiiap.  V.J        LIABILITY  OF  PRINCIPAL  TO  THIRD   PERSON.  §  698. 

just.  If  a  principal  sends  an  agent  to  buy  goods  for  him  and  on 
fais  account,  it  is  not  unreasonable  that  he  should  see  that 
they  are  paid  for.  Although  the  seller  may  consider  the  agent 
to  be  the  principal,  the  actual  principal  knows  better.  He  can 
easily  protect  himself  by  insisting  upon  evidence  that  the 
goods  have  been  paid  for  or  that  the  seller  with  full  knowledge 
of  the  facts  has  elected  to  rely  upon  the  responsibility  of  the 
agent,  and  if  he  does  not,  but,  except  where  misled  by  some 
action  of  the  seller,  voluntarily  pays  the  agent  without  knowiufy 
that  he  has  paid  for  them,  there  is  no  hardship  in  requiring  him' 
to  pay  again.  If  the  other  party  has  the  right,  witliin  a  reason- 
able time,  to  charge  the  undisclosed  principal  upon  his  discov- 
ery,— and  this  right  seems  to  be  abundantly  settled  in  the  law 
lof  agency — it  is  difficult  to  see  how  this  right  of  the  other  partv 
can  be  defeated,  while  he  is  not  himself  in  fault,  by  dealino-s 
between  the  principal  and  the  agent,  of  which  he  had  no  knowl- 
edge, and  to  which  he  was  not  a  party. 

§  698.  Same  Subject— Of  the  second  Exception.  The  second 
exception  to  the  rule  rests  upon  obvious  grounds.  The  other 
party  is  at  liberty  on  discovering  the  principal,  to  elect  to  hold 
either  the  agent  or  the  principal,  but  he  cannot  hold  both.'  And 
having  once  made  an  affirmative  election  to  hold  the  agent,  he 
cannot  be  permitted  afterwards  to  reverse  his  action  and  pro- 
ceed against  the  principal.  If  the  principal,  being  apprised  of 
the  fact  that  the  other  party  has  elected  to  look  to  the  ao-ent, 
settles  with  the  agent  upon  that  basis  and  either  pays  him  or 
allows  him  a  corresponding  credit,  nothing  could  be  more  unjust 
than  to  permit  the  other  party  afterwards  to  repudiate  his  action 
with  the  agent  and  resort  to  the  principal.* 

*  Paterson  v.  Gandasequi,  15  East.  29  Eng.  Rep.  (Moak)  186;  Armstrong 

63;  Bush  «.    Devine,  5  Harr.    (Del.)  v.  Stokes,  L.  R.  7  Q.   B.  599,  3  Eno-. 

375;  Silver©.  Jordon,  136  Mass.  319;  Rep.    217;  Heald  v.    Kenworthy,  10 

Addison  ?7.  Gandasequi,  4  Taunt,574;  Exch.  739;  Kymer  v.  Suwercropp,  1 

Thomson  v.   Davenport,    9   B.    &  C  Camp.   109;  Macfarlane  ».  Giannaco- 

78;  Schepflin  v.  Dessar,  20  Mo.  App.  pulo,  3  Hurl,  &  Nor.  859;  Clealand  v. 

569.  Walker,  11   Ala.  1058,  40  Am.    Dec. 

'Thomson©.  Davenport,   9  Barn.  238;  Cheever  «.  Smith,  15  Johns.  (N. 

&  Cress.  78;  Horsfall  v.  Fauntleroy,  T.)  276;   Bush  v.    Devine,  5    Har. 

10  Barn.  &  Cress. 755;  Smyth  v.  And-  (Del )  375;  Brown  v.  Bankers  &c.  Tel. 

erson,  7  Com.    Bench.    21;  Irvine   v.  Co.  30  Md.  39;  Schepflin  v.   De.ssar, 

Watson,  Law  Repts.  5Q.B.  Div.  102,  20  Mo.  App.  569;  Hyde  e.  Wolfe,  4 

527 


§  699.  THE   LAW    OF    A.GENOT.  [Book    IT. 

And  these  rules  apply  not  only  to  the  case  where  the  principal 
at  the  time  of  the  dealing  with  the  agent,  was  unknown  or  un- 
disclosed, but  they  apply  equally  where  at  that  time  the  other 
party  knew  both  the  fact  of  the  agency  and  the  name  of  the 
principal.  As  has  been  seen  in  an  earlier  portion  of  this  work,^ 
where  an  agent  acts  in  behalf  of  a  known  principal,  there  is  a 
presumption  that  he  intends  to  charge  that  principal  and  not 
himself.  This  presumption,  however,  is  not  conclusive,  and  the 
agent  is  at  liberty,  if  he  sees  fit,  to  charge  himself  personally. 
E  Gonverso  there  is  a  presumption  that  the  other  party  gave  credit 
to  the  principal  rather  than  to  the  agent,  but  this  presumption  is 
not  indisputable,  and  the  other  party,  knowing  the  principal,  may 
still  elect  to  rely  upon  the  responsibility  of  the  agent  alone. 
Whether  he  has  done  so  or  not  is  a  question  to  be  determined 
from  all  the  facts  and  circumstances  of  the  case.  But  if  it  be 
found  that  he  has  done  so,  his  election  so  to  do  is  conclusive,  and 
he  cannot  afterwards  hold  the  principal.* 

§  699.  Same  Subject— What  constitutes  an  Election.  It  is  im- 
possible to  lay  down  any  general  rule  by  which  it  can,  in  all  cases, 
be  determined,  what  constitutes  an  election  to  hold  the  agent 
only.  The  other  party  may,  of  course,  by  some  express  and 
unequivocal  act,  done  with  that  direct  intent,  declare  his  intention 
to  treat  the  agent  only  as  his  debtor ;  but,  in  the  majority  of  the 
cases,  the  intention  of  the  other  party  is  to  be  gathered  from  his 
words  and  conduct,  and  the  various  circumstances  which  surround 
the  case.  This  much,  however,  may  be  said,  that  if  the  state- 
ments and  conduct  of  the  other  party  have  been  such  as  reason- 
ably to  lead  a  prudent  man  to  the  conclusion  that  the  agent  only 
will  be  held  liable,  and  if  the  principal  acts  in  good  faith  upon 
this  belief,  in  paying,  crediting,  or  settling  with  the  agent,  he 
cannot  afterward  be  held  liable  to  the  other  party.  This  ordi- 
narily is  a  question  of  fact  to  be  determined  by  the  jury,  under 
proper  directions  from  the  court,  from  all  the  facts  and  circum- 
stances which  surround  the  case,'  although  there  may  undoubt- 

La.  234;  23   Am.  Dec.  484;  Horaans  *  Curtis  v.  Williamson.  L.  R.  10  Q. 

c.  Lambard,  21  Me.  398;  Paterson  d.  B.  57,  11  Eng.  Rep.  (Moak)  149;  Cal- 

Gandasequi.   15  East,  62;  Addison  v.  derc.  Dabell,  L.  R.  6  C.  P.  486;  Mer. 

Gandaseqiii,  4  Taunt.  574.  rill  v.  Kenyon,  48  Conn.  314,  40  Am. 

I  Ante,  %  558.  Rep.  174;  Cobb  t>.  Knapp,  71  N.  Y. 

*  Bcbepflin  v.    Dessar,  20  Mo.  App.  348,  27  Am.  Rep.  6L 
569;  Silver  o.  Jordan,  136  Mass.  319. 

528 


Chap.  Y.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PERSON.  §  699. 

edly  be  cases  in  which  the  act  of  the  other  party  in  regard  to  his 
dealings  or  proceedings  with  the  agent,  with  full  knowledge  of 
the  facts  and  with  freedom  of  choice,  may  be  such  as  to  preclude 
him  in  point  of  law  from  afterwards  resorting  to  the  principal. 

But  here,  as  in  other  cases  of  election,  this  full  knowledge  of 
the  facts  and  freedom  of  choice  are,  subject  to  the  exceptiona 
already  stated,  indispensable ;  the  other  party  cannot  be  deemed 
to  have  made  an  election  when  he  had  no  knowledge  that  there 
was  any  choice,  and  this  knowledge  must  include  not  only  the 
fact  of  the  agoncy  but  the  name  of  the  principal.^ 

Thus  the  taking  of  an  agent's  promissory  note  or  acceptance 
for  the  price  of  goods  sold  to  him  by  one  who  knew  he  was  act- 
in  o-  as  asent  but  who  did  not  know  for  whom,  will  not  conclude 
the  seller  from  holding  the  principal  also  when  subsequently 
discovered,'  nor  will  the  fact  that  the  vendor  charged  the  goods 
to  the  acent '  or  sent  him  a  statement  of  the  account  made  out 
in  his  name,*  supposing  him  to  be  the  principal,  prevent  the 
vendor  from  subsequently  charging  the  real  principal  when  ascer- 
tained to  be  such.  So  the  mere  filing  of  an  affidavit  of  proof 
against  the  estate  of  an  insolvent  agent  to  an  undisclosed  princi- 
pal, after  that  principal  was  discovered,  is  not  conclusive  evidence 
of  an  election  to  treat  the  agent  only  as  the  debtor.* 

Nor  can  the  mere  commencement  of  an  action  against  the 
agent,  after  the  discovery  of  the  principal,  be  deemed  conclusive 
of  such  an  election.*  In  such  a  case  it  has  been  held  that 
nothing  less  than  satisfaction  would  discharge  either.' 

»  Curtis  t>.  Williamson,  L.  R.  10  Q..  •  Raymond  v.  Crown,  &c.  Mills,  3 

B.  57,  11  Eng.    Rep.    149;  Merrill  v.  Mete.  (Mass.)  319;  French  v.  Price, 

Kenyon,  48  Conn.  314,  40  Am.  Rep.  24  Pick.  (Mass.)  13;  Guest  v.  Burling- 

174.  ton  Opera  House  Co.,  —  Iowa  — ,  38 

2  Merrill  v.  Kenyon,  supra;  Pope  v.  N.  W.  Rep.  158. 

Meadow,  «fec. Co.,  20  Fed.  Rep.  35.  "If  <  Henderson   v.   Mayhew,    2    Gill. 

the  vendor  on  a  sale  made  to  an  agent,  (Md.)  393,  41  Am.  Dec.  434. 

take  the  promissory  note  of  the  agent  •  Curtis  v.  Williamson,  L.  R.  10  Q. 

for  the  amount  of  the  purchase,   on  B.  57,  11  Eng.  Rep.  149. 

failure  of  payment  by  the  agent,  the  «  Cobb  v.  Knapp,  71  N.  Y.  348,  27 

principal  would  be  equally  liable  to  Am.  Rep.  51;  Curtis  v.  Williamson, 

an   action    by  the  vendor,   founded  supra ;  Raymond  v.  Crown,  &c.  Mills, 

upon  the  original  consideration,  as  if  2  Mete.  (Mass.)  319;  Ferry  v.  Moore, 

the  note  had  beeu  given  by  the  plain-  18  111.  App.  135. 

tiff    himself."     Keller  v.    Singleton,  '  Beymer  v.  Bonsall,  79  Penn.  St. 

69  Ga.  703.  298;  Maple  v.  Railroad  Co.,  40  Ohio 

Si  529 


8  700.  THE   LAW    OF    AGENOT.  [Book  IV. 

These  facts,  however,  are  proper  to  be  taken  into  consideration, 
with  others,  in  determining  the  question  of  the  election. 

But  where  the  creditor  with  knowledge  of  the  principal's  lia- 
bility sees  fit  to  take  the  individual  note  of  the  agent,  without 
taking,  at  the  time  of  the  transaction,  any  steps  indicative  of  an 
intent  to  hold  the  principal,  this  is  equivalent  to  a  discharge  of 
the  principal  as  a  matter  of  law.'  And  the  case  is  much  stronger 
where  after  the  taking  of  the  note  and  before  any  claim  is  made 
upon  the  principal,  the  latter  has  paid,  credited  or  settled  with 
the  agent," 

§  700.  Same  Subject— Election  must  be  made  witliin  a  reason- 
able Time.  This  right  of  the  other  party  to  hold  the  principal 
when  discovered,  must  be  exercised  within  a  reasonable  time  after 
he  is  disclosed,  and  if  not  so  exercised  it  will  be  deemed  to  be 
waived.'  What  is  a  reasonable  time,  in  this  as  in  other  cases,  is 
a  question  to  be  determined  with  reference  to  all  of  the  facts  and 
circumstances  of  the  case. 

§  701.  Rule  applies  to  all  simple  Contracts.  This  rule  applies 
to  all  simple  contracts  whether  written  or  unwritten,  entered  into 
by  an  agent  in  his  own  name  and  within  the  scope  of  his  au- 
thority, although  the  name  of  the  principal  does  not  appear  in 
the  instrument,  and  was  not  disclosed,  and  although  the  party 
dealing  with  the  agent  supposed  that  the  latter  was  acting  for 
himself  ;*  and  this  rule  obtains  as  well  in  respect  to  contracts 
which  are  required  to  be  in  writing,  as  those  to  whose  validity  a 
writing  is  not  essential.' 

St.  313,  48  Am.  Rep.  685.     But  see  «  Schepflia  c.  Dessar,  20  Mo.  App. 

Priestley  p.  Pernie,  3   H.    &  0.  977;  569;  see  cases  cited  to  note  3  of  pre- 

Paterson  v.  Qandasequi,  15    East  63.  ceding  section. 

»  Ames  Packing  &  Prov.    Co.    v.  »  Smetburst  v.   Mitchell,    1  Ell.    & 

Tucker,  8  Mo.  App.    95;  Addison  v.  Ell.  623;  Curtis©.  Williamson,  L.  R 

Gandasequi,  4  Taunt   574,  3  Smith's  10  Q.  B.  57,  11  Eng  Rep.  149;  Irvine 

L.  C.  860;    Paterson   v.  Gandasequi,  v.  Watson,  5  Q.  B.  Div.  103,  29  Eng. 

15  East  63,  2   Smith's   L.   Cas.   360;  Rep.  186. 

Paige  V.  Stone,  10  Mete.  (Mass.)  160,  <  Briggs  v.  Partridge.  61  N.  T.  357, 

43  Am.  Dec.  430;  Wilkins  v.  Reed,  6  21  Am.   Kep.  617;  Dykers  v.   Town- 

Greenl.  (Me.)  220,   19  Am.  Dec.  211;  send,  34  N.  Y    61;  Coleman  ».  First 

French®.  Price,  24  Pick.  (Mass.)  13;  Nat.  Bank,   53  N    Y.    393;  Ford  v. 

Green  v.  Tanner,  8  Mate.  (Mass.)  411;  Williams,  21  How.  (U.  S  )  289. 

Chapman  v.   Duniut,    10    Mass.    47;  s  Borcherling  «;.  Katz,  37  N.  J.  Eq. 

Tudor  t>.    Whiting,    13    Mass,    312;  150;  Briggs ».  Partridge,  sw^^ra. 
James  v.  Bixby,  11  Mass.  34. 

630 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  702. 

It  does  not  violate  the  principle  which  forbids  the  contradiction 
of  a  written  agreement  by  parol  evidence,  nor  that  which  for- 
bids the  discharging  of  a  party  by  parol  from  the  obligations  of 
his  written  contract.  The  writing  is  not  contradicted,  nor  is  the 
agent  discharged;  the  result  is  merely,  that  an  additional  party 
is  made  liable.  It  is  said  by  a  learned  judge  in  a  Massachusetts 
case  :  "  Whatever  the  original  merits  of  the  rule  that  a  party  not 
mentioned  in  a  simple  contract  in  writing  may  be  charged  as  a 
principal  upon  oral  evidence,  even  where  the  writing  gives  no 
indication  of  an  intent  to  bind  any  other  person  than  the  signer, 
<ve  cannot  reopen  it,  for  it  is  as  well  settled  as  any  part  of  the 
law  of  agency." ' 

§  702.  Does  not  apply  to  Contracts  under  Seal— When.  It  is 
d  fundamental  principle  of  common  law  that,  upon  an  instru- 
ment under  seal,  those  persons  only  can  be  charged  who  appear 
upon  its  face  to  be  the  parties  to  it.*  This  principle,  however,  as 
has  been  seen,  has  been  modified  in  modern  times  in  respect  to 
those  instruments  to  the  validity  of  which  a  seal  was  not  required, 
though  they  were  in  fact  sealed.  In  regard  to  such  instruments 
a  decided  tendency  has  been  manifested  to  regard  the  seal,  in  cer- 
tain cases,  as  mere  surplusage  and  to  reject  it  as  such. 

It  may  therefore  be  said  to  be  the  rule  that  where  the  seal  was 
not  essential  to  the  validity  of  the  contract,  if  the  interest  of 
the  principal  appears  upon  its  face,  or  if  it  has  been  ratified  and 
confirmed  by  him,  and  if  he  has  received  and  accepted  the  bene- 
fits of  the  performance  of  the  other  party,  the  principal  may  be 
held  liable  in  assumpsit  upon  the  promise  contained  in  the  instru- 
ment, which  may  be  resorted  to,  to  ascertain  the  terms  of  the 
agreement.' 

'  Holmes,  J.,  in  Byington  ».  Simp-  deed,      under     seal,     on    technical 

«on,  134  Mass.  1G9,  45  Am.  Rep.  314,  grounds,  no  one  but  a  party  to  the 

citing  Huntington  v.  Knox,  7  Cush.  deed  is  liable  to  be  sued  upon  it,  and, 

(Mass.)  871 ;  Eastern  R.    R.   v.  Bene-  therefore,  if  made  by  an  attorney  or 

diet,  5   Gray  (Mass.)  561;  Lerned  v.  agent,  it  must  be  made  in  the  name 

Johns.  9  Allen   (Mass.)  419;  Hunter  of  the  principal,  in  order  that  he  may 

^.  Giddings,  97  Ma'^s.  41;  Exchange  be  a  party,  because  otherwisa  he  is 

Baakfl.  Rice,  107  Mass.    37,   9   Am.  not  bound  by  it."    Shaw,   C.    J.,  in 

Rep.  1;  National  Ins.   Co.  v.    Allen,  Huntington  o.  Knox,  7  Cush.  (Mass.) 

116  Mass.  398;  Higgina  v.  Senior,  8  374. 

M.  &  W.  834.  '  Briggs  v.  Partridge,  64  N.  Y.  357, 

«"  Where   a  contract  is  made  by  21  Am.  Rep.  617;  Stowell ».  Eldred, 

531 


i02. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


But  where  a  contract  under  seal  is  made  with  the  agent  alone, 
the  fact  of  the  agency  or  the  name  of  the  principal  not  being 
known  or  disclosed,  and  the  contract  remaining  executory,  the 
principal  who  has  neither  ratified  it,  nor  received  the  benefit  of  it 
cannot  be  held  even  though  the  seal  was  not  essential.' 


;;9  Wis.  614;  Randall  v.  VanVechten, 
19  Johns.  (N.  Y.)  60,  10  Am.  Dec. 
193;  Worrall  v.  Munn,  5  N.  Y.  229, 
05  Am.  Dec.  330;  DuBois  v.  Dela- 
ware &  Hudson  Caoal  Co.,  4  Wend. 
(N.  Y.)  2S5;  Lawrence  v.  Taylor,  5 
Hill  (N.  Y.)  107i  Moore  t).  Granby 
Mining  Co.,  80  Mo.  86. 

>  Briggs  V.  Partridge,  64  N.  Y.  357, 
21  Am.  Rep.  617,  is  a  leading  case. 
In  tlxis  case  it  appeared  that  an  agent 
appointed  by  parol,  had,  without  dis- 
closing his  agency,  made  in  his  own 
name  a  contract  under  seal  for  the 
!  urchase  of  real  estate,  but  it  was 
iield  that  the  contract  was  not  en- 
forceable against  the  principal  either 
HS  a  contract  under  seal  or  as  a  simple 
contract.  Andkews,  J.,  said:  "Can 
a  contract  under  seal,  made  by  an 
agent  in  his  own  name  for  the  pur- 
chase of  land,  be  enfcrced  as  the  .sim- 
ple contract  of  the  real  principal 
when  he  shall  be  discovered?  No 
authority  for  this  broad  proposition 
has  been  cited.  There  are  cases 
which  hold  that  when  a  sealed  con- 
tract has  been  executed  in  such  form 
that  It  is,  in  law,  the  contract  of  the 
agent  and  not  of  the  principal,  but 
the  principal's  interest  in  the  contract 
appears  upon  its  face,  and  he  has  re- 
ceived the  benefit  of  performance  by 
the  other  party,  and  has  ratified  and 
confirmed  it  by  acts  in  pais,  and  the 
contract  is  one  which  would  have 
been  valid  without  a  seal,  the  princi- 
pal may  be  made  liable  in  assumpsit 
upon  the  promise  contained  in  the  in- 
strument, which  may  be  resorted  to 
to  ascertain  the  terms  of  the  agree- 
ment   •    •    • 


The  plaintiff's  agreement  in  this 
case  was  with  Hurlburd  (the  agent) 
and  not  with  the  defendant.  The 
planliff  has  recourse  against  Hurlburd 
on  his  covenants,  which  was  the  only 
remedy  which  he  contemplated  when 
the  agreement  was  made.  No  ratifi- 
cation of  the  contract  by  the  defend- 
ant is  shown.  To  change  it  from  a 
specialty  to  a  simple  contract,  in 
order  to  charge  the  defendant,  is  to 
make  a  different  contract  from  the 
one  the  parties  intended.  A  seal  has 
lost  most  of  its  former  significance, 
but  the  distinction  between  specialties 
and  simple  contracts  is  not  obliter- 
ated. A  seal  is  still  evidence,  though 
not  conclusive,  of  a  consideration. 
The  rule  of  limitation  in  respect  to 
the  two  classes  of  obligations  is  not 
the  same.  We  find  no  authority  for 
the  proposition  that  a  contmct  under 
seal  may  be  turned  into  the  simple 
contract  of  a  person  not  in  any  way 
appearing  on  its  face  to  be  a  party  to, 
or  interested  in  it,  on  proof  de  hors  the 
instrument,  that  the  nominal  party 
was  acting  as  the  agent  of  another, 
and  especially  in  the  absence  of  any 
proof  that  the  alleged  principal  has 
received  any  benefit  from  it,  or  has 
in  any  way  ratified  it,  and  we  do  not 
feel  at  liberty  to  extend  the  doctrine 
applied  to  simple  contracts  executed 
by  an  agent  for  an  unnamed  princi- 
pal, so  as  to  embrace  this  case."  See 
also  Tuthill  v.  Wilson,  90  N.  Y.  423. 

So  the  rule  that  an  unnamed  and 
unknown  principal  shall  stand  liable 
for  the  contract  of  his  agent,  does 
not  apply  to  a  lease  under  seal.  The 
relation  between  the  owner  of  land 


532 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  705. 

2.     The  Liability  of  a  Disclosed  Principal. 
a.    For  Agent's  Acts  and  Contracts. 

§  703.  In  general.  In  an  earlier  portion  of  this  work  the 
questions  of  what  constitutes  the  authority  of  an  agent,*  how  it 
should  be  interpreted  and  construed/  and  how  it  should  be  ex- 
ecuted,' have  been  considered  at  some  length.  It  remains  now 
to  apply  the  principles  there  laid  down  to  the  question  of  the 
liability  of  the  principal  for  the  acts,  contracts,  and  declarations 
of  the  agent  made  or  done  in  the  actual  or  assumed  exercise  of  that 
authority. 

§  704.  Principal  liable  for  Agent's  Aots  and  Contracts  in  Ex- 
ecution of  Authority.  It  is  the  fundamental  principle  of  the  law 
of  agency,  that  what  one  person  does  for  and  by  the  authority  of 
another  is  to  be  considered  as  the  act  of  that  other.  The  prin- 
ciple has  taken  the  form  of  the  familiar  maxim  Qui  faoit  per 
alium,  facit  per  se.  That  this  should  be  so,  is  an  obvious  natu- 
ral and  moral  necessity  as  well  as  a  legal  one,  founded  upon  mani- 
fest doctrines  of  good  faith  and  moral  and  legal  responsibility. 
That  it  is  not,  however,  a  principle  of  unlimited  application  in 
the  law  of  agency,  has  already  been  shown.*  It  is  not  every  act 
done  by  one  person  for  another  which  is  binding  upon  the  latter. 
The  act  done  must  have  been  a  lawful  one,  done  in  the  name  and 
behalf  of  that  other,  and  by  his  express  or  implied  authority. 
What  acts  are  lawful  to  be  done  by  an  agent  have  been  deter- 
mined.' 

§  705.  Same  Subject— The  Rule  stated.  Out  of  these  princi- 
ples grows  the  general  rule  that  the  lawful  acts  and  contracts  of 
the  agent,  done  or  made  for  the  principal  and  in  his  behalf,  are 
binding  upon  the  principal  if  so  done  or  made  by  the  agent  while 

and  those  who  occupy  it  is  of  a  purely  money  to  pay  the  rent.     Kiersted  «. 

legal  character,  and  the  fact  that  a  Orange,  &c.  R.  R.  Co.,  69  N.  Y.  343, 

lessee  takes  a  lease  for  an  unnamed  25  Am.  Rep.  199;  Taft  v.  Brewster,  9 

principal,  but  in  his  own  name,  will  Johns.  (N.  Y.)  334,  6  Am.  Dec.  280; 

not  render  the    unnamed    principal  Stone  v.  Wood,  7   Cow.  (N.  Y.)  453, 

liable  for  the  rent.     Borcherliug  v.  17  Am.  Dec.  529;  Guyon  v.  Lewis,  7 

Katz,  37  N.  J.  Eq.  150,  although  the  Wend.  (N.  Y.)  26. 

fact  of  the  agency  is  recited  and  it  *  See  ante,  §  271  et  seq. 

extrinsically  appears  that  the  lessee  *  See  ante,  §  293  et  seq. 

acted  as  agent  and  although  the  prin-  •  See  ante,  %  407  et  seq. 

cipal  occupies  the  premises  without  <  See  ante,  §^  275-291. 

assignment  of  the  lease  and  furnishes  »  See  ante,  §  18  et  seq. 

533 


§  706.  THE    LAW    OF    AGENCY.  [Book    IV. 

he  was  acting  in  the  course  of  liis  undertaking  and  within  the  ap- 
parent scope  of  his  authority,'  or  if  they  have  subsequently,  with 
full  knowledge  of  the  facts,  been  ratified  and  confirmed  by  the 
principal.* 

The  converse  of  this  rule  follows  as  a  necessary  consequence. 
If  the  act  done  or  contract  made  was  not  a  lawful  one,  the  law, 
as  has  been  seen,  will  not  enforce  it.'  If  the  agent  acted  for  him- 
self and  in  his  own  behalf  instead  of  for  his  principal,  and  the 
other  party  with  full  knowledge  so  dealt  with  him,  the  principal 
is  not  liable.*  If  the  agent  were  not  acting  in  the  course  of  his 
principal's  business,  but  was  acting  entirely  outside  of  that,  and 
for  some  purpose  of  his  own,  the  act  is  not  the  principal's,  unless 
he  has  adopted  it.*  If  the  act  done  or  contract  made  was  not 
within  the  scope  of  his  authority,  but  exceeded  or  disregarded 
it,  then  no  liability  attaches  to  the  principal,  unless  he  voluntarily 
affirms  and  ratifies  it* 

Some  of  these  rules  deserve  and  will  receive  a  fuller  consider- 
ation. 

§  706.  Third  Person  m\xst  ascertain  Agent's  Authority, 
Every  person  dealing  with  an  assumed  agent  is  bound,  at  his 
peril,  to  ascertain  the  nature  and  extent  of  the  agent's  authority. 
The  very  fact  that  the  agent  assumes  to  exercise  a  delegated 
power  is  sufficient  to  put  the  person  dealing  with  him  upon  his 
guard,  to  satisfy  himself  that  the  agent  really  possesses  the  pre- 
tended power.' 

If,  having  relied  upon  it,  he  seeks  to  hold  the  alleged  principal 
responsible,  he  must  be  prepared  to  prove,  if  either  be  denied, 
not  only  that  the  agency  existed,  but  that  the  agent  had  the 
authority  which  he  exercised." 

§  707.  What  constitutes  Authority.  An  attempt  has  been 
made  in  an  earlier  portion  of  the  work  to  show  what  constitutes 
authority.*  It  has  been  seen  that  it  is  a  composite  matter  into 
which  a  number  of  different  elements  may  enter.'"  All  authority 
emanates  from  the  principal,  who  may  confer  as  little  or  as  much 
as  suits  his  purposes,  and  unless  an  alleged  authority  can  be  traced 

»  Ante,  %%  275-291.  •  See  post,  %%  706-711. 

«  See  Book  I,  Chap.  V.  of  Ralifica-  »  See  ante,  §§  288-291. 

tion.  •  See  ante,  %  276. 

«  See  ante,  %%  275-391.  •  See  ante,  %  282. 

«  See  ante,  §§  698-700.  "  See  ante,  %  283. 
•  See  post,  §§  733-742. 

534 


Chap.  Y.]        LIABILITY  OF  PRINCirAL  TO  THIRD    PERSON.  §  703. 

home  to  him  as  its  author  and  its  source,  it  can  not  operate 
against  hira.  It  rests  upon  liis  will  and  intention.  That  will 
and  intention  may  find  expression  in  words,  but  it  may  also  be 
declared  by  conduct.  The  authority  of  the  agent,  then,  so  far  as 
third  persons  are  concerned,  is  as  broad  not  only  as  the  words  of 
the  principal,  but  as  broad  also  as  his  acts  and  conduct.  In  other 
phrase,  it  is,  so  far  as  third  persons  are  concerned,  as  broad  as  the 
principal  has  made  it  appear  to  be.^  As  respects  the  mutual 
rights  and  dealings  of  the  principal  and  agent,  the  actual  author- 
ity may  govern ;  but  as  respects  the  liability  of  the  principal  to 
third  persons  for  the  acts  and  contracts  of  the  agent,  it  is  the 
apparent  authority  which  controls.  This  apparent  authority 
may  be  the  result  of  his  negligent  act — of  his  omission,  silence, 
or  acquiescence.'  Every  person  is  presumed  by  law  to  contem- 
plate and  intend  the  natural,  proximate  and  legitimate  results  of 
his  own  acts,  and  he  cannot  avoid  them  by  asserting  that  he  did 
not  really  intend  or  contemplate  them.  If  the  principal  leads 
third  persons,  acting  reasonably  and  in  good  faith,  to  believe  that 
his  agent  possesses  a  certain  authority,  then,  as  to  them,  he  does 
possess  it.* 

§  708.  Same  Subject— Secret  Instructions  and  Restrictions. 
As  has  been  seen,  however,  the  agent's  authority  is  not  unlim- 
ited. The  principal  may  impose  upon  it  as  many  limitations  and 
restrictions  as  he  thinks  best,  and  these  limitations  and  restric- 
tions are  binding  upon  third  persons  if  they  have  notice  of  them 
or  might  with  reasonable  diligence  have  ascertained  them.*  The 
principal  cannot,  however,  expect  third  persons  to  have  notice  of 
limitations  and  restrictions  which  are  in  their  nature  secret  and 
undisclosed.  And  while,  as  has  been  stated,  persons  dealing  with 
the  agent  are  bound  to  know  the  extent  of  his  authority,  they 
may  reasonably  take  the  visible  and  apparent  interpretation  of 
that  authority  by  the  principal  himself  as  the  true  one,  and  as 
the  one  by  which  he  chooses  to  be  bound.  It  is  therefore  the 
rule  of  the  law  that  the  rights  of  third  parties,  who  have  reason- 
ably and  in  good  faith  relied  upon  the  apparent  authority  of  the 
agent,  cannot  be  prejudiced  by  secret  limitations  or  restrictions 
upon  it  of  which  they  had  no  notice.* 

»  See  anU,  §§  283-285.  <  See  ante,  §  279. 

»  See  anU,  §  282.  •  See  ante,  §  279. 

»  See  ante,  §§  282-285. 

535 


§   709.  THE    LAW    OF    AGENCY.  [Book  lY. 

^709.  General  and  special  Agents.  These  principles  apply  to 
all  agents  whether  they  be  general  or  special.  It  is  true,  of 
course,  that  the  scope  of  the  general  agent's  authority  is,  from 
the  very  nature  of  the  case,  wider  and  more  flexible  than  that  of 
the  special  agent.  The  latter  is  essentially  and  necessarily  lim- 
ited and  restricted.  In  the  former  case,  particular  instructions  are 
unusual ;  in  the  latter,  they  are  expected.  In  each  case  the  actual 
authority  will  be  the  apparent  authority,  unless  the  principal 
gives  to  the  apparent  authority  a  wider  scope.  In  neither  case 
can  the  apparent  authority  be  controlled  by  secret  limitations. 
The  true  distinction  between  general  and  special  agents  lies  then, 
as  has  been  stated,  in  this,  that  the  apparent  scope  of  the  special 
authority  is  naturally  and  necessarily  a  limited  one.  Of  these 
limitations,  its  very  nature  gives  peculiar  warning  to  which  the 
persons  interested  must  give  heed.' 

§  710.  Same  Subject— Special  Agent's  Autliority  must  be 
strictly  pursued.  When,  therefore,  it  is  said  that  the  act  of  the 
agent  must  be  within  the  scope  of  his  authority  in  order  to  be 
binding  upon  the  principal,  the  statement  applies  alike  to  general 
and  special  agents.  None  the  less  true  on  this  account,  however, 
is  the  well  settled  and  often  asserted  rule  that  the  authority  of 
the  special  agent  must  be  strictly  pursued.  It  is  in  its  nature 
limited,  and  these  limits  may  not  be  exceeded.' 

§  711,  Effect  of  Ratification.  Although  the  agent  may  have 
acted  beyond  the  scope  of  his  authority,  or  may  have  acted  with- 
out any  authority  at  all,  the  principal  may  yet  subsequently  see 
fit  to  recognize  and  adopt  the  act  as  his  own.  This  recognition 
and  adoption  is  termed  ratification,  the  doctrine  of  which  has 
been  hereinbefore  discussed.'  By  such  ratification,  as  has  there 
been  seen,  the  principal  accepts  the  act  with  its  burdens  and 
responsibilities  precisely  as  though  he  had  previously  authorized 
it.* 

§  712.  Performance  of  unlawful  Act  not  enforced.  No  con 
tract  for  the  performance  of  an  act  which  is  either  illegal  in  itself 
or  which  is  opposed  to  public  policy,  will  be  enforced.*  No  author- 
ity to  make  any  such  contract  or  to  perform  any  such  act  can, 

»  See  ante,  §  285.  *  See  ante,  Idem. 

s  See  ante,  §  288.  »  See  ante,  %  18  et  seq. 

3  See  ante,  chapter  oq  Ratification. 

536 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  714. 

as  has  been  seen/  be  lawfully  delegated.  And  even  though  the 
agent  deeming  himself  authorized  should  perform  the  act  or 
execute  the  contract  with  all  formalities,  yet  such  performance 
or  such  contract  will  furnish  no  ground  of  action.  The  law 
leaves  all  such  parties  where  it  finds  them.' 

§  713.  Principal  not  bound  where  Agent  had  an  adverse 
Interest.  As  has  been  seen,  the  principal  is  entitled  to  demand 
and  receive  from  the  agent  a  loyal,  zealous  and  disinterested  ser- 
vice. He  presumptively  contracts  for  the  exercise  of  all  the 
agent's  skill,  knowledge  and  ability  in  his  own  behalf  and  for  his 
own  advantage,  and  the  policy  of  the  law  will  not  tolerate  the 
existence  of  a  secret  and  undisclosed  interest  in  the  agent  antago- 
nistic to  that  of  his  principal,  on  account  of  the  temptation 
offered  to  the  agent  to  sacrifice  the  principal's  interests  to  his 
own.  The  principal  may,  if  he  sees  fit,  intrust  his  interests  in 
the  hands  of  an  agent  whom  he  knows  to  also  have  an  interest  iu 
the  same  transaction  which  is  or  may  be  adverse  to  his  own. 
But  this  is  not  to  be  presumed,  and  it  must  appear  that  the  inter- 
est of  the  agent  was  fully  and  fairly  disclosed  to  the  principal.* 

Where,  therefore,  the  agent  while  ostensibly  acting  only  for 
his  principal,  is  secretly  acting  as  the  agent  of  the  other  party,  or 
is  himself  the  other  party,  the  acts  done  or  contracts  made  by 
him  will  not  be  binding  upon  the  principal  if  he  sees  fit  to 
repudiate  them.* 

This  rule  is  frequently  applied  to  the  case  of  the  agent  who, 
while  apparently  acting  only  for  his  principal  in  the  purchase 
or  sale  of  property,  is,  in  reality,  acting  under  the  commission  of 
the  contemplated  purchaser  or  seller,  and  more  often,  to  the  case 
of  the  agent  who,  being  authorized  to  sell  or  buy  property  for 
the  principal,  secretly  sells  to  or  buys  of  himself. 

b.    For  the  Agent's  Statements  and  Representations. 
§  714.     When  Agent's  Admissions  and  Representations  bind- 
ing on  Principal.     The  statements,  representations   and  admis- 
sions  of  the   agent,  made   in    reference  to  the  act  which  he  is 

'  See  ante,  §  30  et  seq.  neau,  I  Wis.  151,  60  Am.  Dec.  368; 

«  See  ante,  %  20.  Switzer  v.  Skiles,  3   Gilm.   (111.)  539, 

^  Sue  ante,  %  '^oi  et  seq.  44  Am.    Dec.    723;  Harrison  v.    Mc- 

<  Wassell  V.  Rcardon,  11  Ark.  705,  Henry,  9  Ga.  164,  52  Am.   Dec.  435. 

54  Am.  Dec.  245;  Herman  v.  Marti-  See  a.\so  post,  §§797,  798. 

537 


§TU. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


authorized  to  perform  and  while  engaged  in  its  performance, 
are  binding  upon  the  principal  in  the  same  manner  and  to  the 
same  extent  as  the  agent's  act  or  contract  under  like  circum- 
stances, and  for  the  same  reason.  While  keeping  within  the 
scope  of  his  authority  and  engaged  in  its  execution,  he  is  the 
principal,  and  his  statements,  representations  and  admissions  in 
reference  to  his  act  are  as  much  the  principal's  as  the  act  itself. 
Such  statements,  representations  and  admissions  are  therefore 
admissible  in  evidence  against  the  principal  in  the  same  manner 
as  if  made  by  the  principal  himself.' 


1  "  The  acts  of  an  agent,"  said  Mr. 
Justice  Harlait  in  a  recent  case, 
"  within  the  scope  of  the  authority 
delegated  to  him,  are  deemed  the 
acts  of  the  principal.  Whatever  he 
does  in  the  lawful  exercise  of  that 
authority,  is  imputable  to  the  princi- 
pal, and  may  be  proven  without  call- 
ing the  agent  as  a  witness.  So  in 
consequence  of  the  relation  between 
him  and  the  principal,  his  statement 
or  declaration  is,  under  some  circum- 
stances, regarded  as  of  the  nature  of 
original  evidence,  'being  '  says  Phil- 
lips, '  the  ultimate  fact  to  be  proved 
and  not  an  admission  of  some  other 
fact.'  1  Phil.  Ev.  381.  '  But  it  must 
be  remembered,'  says  Greenleap, 
'that  the  admission  of  the  agent  can 
not  always  be  assimilated  to  the  ad- 
mission of  the  principal.  The  party's 
own  admission,  whenever  made,  may 
be  given  in  evidence  against  him; 
but  the  admission  or  declaration  of 
his  agent  binds  him  only  when  it  is 
made  during  the  continuance  of  the 
agency,  in  regard  to  a  transaction 
then  depending,  et  dum  fervet  opus. 
It  is  because  it  is  a  verbal  act,  and 
part  of  the  res  gesim  that  it  is  admissi- 
ble at  all;  and,  therefore,  it  is  not 
necessary  to  call  the  agent  to  prove 
it;  but  wherever  what  he  did  is  ad- 
missible in  evidence,  there  it  is  com- 
petent to  prove  what  he  said  about 
the  act  while  Tie  was  doing  it.'  1  Qreeal. 


Ev.  §  113.  This  court  had  occasion 
in  Packet  Co.  v.  Clough,  20  Wall. 
540  to  consider  this  question.  Refer- 
ing  to  the  rule  as  stated  by  Mr  Jus- 
tice Story  in  his  treatise  on  Agency, 
§  134,  that  'where  the  acts  of  the 
agent  will  bind  the  principal,  there 
his  representations,  declarations  and 
admissions  respecting  the  subject- 
matter  will  also  bind  him,  if  made  at 
the  same  time  and  constituting  part  of 
the  res  gestae.'  The  court  speaking  by 
Mr.  Justice  Strong,  said,  '  a  close 
attention  to  this  rule,  which  is  of 
universal  acceptance,  will  solve  al- 
most every  difficulty.  But  an  act 
done  by  an  agent  cannot  be  varied, 
qualified  or  explained,  either  by  hia 
declarations,  which  amount  to  no 
more  than  a  mere  narrative  of  a  past 
occurrence,  or  by  an  isolated  conver- 
sation held,  or  an  isolated  act  done, 
at  a  later  period.  The  reason  is  that 
the  agent  to  do  the  act  is  not  author- 
ized to  narrate  what  he  had  done,  or 
how  he  had  done  it,  and  his  declara- 
tion is  no  part  of  the  res  gestce.'" 
Vicksburg  &c.  R.  R.  v.  O'Brien,  119 
U.  S.  99. 

That  the  statements,  representa- 
tions and  admission  of  the  agent 
made  while  acting  within  the  scope 
of  his  authority  and  in  reference  to 
the  business  which  he  is  employed  to 
transact,  may  be  received  in  evidence 
against  the  principal,  see  Perkins  o. 


638 


Chap,  v.]         LIABIMTY  OF  PRINCIPAL  TO  TIIIKD    PKUSON.  §  714. 


But  it  is  obvious  from  this  statement  of  the  rule  that  not 
every  statement,  representation  or  admission  which  the  agent 
may  choose  to  make  is  binding  upon  the  principal  In  order  to 
have  that  eSect,  the  statement  or  admission  must  have  been 
made,  (1)  in  respect  to  a  matter  within  the  scope  of  his  authority. 
The  term  authority  as  here  used  has  the  same  significance  wliicli 
it  has  in  reference  to  the  agent's  act  or  contract.  If,  therefore, 
the  statements,  representations  or  admissions  offered  in  evidence 
were  made  by  one  who  either  had  no  authority  at  all,  or  had  no 
authority  to  represent  the  principal  in  the  matters  concerning 
which  they  were  made,  they  are  not  admissible  against  the  prin- 
cipal.^     So,    (2)  the  statements,    representations   or   admissions 


Bennett,  2  Root  (Conn.)  30;  Mather  v. 
Phelps,  2  Id.  150,  1  Am.  Dec.  65; 
Haven  v.  Brown,  7  Greenl.  (Me.)  421, 
22  Am.  Dec.  208;  Stockton  v.  De- 
muth,  7  Watts.  (Penn.)  39,  32  Am. 
Dec.  735;  Franklin  Bank  v.  Pennsyl- 
vania &c.  Co.  11  Gill  .&  John.  (Md.) 
28.  33  Am.  Dec.  687;  Stiles  v. 
Western  R.R.  Co.,  8  Mete.  (Mass.)  44, 
41  Am.  Dec.  486;  Ball  v.  Bank  of 
Alabama,  8  Ala.  590,  42  Am.  Dec. 
649;  Hammatt  «.  Emerson,  27  Me. 
308,  46  Am.  Dec.  598;  Cunningham 
V.  Cochran,  18  Ala,  479,  52  Am.  Dec. 
230;  Moore  v.  Bettis,  11  Humph. 
(Tenn.)  67,  53  Am.  Dec.  771;  Innis  v. 
Steamer  Senator,  1  Cal.  459,  54  Am. 
Dec.  305;  Burnham  v.  Ellis,  39  Me. 
319;  63  Am.  Dec.  625;  Tuttle  v. 
Brown,  4  Gray  (Mass.)  457,  64  Am. 
Dec.  80;  Dick  ». Cooper,  24  Penn.  St. 
217,  64  Am.  Dec.  652;  Coweta  Falls 
Miif'g  Co.  V.  Rogers,  19  Ga.  416;  65 
Am.  Dec.  602;  Burnside  v.  Grand 
Trunk  Ry  Co.  47  K  H.  554,  93  Am. 
Dec.  474:  Bass  v.  Chicago  &  N.  W. 
Ry  Co.,  42  Wis.  654,  24  Am.  Rep. 
437;  Anderson  v.  Rome  &c.  R.  R.Co., 
54  N.  Y.  334;  White  v.  Miller,  71  N. 
Y.  118;  Pinnix  v.  McAdoo,  68  N.  C. 
56;  Willard  v.  Buckingham,  36  Conn. 
395;  Robinson  v.  Walton,  58  Mo. 
380;  Linblomo.  Ramsey,  75  111.  246; 
Lafayette  «fec.  R.  R.  Co.  v.   Ehman, 


30  Ind.  83,  Rowell  «.  Klein,  44  Ind. 
290;  Burnham  v.  Grand  Trunk  Ry 
Co.  63  Me.  298;  Campbell  «.  Hast- 
ingjs,  29  Ark.  512;  Ashmore  v.  Penn. 
Steam  Towing  Co.  38  N.  J.  L.  13; 
Dickmaa  v.  Williams,  50  Miss.  500; 
Galceran  v.  Noble,  66  Ga.  367;  Mu- 
tual Ben.  L.  Ins.  Co.  v.  Cannon,  48 
Ind.  264;  Chorpenning  v.  Royce,  58 
Penn.  St.  476;  Stewartson  ®.  Watts,  8 
Watts  (Penn.)  392;  City  Bank  v. 
Bateman,  7  Har.  &  J.  (Md.)  104; 
Central  Branch  U.  P.  R.  R.  Co.  v. 
Butman,  22  Kan.  639;  Merchants  &c. 
Trans.  Co.  v.  Leysor,  89  111.  43;  Wil- 
son Sew.  Mach.  Co.  v,  Sloan,50  Iowa 
367;  McCormick  v.  Demary,  10  Neb. 
515;  Dowdall  v,  Pennsylvania  R.  R. 
Co.  13Blatch.(U.  S.  C.  C.)  403. 

*  Fogg«.  Pew,  10  Gray  (Mass.) 409, 
71  Am.  Dec.  662;  Lamm  v.  Port  De- 
posit &c.  Assn.  49  Md.  233,  33  Am. 
Rep.  246;  Stiles  v.  Western  R.  R.  Co. 
8  Mete.  (Mass.)  44,  41  Am,  Dec.  486; 
Corbin  v.  Adams,  6  Cush.  (Mass.)  93; 
Wakefield  y.  South  Boston  R.  R.,  117 
Mass.  544;  Mobile  &c.  R.  R.  v.  Ash- 
croft,  48  Ala.  15;  Robinson  v.  Fitch- 
burg  &c.  R.  R.  Co., 7  Gray  (Mass.)  92; 
Green  v.  Ophir,  &c.  Co.  45  Cal.  522; 
Memphis  &c.  R.  Co.  v.  Maples,  63 
Ala.  601;  Meyer  v.  Virginia  &c.  R. 
Co.,  16  Nev.  341;  Mundhenk  v.  Cen- 
tral  Iowa  Ry  Co.,  57  Iowa  718;  Balti- 


639 


§  Tl-i. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


must  have  been  made  in  reference  to  the  subject-matter  of  his 
agency.  The  mere  idle,  desultory  or  careless  talk  of  the  agent, 
having  no  legitimate  reference  to  or  bearing  upon  the  business  of 
his  principal,  can  not  be  binding  upon  the  latter.'  And  (3)  the 
statements,  representations  or  admissions  must  have  been  made 
by  the  agent  at  the  time  of  the  transaction,  and  either  while  he 
was  actually  engaged  in  the  performance,  or  so  soon  after  as  to 
be  in  reality  a  part  of  the  transaction.  Or,  to  use  the  common 
expression,  they  must  have  been  a  part  of  the  res  gestoB.  If  on 
the  other  hand,  they  were  made  before  the  performance  was 
undertaken,  or  after  it  was  completed,  or  while  the  agent  was  not 
engaged  in  the  performance,  or  after  his  authority  had  expired, 
they  are  not  admissible.*     In  such  a  case  they  amount  to  no 


more  &c.  R.  R.  Co.  ».  Christie,  5  W. 
Va.  325;  Anderson  v.  Rome  &c.  R. 
R.  Co.,54N.  Y.  334;  Chicago  R.  R. 
Co.  V.  Riddle,  60  111  534;  Chicago  R. 
R.  Co.  V.  Lee.  60  111,  501;  Rowell  v. 
Klein,  44  Ind.  290. 

•  See  cases  cited  in  following  note. 

» Roberts  «.  Burks,  Liltells  Sel. 
Cas.  (Ky.)  411,  13  Am.  Dec.  325; 
State  Bank  «.  Johnson,  1  Mill. 
(S.  C.)  404,  12  Am.  Dec.  645; 
Thallhimer  v.  Brinkerhoff,  4  Wend. 
(N.  Y.)  394,  21  Am.  Dec.  155; 
Haven  v.  Brown,  7  Greenl.(Me.)  421; 
22  Am.  Dec.  208;  Hubbard  v  Elmer, 
7  Wend  (N.  Y.)  446,  23  Am.  Dec. 
590;  Davis  v.  Whitesides,  1  Dana. 
(Ky.)177,  25  Am.  Dec.  138;  Frank- 
lin Bank  v.  Pennsylvania  t&c.  Co.  11 
Gill.  &  John.  (Md  )  28,  33  Am.  Dec. 
687;  Reynolds  D.Rowley,  3  Rob.  (La.) 
201,  38  Am.  Dec.  233;  Whiteford  w. 
Burckmyer,  1  Gill.  (Md.)  127,  39  Am. 
Dec.  640;  Innis  v.  Steamer  Senator,  1 
Cal.  459,  54  Am.  Dec.  305;  Marshall 
t.  Haney.  4  Md.  498,  59  Am.  Dec. 
93;  Cobbt).  Johnson, 2  Sneed  (Tenn  ) 
73,  62  Am.  Dec.  457;  Burnham  v. 
Ellis,  39  Me.  819,  63  Am.  Dec.  625; 
Converse  «.  Blumrich,  14  Mich.  109, 
90  Am.  Dec.  230;  Anthony  t>.  East- 
abrook,  1  Colo.  75,  91  Am.  Dec.  702; 


Sweetland  v.  Illinois  &c.  Telegraph 
Co.,  27  Iowa,  433,  1  Am.  Rep.  285; 
Keeley  v.  Boston  &c.  R  R.  Co.  67 
Me.  163,  24  Am.  Rep.  19;  First 
Nat.  Bank  v.  Ocean  Nat.  Bank  60  N. 
Y.  278,  19  Am.  Rep.  181;  Durkee  v. 
Central  Pac.  R.  R.  Co.,  69  Cal  533, 
58  Am.  Rep.  582;  Hawker  v.  Balti- 
more &  Oliio  R.  R.  Co.,  15  W.  Va. 
628,  36  Am.  Rep.  825;  McDermott  v. 
Hannibal  «fec.  R.  R.  Co.,  73  ISIo  516, 
39  Am.  Rep.  526,  Randall  v.  North- 
western Tel.  Co.  54  Wis.  140,  41  Am. 
Rep.  17;  Ryan  v.  Gilmer,  2  Mont. 
517.  25  Am.  Rep.  744:  Adams  v.  Han- 
nibal &c.  R.  R.  Co.  74  Mo.  553,  41 
Am.  Rep.  333;  Waldele  v.  New  York 
Central,  &c.  R.  R.  Co.  95  N.  Y.  274, 
47  Am.  Rep.  41;  American  Steam- 
ship Co.  V.  Landreth,  103  Penn.  St. 
131,  48  Am.  Rep.  196,  Sullivan  v. 
Oregon  &c.  Co., 12  Oregon  392,53  Am. 
Rep.  364;  North  River  B:mk  v.  Ay- 
mar,  3  Hill  (N.  Y.)  262;  Sandford  v. 
Handy,  23  Wend.  (N.  Y.)  2G0;  Bank 
of  U.  S.  V.  Davis,  2  Hill  (N.Y.)451; 
Carpenter  v.  American  Ins.  Co.,  1 
Story  (U.  S.  C.  C.)  57;  Randel  v. 
Chesapeake  &  Del.  Canal  Co.  1  Harr. 
(Del.)  234;  Lee  v.  Munroc,  7  Cranch 
(U.  S.)  366;  Stewartson  v.  Watts,  8 
Watts  (Penn.)  392;  Lobdell  v.  Baker 


540 


Chap.  Y.]        LIABILITY  OF  PllINCirAL  TO  THIRD    PEKSON.  §  715. 

more  than  a  mere  narrative  of  a  past  transaction,  and  do  not 
bind  the  principal.  Tlie  reason  is  that,  while  the  agent  was 
authorized  to  act  or  speak  at  the  time  and  within  the  scope  of 
his  authority,  he  is  not  authorized,  at  a  subsequent  time,  to  nar- 
rate wliat  he  had  done  or  how  he  did  it. 

§  Tl5.  What  embraced  within  Res  Gestae.  The  question  of 
what  declarations  and  admissions  constitute  a  part  of  the  res 
gestCB,  is  one  exceedingly  difficult  of  determination,  and  upon 
which  the  authorities  are  conflicting.  It  was  formerly  held,  and 
the  doctrine  still  prevails  in  some  jurisdictions,  that  the  declara- 
tions and  admissions  must  be  strictly  contemporaneous  with  the 
act ;  that  if  they  were  not  made  until  the  act  in  controversy  was 
completed,  although  made  immediately  afterwards,  and  on  the 
spot,  they  were  not  admissible.' 

The  tendency  of  many  of  the  later  cases  in  the  United  States 
is,  however,  to  regard  the  mere  point  of  time  as  less  material,  and 
to  treat  the  declarations  and  admissions  as  admissible  if  they 
Bpring  from  the  transaction  in  controversy  and  tend  to  qualify, 
characterize  or  explain  it,  and  are  voluntary  and  spontaneous,  and 
are  made  at  a  time  so  near  as  to  preclude  the  idea  of  deliberate 

1   Mete.  (Mass.)   193;  Gott    v.  Dins-  tend    to    determine    their    qualit\', 

more,  111  Mass.  45;  Brooks®.  Jame-  The   party    therefore    to   be    bound 

eon,  55  Mo.  505;  Robinson  ®. Walton,  by    the    act    must    be    afftcted    b}' 

58  Mo.  380;  McCombc.  Railroad  Co.  the  words.     But  except   in    one    or 

70  N.  C.  178,  Linblom  v.  Rams-ey,  75  the  other  of  these  ways,   I  do  not 

111.    246;  Newton  v.   White,   53   Qa.  know  how  what  is  said  by  an  agent 

395:  Adams  «.    Humphreys,  54  Ga.  can  be  evidence  against  the  principal. 

496;    Swenson  v.   Aultman  14   Kan.  The  mere  assertion  of  a  fact  cannot 

273;    Fairlie  v.  Hastings,  10  Ves.  Jr.  amount  to  proof  of  it,  though  it  may 

125;   Dawson  v.    Atty.,  7  East  367,  have  some  relation  to  the  business  in 

Fitzherbert  v.    Mather,    1   T.  R.    12;  which  the  person  making  that  asser- 

Bree  v.  Holbech,  2  Dougl.  654.  tion  was  employed    as  agent."    Sir 

«"  What  an  agent  has  said  may  be  William   Grant  in  Fairlie  v.   Hast- 

wbat  constitutes  the  agreement  of  the  ings,  10  Ves.  Jr.  127. 
principal;  or  the  representations  or  "The  declarations  or  confession  a 

Btatements  made  may  be  the  founda-  of  an  agent,  except  they  be  made  sit 

tion  of,   or    the  inducement  to,  the  the  time,  and  compose  a  part  of  acts 

agreement.     Therefore,  if  a  writing  done  by  him  for  his  principal  within 

is  not  necessary  by  law,  the  evidence  the  scope  of  his  authority,  cannot  be 

must  be  admitted  to  prove  the  agent  given  in  evidence  to  charge  the  prin- 

did  make  that  statement  or  represen-  cipal."      Mills    J.,   in    Roberts    v. 

tatiou.       So    with     regard    to    acts  Burks,  Littells  Sel.  Gas.  (Ky.) 411,  12 

done,   the   words  with  which  these  Am.  Dec.  325. 
acts    are     accompanied     frequently 

541 


§715. 


THE    LAW    OF    AGENCY. 


[Book  ly. 


design.'  According  to  the  doctrine  of  these  cases,  each  transac- 
tion is  to  be  judged  bj  its  own  peculiar  facts,  without  conclusive 
regard  to  a  fixed  interval  of  time,  and  with  more  regard  to  the 
question  whether  the  declarations  or  admissions  seem  to  have 
been  voluntarily  and  spontaneously  made,  under  the  immediate 
influence  of  the  principal  transaction,  and  are  so  connected  with  it 
as  to  characterize  or  explain  it.  The  scope  of  the  rulings  upon 
the  subject  can  be  best  shown  by  some  illustrations  from  the 
decided  cases. 

Thus  in  an  action  to  recover  damages  for  a  breach  of 
warranty,  on  the  sale  of  a  chattel,  the  declaration  of  the  ven- 
dor's agent  that  the  chattel  was  defective,  made  eight  months 


»  "Declarations  to  be  a  part  of  the 
res  gestae  are  not  required  to  be  pre- 
cisely concurrent  in  point  of  time 
with  the  principal  fact;  if  they  spring 
out  of  the  principal  transaction,  if 
they  tend  to  explain  it,  are  voluntary 
and  spontaneous,  and  are  made  at  a 
time  so  near  it  as  to  preclude  the  idea 
of  deliberate  design,  then  they  are  to 
be  regarded  as  contemporaneous,  and 
are  admissible."  Sprague,  J.,  in 
People  V.  Vernon,  35  Cal.  49,  95  Am. 
Dec.  50,  citing,  1  Greenl.  Ev,  §  108; 
MitchumtJ.  State,  11  Ga.  615;  Com- 
monwealth V.  McPike,  3  Cush.  (Mass.) 
181  (50  Am.  Dec.  727). 

"I  do  not  understand  that  decla- 
rations by  persons  whose  duty  it  is  to 
make  them,  in  order  to  constitute  a 
part  of  the  res  gesim,  are  required  to 
be  precisely  concurrent  in  point  of 
time  with  the  principal  transaction. 
If  they  spring  from  it,  and  tend  to 
explain  it,  are  voluntary  and  spontane- 
ous, and  are  made  at  a  time  so  near  as 
to  preclude  the  idea  of  design  to  mis- 
represent, they  may  be  regarded  as  so 
nearly  contemporaneous  as  to  be  ad- 
missible." Sherwood,  J.,  in  Keyser 
V.  Cliicago&G.  T.  Ry  Co.  — Mich.— 
33  N.  W.  Rep.  867,  citing  Scaggs  v. 
State,  8  Sm.  &  Mar.  (Miss.)  723;  In- 
surance Co.  V.  Mosley,  8  Wall.  (U.  S.) 


397;  Commonwealth  v.  McPike,  3 
Cush.  (Mass.)  181;  Harriman  «. 
Stowe,  57  Mo.  98;  Crookham  v.  State, 

5  W.  Va.  510;  Boothe  v.  State,  4  Tex. 
App.  202;  Regina  v.  Abraham.  2  Car. 

6  K.  550;  Hanover  R.  Co.  v.  Coyle. 
55  Penn.  St.  402;  Brownell  v.  Pacific 
R.  Co.  47  Mo.  239;  People  «.  Vernoa, 
35  Cal.  49,  95  Am.  Dec.  50;  Handy  v. 
Johnson,  5  Md.  450;  Carter  v.  Buchan- 
non,  3  Ga.  513;  Mitchum  v.  State,  11 
Ga.  615 ;  Courtney  v.  Baker,  3  Jones 
&  Sp.  (N.  Y.)  529;  O'Connor  v.  Chi- 
cago, &c.  Ry  Co.  27  Minn.  166; 
Armil  v.  Chicago,  &c.  R.  R.  Co.  70 
Iowa  130;  State  v.  Horan,  82  Minn. 
.394,  20  N.  W.  Rep.  905;  Lund  v. 
Tyngsborough,  9  Cush.  (Mass.)  36. 

"The  modern  doctrine  has  relaxed 
the  ancient  rule  that  declarations, 
to  be  admissible  as  part  of  the  res 
gestcB,  must  be  strictly  contempora- 
neous with  the  main  transaction.  It 
now  allows  evidence  of  them  when 
they  appear  to  have  been  made  under 
the  immediate  influence  of  the  prin- 
cipal transaction,  and  are  so  con- 
nected with  it  as  to  characterize  or 
explain  it."  Dissenting  opinion  of 
"Waite,  C.  J.,  Miller,  Field  and 
Blatchford,  J.  J., in  Vicksburg,  &c. 
R.  R.  V.  O'Brien,  119  U.  S.  99. 


542 


Chap,  v.]        LIABILITY  OF  PKINCIPAL  TO  THLKD    PERSON.  §  716. 

after  the  sale  and  not  connected  with  any  present  business  trans- 
action, was  held  to  be  inadmissible ;' so  an  admission  bj  the 
general  agent  of  a  telegraph  company  of  its  liability  for  an  acci- 
dent, alleged  to  have  been  caused  by  its  negligence,  two  months 
after  the  accident,  has  been  held  to  be  not  admissible  ;*  so  the 
admissions  made  by  the  engineer  of  an  engine  which  had  killed 
some  cattle,  made  while  he  was  still  on  the  engine  where  it  had 
been  thrown  from  the  track  by  the  accident,  but  made  an  hour 
after  the  accident,  were  held  to  be  incompetent ; '  so  evidence  of 
the  statement  of  a  railroad  roadmaster  that  a  certain  employee, 
through  whose  incompetence  an  accident  had  happened,  was 
incompetent,  made  several  days  after  the  accident,  has  been  held 
to  be  inadmissible  ;  <  so  in  an  action  against  a  railroad  company 
for  personal  injuries  sustained  by  a  passenger,  evidence  of  the 
declarations  of  the  conductor  and  engineer  "  a  few  minutes  " 
after  the  accident,  was  held  incompetent;*  so  in  two  like  cases 


•  White  V.  MiUer,  71  N.  Y.  118,  27 
Am.  Rep.  13. 

3  Randall  v.  Northwestern  Tel.  Co. 
54  Wis.  140,  41  Am.  Rep.  17. 

3  Hawker  v.  Baltimore  &  Ohio  R. 
R  Co.  15  W.  Va.  638,  36  Am.  Rep. 
835. 

*  McDermott  v.  Hannibal,  «fec.  R. 
R.  Co.  73  Mo.  516,  89  Am.  Rep.  526. 
Statements  "a  few  days"  afterwards 
inadmissible.  Robinson  v.  Fitch- 
burg,  &c.  R.  R.  Co.  7  Gray  (Mass.) 
93 ;  so  are  statements  made  two  and  a 
half  days  afterward.  .Packet  Co.  v. 
Clough,  20  Wall.  (U.  S.)  528. 

5  Alabama,  &c.  R.  R.  Co.  v.  Hawk, 
72  Ala.  113,  47  Am.  Rep.  403.  In 
this  case  the  court  lay  down  the  rule 
that  "Perfect  coincidence  of  time 
between  the  declaration  and  the 
main  fact  is  not  of  course  required. 
It  is  enough  that  the  two  are  sub- 
stantially contemporaneous;  they 
need  not  be  literally  so.  The  decla- 
rations must  however  be  so  proximate 
in  point  of  time  as  to  grow  out  of, 
elucidate  and  explain  the  character 
and  quality  of  the  main  fact,  and 
must  be  so  closely  connected  with  it 


5-i; 


as  virtually  to  constitute  but  one 
entire  transaction,  and  to  receive  sup- 
port and  credit  from  the  principal  act 
sought  to  be  thus  elucidated  and  ex- 
plained. The  evidence  offered  must 
not  have  the  ear-marks  of  a  device, 
or  afterthought,  nor  be  merely  nar- 
rative of  a  transaction  which  is 
really  and  substantially  past,"  citing 
Thomp.  Car.  557,  558;  Gandy  v. 
Humphries,  35  Ala.  617;  Henderson 
V.  State,  70  Ala.  33;  Enos  v.  Tuttle,  3 
Conn,  250;  Scaggs  v.  State,  8  Sm.  & 
M.  (Miss.)  723;  Commonwealth  v. 
Hackett,  3  Allen  (Mass.)  136;  Luby  v. 
Hudson  R.  R.  Co.  17  N.  Y.  131;  Mc- 
Dermott V.  Hannibal,  &c.  R.  R.  Co. 
supra.  Yet  they  reach  the  conclu- 
sion "that  the  declarations  of  the 
conductor  and  engineer  cannot,  under 
a  proper  application  of  this  principle, 
be  regarded  as  a  part  of  the  res  gestm 
of  the  accident  resulting  in  injury  to 
the  plaintiff.  The  time—'  a  few  min- 
utes'—does not  appear  to  be  so 
proximate  to  the  main  transaction, 
nor  are  the  declarations  made  other- 
wise so  closely  connected  with  it,  as 
an  elucidating  circumstance,  as  justly 


§  715. 


THE    LAW    OF    AGENCY. 


[Book  IV. 


evidence  of  similar  declarations  made,  in  one  case/  ten  to  thirty 
minutes,  and  in  the  other,"  five  minutes,  after  the  accident,  was 
held  inadmissible;  so  in  action  for  injuries  sustained  bj  a  pas- 
senger from  the  overturning  of  a  stage  sleigh,  the  declarations  of 
the  driver,  made  on  the  spot  and  immediately  after  the  accident 
occurred,  that  it  happened  through  his  carelessness,  were  held 
inadmissible ; '   so  in  an  action  against  a  railroad  company  for 


t )  authorize  the  conclusion  that  they 
are  not  merely  narrative  of  a  past 
occurrence,  which  at  the  moment  was 
tiaished  and  complete." 

'  Vicksburg,  &c.  R.  R.  v.  O'Brien, 
119  U.  S.  99.  "It  was,"  said  the 
court,  "in  its  essence,  the  mere 
narration  of  a  past  occurrence,  not  a 
part  of  the  res  gestm — simply  an 
assertion  or  representation,  in  the 
coarse  of  conversation,  as  to  a  matter 
not  then  pending,  and  in  respect  to 
which  his  authority  as  engineer  had 
been  fully  exerted.  It  is  not  to  be 
deemed  part  of  the  res  gestce  simply 
because  of  the  brief  period  interven- 
ing between  the  accident  and  the 
making  of  the  declaration.  The  fact 
remains  that  the  occurrence  had 
ended  when  the  declaration  in  ques- 
tion was  made,  and  the  engineer  was 
not  in  the  act  of  doing  anything  that 
could  possibly  affect  it.  If  his  decla- 
ration had  been  made  the  next  day 
after  the  accident,  it  would  scarcely 
!>e  claimed  that  it  was  admissible 
evidence  against  the  company.  And 
yet  the  circumstance  that  it  was  made 
between  ten  and  thirty  minutes, — an 
appreciable  period  of  time — after  the 
accident,  cannot,  upon  principle, 
make  this  case  an  exception  to  the 
general  rule.  If  the  contrary  view 
should  be  maintained,  it  would  follow 
that  the  declarations  of  the  engineer 
if  favorable  to  the  company,  would 
liave  been  admissible  in  its  behalf  as 
part  of  the  res  gestce  without  calling 
him  as  a  witness, — a  proposition  that 
will  find    no    support  in  the  law  of 


evidence.  The  cases  have  gone  far 
enough  in  the  admission  of  the  sub- 
sequent declarations  of  agents  as  evi- 
dence against  their  principals.  These 
views  are  fully  sustained  by  adjudi- 
cations in  the  highest  courts  of  the 
States,"  citing  Luby  v.  Hudson  River 
R.  R.  17  N.  Y.  131;  Pennsylvania  R. 
R.  Co.  V.  Books,  57  Penn.  St.  339; 
Dietrich  v.  Baltimore,  &c.  R.  R. ,  58 
Md.  347;  Lane  v.  Bryant,  9  Gray 
(Mass.)  345,  69  Am.  Doc.  283;  Chi- 
cago, &c.  R.  R.  Co.  V.  Riddle,  60  III. 
534;  Virginia,  &c.  R.  R.  Co.  v.  Say- 
ers,  26  Qratt.  (Va  )  338.  Chicago,  &c. 
Ry  Co.  V.  Fillmore,  57  111.  265;  Mich- 
igan Cent.  R.  R.  Co.  v.  Colemin,  33 
Mich.  440;  Mobile,  &c.  R.  R.  Co.  v. 
Ashcraft,  48  Ala.  15;  Bellefontaine 
Ry  Co.  V.  Hunter,  33  Ind.  335,  5  Am. 
Rep.  201;  Adams  v.  Hmnibal,  &c.  R. 
R.  Co.,  74  Mo.  553,41  Am.  Rep.  333; 
Kansas,  &c.  R.  R.  Co.  d.  Pointer,  9 
Kail.  630;  Roberts  v.  Burks,  Litt. 
(Ky.)  Sel.  Cas.  411,  13  Am.  Dec.  335; 
Hawker  v.  Baltimore  &  Ohio  R.  R. 
Co.  15  W.  Va.  638,  36  Am.  Rep.  835; 
Waite,  C.  J.  and  Field,  Milleb 
and  Blatchpord,  J.  J.  dissented. 

'  Durkee  v.  Central  Pacific  R.  R. 
Co.  69  Cal.  533,  58  Am.  Rep.  563. 

3  Ryan  v.  Qihner,  3  Mont.  517,  25 
Am.  Rep.  741.  The  declaration  of  a 
driver  of  a  street  car  made  as  he  wa3 
getting  off  the  car  immediately  after 
running  into  the  plaintiff,  as  to  the 
cause  of  the  accident,  held  inadmiss- 
ible in  Luby  v.  Hudson  River  R.  R. 
Co.,  17  N.  T.  131.  So  the  declara- 
tion  of  a  street  car  driver  imaiedi- 


544 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  T16. 

running  over  a  man,  evidence  of  admissions  bj  one  trainman  to 
another  immediately  after  the  accident,  was  declared  incom- 
petent.' 

But  on  the  other  hand  in  a  recent  action  brought  against  a 
railroad  company  for  negligently  injuring  the  plaintiff,  declara- 
tions made  by  the  engineer  immediately  after  stopping  his  train 
and  backing  up  to  the  place  of  the  accident,  as  to  the  reason  why 
he  did  not  stop  his  train  before  the  accident,  were  not  only  held 
to  be  competent,  but  similar  declarations  made  by  the  engineer 
when  he  arrived  at  his  destination  about  fifty  minutes  later,  were 
also  admitted  ;  *  so  in  a  case  involving  the  liability  of  a  railroad 
company  for  baggage  lost  by  fire,  the  declarations  of  the  bag- 
gage master  as  to  the  origin  of  the  fire,  made  in  view  of  the  ruins 
but  about  fourteen  hours  after  the  fire,  were  admitted ;  •  so,  in  a 
number  of  cases,  declarations  made  within  so  short  a  time  after 
the  occurrence  as  properly  to  be  designated  as  immediately  made, 
have  been  held  admissible.* 

§  716.  Agent's  Authority  must  be  first  shown.  As  has  been 
seen,*  however,  the  fact  of  the  agent's  authority  can  neither  be 
established,  nor  can  its  scope  or  effect  be  extended  or  enlarged, 
by  his  own  statements,  representations  or  declarations,  so  as  to 
charge  the  principal.  There  must  be  first  a^^ima/acieBhowiug 
of  his  authority  by  other  evidence,  before   the   admissions,  de- 

ately  after  an  accident  that  he  was  Michigan  Cent.  R.  R.  Co.  v.  Carrow^ 

very  sorry  and  that  it  was  his  fault,  73  111.  348. 

held    inadmissible.      Williamson   «.  *  O'Connor   v.    Chicago,   &c.    Ry 

Cambridge R.R.  Co.,  144 Mass.  148,10  Co.,  27  Minn.  166;  Bass  v.  Chicago. 

N.  E.  Rep.  790,  and  to  same  effect  in  &c.    Ry  Co.,   42   Wis.    654,  24  Am. 

Lane  B.Bryant.  9  Gray  (Mass. ) 245,  69  Rep.  437;  Browuell  v.   Pacific  R.  R. 

Am.  Dec.  282, where BiGELOw,  J. says.  Co.,  47  Mo.  239;  Toledo,  &c.  Ry  Co. 

"  It  is  no  more  competent  because  v.  Goddard,  25  Ind.  185.  Where  a  boy 

made  immediately  after  the  accident  who  had  driven  against  a  foot  passen- 

than  if    made    a    week  or  a  month  ger  on  the  street  immediately  stopped 

afterwards."  his  horse  and  came  bacii  and  said  he 

>  Adams  v.  Hannibal  &  St.  Joseph  did    not    mean    to,    Judge   Cooley 

R.  R.  Co.,  74  Mo.  553,  41    Am.  Rep.  said:     "  It  was  as  much  a  part  of  the 

333.     Declarations immeiiately  after,  res  gesia    as    would    have    been    an 

not  admissible.     Cleveland,  &c  R.  R.  exclamation   at  the  very  instant  the 

Co.  e.  Mara,  26  Ohio,  St.  185.  plaintiff  was  struck"     Cleveland  v. 

» Keyser  v.    Cliicago  &  G.  T.  Ry  Newsome,    45  Mich.    62.      To  same 

Co.  —  Mich.  — ,  33  N.  W.  Rep.  867.  effect  are:    Little  Rock,  &c.  Ry  Co. 

«  Illinois    Cent.     R.     R.     Co.     v.  c.  Leverett,— Ark.— ,  3  S.  W.  Rep.58. 

Tronstine,    64    Miss.    834.       Contra,  s  See  ante,  %  100. 

35  545 


§717.  THE   LAW    OF    AGENCY.  [Book  lY.  | 

clarations   or   representations,   if   otherwise  competent,  can   be 
admitted.' 

§  717.  When  Principal  bound  by  Agent's  Representation  of 
extrinsic  Pacts  upon  which  Authority  depends.  In  a  recent 
case  in  the  New  Tork  Court  of  Appeals '  it  is  said  :  "  It  is  a  set- 
tled doctrine  of  the  law  of  agency  in  this  State,  that  where  the 
principal  has  clothed  his  agent  with  power  to  do  an  act  npon  the 
existence  of  some  extrinsic  fact  necessarily  and  peculiarly  within 
the  knowledge  of  the  agent,  and  of  the  existence  of  which  the  act 
of  executing  the  power  is  itself  a  representation,  a  third  person 
dealing  with  such  agent  in  entire  good  faith,  pursuant  to  the 
apparent  power,  may  rely  upon'  the  representation,  and  the  prin- 
cipal is  estopped  from  denying  its  truth  to  his  prejudice.'  *  *  * 
If  there  be  any  exception  to  the  rule  within  our  jurisdiction,  it 
arises  in  the  case  of  municipal  corporations,  whose  structure  and 
functions  are  sometimes  claimed  to  justify  a  more  restricted  lia- 
bility." In  accordance  with  this  rule,  it  was  there  held  that  a 
carrier  which  had  authorized  an  agent  to  issue  bills  of  lading  in 
its  name,  upon  receipt  of  property  for  transportation,  is  liable 
upon  a  bill  of  lading  issued  by  such  agent  and  transferred  by  the 
shipper  to  one  who,  on  the  faith  of  it,  had  discounted  a  draft 
on  the  consignee,  although  in  fact  no  property  had  been  received 
by  the  carrier. 

A  different  result  has  in  some  cases  *  been  reached  upon  the 
same  state  of  facts,  but  the  doctrine  of  the  New  York  court  seems 
most  consonant  with  reason  and  justice.' 

1  See  ante,  %  100,  Smith  v.  Kron,  Co.,  92  N.  C.  43,  53  Am.  Rep.  450; 
96  N.  C  393.  Baltimore,  &c.  R.  R.  Co.  v.  Wilkens, 

2  Bank  of  Batavia  v.  New  York,  44  Md.  11,  23  Am.  Rep.  26;  Grant  t). 
&c.  R.  R.  Co.,  106  N.  Y.  195,  60  Am.  Norway,  10  C.  B.  665,  2  Eng.  Law  & 
Rep.  440,  35  Am.  L.  Reg.  573.  Eq.   337;  The  Freeman  v.  Bucking- 

8  Citing    North    River    Bank     v.  ham,  18  How.  (U.  S.)  1S2;  The  Loon, 

Aymar,  3  Hill  (N.  Y.)  263;  Qriswold  7  Blatch.  (U.  S.  C.  C.)244;  Louisiana 

T.  Haven,  25  N.  Y.  595,  83  Am.  Dec.  Nat.  Bank  v.   LaveilJe,    52  Mo.  380; 

380;  New  York,    &c.   R.    R.   Co.  v.  Pollard?).  Vinton,  105  U.  S.  7;    Hunt 

Schuyler,    34  N.    Y.   30;   Armours.  e.  Railroad  Co.,  29  La.  Ann.  446. 

Michigan  Cent.    R.  R  Co.,  65  N.  Y.  »  In  addition   to  the  cases  cited  in 

111    23  Am.  Rep.  603.  note  2,  supra,  the  New  York   rule   is 

«  That  the  carrier  may   show  the  approved  in   Brooke  v.    New  York, 

non-receipt    of    the    goods    even    as  &c.    R.    R.    Co.,  108  Peun.    St.  529, 

against  a  &(?7ia/zd(3  transferee  for  value,  reported   also   in   note  53    Am.  Rep. 

gee  Black  v.    Wilmington,  «&c.  R.  R.  453;   Sioux  City  R.   R.   Co.  d.  First 

546 


Chap,  v.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PEKSON.  §  71 8. 

It  is  in  accordance  with  the  same  principle  that  a  bank  is  held 
liable  upon  a  check,  which  its  cashier  has  certified  as  good, 
although  in  fact  the  drawer  had  no  funds,  where  third  persons 
have  in  good  faith  acquired  rights  in  such  check  relying  upon 
the  certificate.* 

c.  By  notice  given  to  the  Agent. 

§  718.  General  K,ule— Notice  to  ttie  Agent  is  Notice  to  the 
Principal.  It  is  a  general  rule,  settled  by  an  unbroken  current 
of  authority,  that  notice  to  an  agent  while  acting  within  the  scope 
of  his  authority  and  in  reference  to  a  matter  over  which  his 
authority  extend^-,  is  notice  to  the  principal.* 

In  respect  to  this  rule  two  important  elements  will  be  noticed. 
The  first  of  these  is  that  the  notice  or  knowledge,  which  will 
affect  the  principal,  is  that  only  which  is  possessed  by  the  agent 
while  he  is  agent,  and  while  he  is  acting  within  the  scope  of  his 
authority.  Whether  the  notice  or  knowledge  must  in  all  cases 
have  been  acquired  by  the  agent  during  the  agency,  is  a  question 
upon  which  there  is  some  divergence  of  authority,  and  which 
will  be  noticed  in  a  following  section." 

The  second  element  is  that  the  notice  or  knowledge,  which 
shall  be  imputed  to  the  principal,  is  that  only  which  relates  to 
the  subject-matter  of  that  agent's  authority,  or,  in  other  words, 
is  that  only  which  relates  to  the  business  or  transaction  in  refer- 
ence to  which  that  agent  is  authorized  to  act  by  and  for  the 
principal.* 

Nat.  Bank,  10  Neb.  556,  35  Am.  Rep.  67,  23  Am.  Dec.  62;  Weisser  v.  Deni- 

A>i^;  Coventry  ».  Great  Eastern  R.  R  son,  ION.  Y.  68,  61   Am.   Dec.  731; 

Co.,  11  Q  B.  Dlv.  77(i.  37  Eng.  Rep.  Backman  ®.  Wright,  27  Vt.    187,  65 

589;  Savings  Bank®.  Railroad  Co.,  20  Am.  Dec.  187;  P'urmers',  &c.  Bank  v. 

Kans.  519.  Payne,  25  Conn.  414,   68   Am.    Dec. 

1  mil  t).  Nation  Trust  Co.,  108  302;  Hunter  v.  Watsou,  12  Cal.  377, 
Penn.  St.  1,  56  Am.  Rep.  189;  Mer-  73  Am.  Dec.  543;  Nashville,  &c.  R. 
chants'  Bank  v.  State  Bank,  10  Wall.  R.  Co.  i).  Elliott.  1  Coldw.  (Teun.)611, 
(U.  S.)  604;  Espy®.  Bank  of  Cincin-  78  Am.  Dec.  506;  Russell  v.  Sweezey, 
nati,  18  Wall.  (U.  S.)  604;  Farmers',  22  Mich.  235;  Saudford  v.  Nymaa,  23 
&c.  Bank  v.  Butchers'  &c.  Bank,  10  Mich.  326;  Peoria  Ins.  Co.  v.  Hall,  12 
N.  Y.  125,  69  Am.  Dec.  (378.  Mich.    202;    Taylor    v.    Young,    56 

2  Reynolds  v.  IngersoU,  11  Smedes  Mich.  285;  Campau  v.  Konan,  39 
&  M.  (Miss.)  249.  49  Am.  Dec.  57;  Mich.  3G2;  Saulsbury  v.  Wimberly, 
Ross  u  Houston,  25  Miss.  591,  59  Am.  (iO  Ga.  78;  Roach  «.  Karr,  18  Kaua. 
Dec.  231 ;  Woodfolk  v.  Blount,  3  Hay.  529. 

(Tenn.)  147.  9  Am.  Dec.  736;  Barnes  ^  See  Tpost,  %  721. 

».  McClinton,  3  Pen.  &  Watts  (Penn.)  <  See  vost,.%  723. 

547 


§  719.  THE   LAW   OF   AGENCY.  [Book  lY. 

§  719.  Same  Subject— The  Beasons  of  the  Rule.  Two  gen- 
eral theories  prevail  as  to  the  foundation  upon  which  this  rule  is 
based,  and  the  results  of  these  respective  theories  are  not  entirely 
alike.  The  first  finds  the  reason  of  the  rule  in  the  legal  identity 
of  the  agent  with  the  principal, — in  the  fact  that  the  agent, 
while  keeping  within  the  scope  of  his  authority,  is,  as  to  the  mat- 
ters embraced  within  it,  for  the  time  being  the  principal  himself, 
or,  at  all  events,  the  alter  ego  of  the  principal — the  principal's 
other  self.  Whatever  notice  or  knowledge,  then,  reaches  the 
agent  under  these  circumstances,  in  law  reaches  the  principal. 
It  is  the  legitimate  and  necessary  result  of  this  view,  therefore, 
that  only  such  notice  or  knowledge  as  comes  to  the  agent,  while 
he  is  agent,  is  thus  binding  upon  the  principal.' 

The  other  theory  is  based  upon  the  rule  that  it  is  the  duty  of 
the  agent  to  disclose  to  his  principal,  all  notice  or  knowledge 
which  he  may  possess  and  which  is  necessary  for  the  principal's 
protection  or  guidance.  This  duty  the  law  presumes  the  agent 
to  have  performed,  and,  according  to  the  view  now  being  con- 
sidered, imputes  to  the  principal  whatever  notice  or  knowledge 
the  agent  then  possessed,  whether  he  has  in  fact  disclosed  it  or 
not.*    According  to  this  view,  therefore,  it  is  immaterial  when 

1  "  The  agent  stands  in  place  of  the  igan:  "The  reason  upon  which  the 
principal,  and  notice  therefore  to  the  doctrine  of  notice  to  the  agent  being 
agent  is  notice  to  the  principal;  but  held  notice  to  the  principal  rests,  is 
he  cannot  stand  in  the  place  of  the  that  the  agent  is  substituted  in  the 
principal  until  the  relation  of  princi'  place  of,  and  represents,  the  princi- 
pal and  agent  is  constituted,  and  as  pal  in  the  particular  transaction,  and 
to  all  the  information  which  he  pre-  therefore  while  acting  in  such  matters 
viously  acquired,  the  principal  is  a  he  takes  the  place  of  the  principal 
mere  stranger."  Sir  John  Leach  in  and  the  latter  is  bound  by  the  agent's 
Mountford  v.  Scott,  3  Madd.  40.  "  It  act  in  the  light  of  the  knowledge 
is  only  during  the  agency  that  the  then  possessed  by  the  agent."  Mars- 
agent  represents  and  stands  in  the  ton,  C.  J.,  in  Advertiser  &  Tribune 
shoes  of  the  principal.  Notice  to  him  Co.  v.  Detroit,  43  Mich.  116. 
then,  is  notice  to  the  principal.  Notice  «  "  The  general  rule  that  a  principal 
to  him  twenty- four  hours  before  the  is  bound  by  the  knowledge  of  his 
relation  commenced  is  no  more  notice  agent  is  based  on  the  principle  of 
than  twenty-four  hours  after  it  has  law,  that  it  is  the  agent's  duty  to 
ceased  would  be."  Sharswood,  J.,  communicate  to  his  principal  the 
in  Houseman  v.  Girard,  &c.  Building  knowledge  which  he  has  respecting 
Assn.,  81  Penn.  St.  256.  the  subject  matter  of  negotiation,  and 

Somewhat  of   double  ground  was  the  presumption  that  he  will  perform 

taken  by  the  Supreme  Court  of  Mich-  that    duty."    Bradley,   J.,   in  The 

54S 


Chap,  y.]       LIABILITY  OF  PBINCIPAL  TO  THIKD   PEESON.  §  T21. 


or  how  the  agent  obtained  the  information,  if  he  then  pos- 
eessed  it. 

The  courts  have  not,  however,  always  recognized  these  differ- 
ences, nor  have  their  decisions  in  all  cases  been  consistent  with 
the  theory  adopted. 

§  720.  Same  Subject— Notice  acquired  during  Agency.  So  far 
as  that  notice  or  knowledge  which  is  acquired  during  the  agency 
is  concerned,  the  result,  under  either  theory  is  obviously  the 
same. 

Such  notice  or  knowledge  is  chargeable  to  the  principal  in  the 
same  manner,  and  with  the  same  effect,  as  though  it  had  been  com- 
municated to  or  acquired  by  him  in  person. 

§  721.  Same  Subject— Knowledge  acqiiired  prior  to  Agency. 
The  theory  based  upon  the  legal  identity  of  the  parties,  and 
limiting  the  application  of  the  rule  to  such  notice  or  knowledge 
as  was  acquired  during  the  agency,  was  at  first  adopted  by  the 
English  courts,*  and  has  since  been  followed  by  the  courts  of 
many  of  the  United  States.'  The  other  theory,  however,  based 
upon  the  duty  of  the  agent  to  disclose  to  his  principal  all  knowl- 


DistUled  Spirits,  11  Wall.(U.  S.)  at  p. 
867. 

•Preston®.   Tubbin.   1  Vern.  287; 
Brotherton    «.    Hatt,    2    Vern.    574; 
Fitzgerald  v.  Fauconberge,  Fitz  Gib- 
bon, 207;  Lowther«.  Carlton,  2  Atk. 
242;  Warrick  v.  Warrick,  3  Atk.  294 
Worsley  v.  Scarborough,  3  Atk.  392 
Le  Neve  v.   Le  Neve,   3    Atk.    648 
Mountford  v.  Scott,  8  Madd.  26,  s.  c. 
on  appeal,  1  Turn.  &Russ.  279;  Hiern 
c.  Mill,  13  Ves.  Jr.  120. 

«"It  is  well  settled,"  said  C.  J. 
Sharswood,  "that  the  principal  is 
only  to  be  affected  by  knowledge  ac- 
quired in  the  course  of  the  business 
in  which  the  agent  was  emploj'^ed." 
Houseman  v.  Girard,  &c.  Ass'n,  81 
Penn,  St.  256,  citing  Hood  v.  Fahnes- 
tock,  8  Watts.  (Penn.)  489;  Bracken 
«.  Miller,  4  Watts.  &  Serg.  (Penn.) 
110;  Martin  v.  Jackson,  3  Casey  (27 
Penn.  St.)  508,  67  Am.  Dec.  489.  To 
same  effect  are,  Willis  v.  Vallette,  4 
Mete.  (Ky.)  186;  Howard  Ins.  Co.  v. 


Halsey,  8  N.  Y.  371 ;  McCormick  v. 
Wheeler,  36  111.  114,  85  Am.  Dec.  388; 
Mundine  v.  Pitts,  14  Ala.  84;  Wiley  v. 
Knight,  27  Ala.  336.  (But  see  Smyth 
V.  Oliver,  31  Ala.  39.  Pepper  v. 
George,  51  Ala.  190;)  Williams  v, 
Tatnall,  29  111.  564;  Congar  v.  Rail- 
road Co.,  24  Wis.  158;  Pritchett  v. 
Sessions,  10  Rich.  (S.  C.)  L.  293; 
Barnes  v,  McClinton,  3  Pen.  &  Watts. 
(Penn.)  67,  23  Am.  Dec.  62;  Weisser 
V.  Denison,  10  N.  Y.  68;  61  Am.  Dec. 
731;  Farmers',  &c.  Bank,  v.  Payne, 
25  Conn.  444,  68  Am.  Dec.  362;  Bank 
of  United  States  v.  Davis,  2  Hill  (N. 
Y.)  451 ;  North  River  Bank  v.  Ay  mar, 
3  Hill  (N.  Y.)  262;  Hay  ward  v.  Na- 
tional Ins.  Co.,  52  Mo.  181.  14  Am. 
Rep.  400. 

See  also  the  recent  case  declaring 
this  the  rule  in  Pennsylvania,  al- 
though it  is  held  otherwise  by  the 
United  States  Supreme  Court,  Satter- 
field  V.  Malone,  35  Fed.  Rep.  445. 


519 


1§  721.  THE    LAW    OF    AGENCY.  [Book  lY. 

edge  and  information  possessed  by  the  agent  in  relation  to  the 
subject-matter  of  the  agency,  and  therefore  charging  the  princi- 
pal with  it,  has  since  been  lirmly  established  by  the  English 
courts,*  and  has  been  adopted  by  the  Supreme  Court  of  the 
United  States,'''  and  by  many  of  the  States.' 

This  theory,  however,  recognizes  certain  exceptions  which  are 
clearly  founded  upon  and  consistent  with  it.  Thus  the  agent 
could  not  reasonably  be  expected  to  disclose  information  which, 
though  once  possessed  by  him,  had  been,  in  fact,  forgotten.  So 
the  law  would  not  compel  him  to  disclose  what  it  was  his  legal 
duty  to  conceal.  So  the  agent  could  not  be  deemed  to  have  dis- 
closed that  information  which,  from  his  relations  to  the  subject- 
matter,  or  his  previous  conduct,  it  is  certain  he  would  not  dis- 
close. Subject  to  these  exceptions,  it  is  believed  that  this  theory  is 
supported  by  the  better  reason  and  by  a  clear  preponderance  of 
authority.  The  rule  deducible  from  these  authorities  may  be  said 
to  be  the  following  : — 

The  law  imputes  to  the  principal,  and  charges  him  with,  all 
notice  or  knowledge  relating  to  the  subject-matter  of  the  agency 
which  the  agent  acquires  or  obtains  while  acting  as  such  agent 
and  within  the  scope  of  his  authority,  or  which  he  may  previously 
liave  acquired,  and  which  he  then  had  in  mind,*  or  which  he  had 

•Dresser   «.    Norwood,    17    Com.  Phoenix  Ins.  Co.,  53  Wis.  361;  Wil- 

Bench  (N.  S.)  466;  RoUand  v.  Hart,  son  u  Minnesota,  &c.  Ins.  Ass'n,  36 

L.  R.  6  Cb.  App.  678.  Minn.  112,  1  Am.  St.  Rep.  659. 

•  The  Distilled  Spirits,  11  Wall.  (U.  *  "  Knowledge  of  an  agent  acquired 

8.)  367.  previous  to  the  agency,    but  appear- 

3  Hunter  v.  Watson,  13  Cal.  377,  73  ing  to  be  actually  present  in  his  mind 

Am.   Dec.  543;  Bierce  v.    Red  BlufE  during  the  agency  and  while  acting 

Hotel,  31  Cal.  160;  Hart  v.  Bank,  23  for    his  principal   in   the   particulat 

Vt.  252;  Whitten «.  Jenkins,  34  Ga.  transaction    or   matter,   will,    as    re- 

305;  Day  v.   Wamsley,  33  Ind.  147;  spects  such  transaction  or  matter,  be 

Cummings  v.    Harsabraugh,    14  La.  deemed  notice  to  his  principal   and 

Ann.  711;  Hovey  ©.  Blanchard,  13  N.  will  bind  him  as  fully  as  if  originally 

H.  148;  Bank  v.  Campbell,  4  Hump.  acquired  by  him."     Lebanon  Savings 

(Tenn.)  396;    Campau  v.  Konan,  39  Banks.  Hollenbeck,  29  Minn.  3i2. 

Mich.  3G3;  Chouteau  v.  Allen,  70  Mo.  "  We  think,"  said  Pollock,  C.  B. 

200;  Lebanon  Savings  Bank   v.  Hoi-  "that  in  a  commercinl  transaction  of 

lenbeck,  29  Minn.  322;  Abellc.  Howe,  this  description,   where  the  agent  of 

43  Vt.  403;  Yerger  v.  Barz,  56  Iowa,  the  buyer  purchases  on  behalf  of  his 

77;  Fairfield  Savings  Bank  v.  Chase,  principal,  goods  of  the  factor  of  the 

72  'yie.  226,  39  Am.  Rep.  319;  Suit  v.  seller,  the  agent  having  present  to  hia 

Woodhall,  113  Mass.  391;  Shafer  v.  mind,  at  the  time  of  the  purchase, 

550 


Chap.  Y.]        LIABILITT  OF  PRINCIPAL  TO  THIRD    PERSON. 


§  721. 


acquired  so  recently  as  to  reasonably  warrant  the  assumption  that 
he  still  retained  it;'  Provided,  however,  that  such  notice  or  knowl- 
edge will  not  be  imputed  ;  1.  Where  it  is  sucli  as  it  is  the  agent's 
duty  not  to  disclose,''  and,  2.  Where  the  agent's  relations  to  the 
subject-matter,  or  his  previous  conduct,  render  it  certain  that  he 
will  not  disclose  it,' and,  3.  Where  the  person  claiming  the  bene- 


knowledge  that  the  goods  he  is  buy- 
ing are  not  the  goods  of  the  factor 
though  sold  in  the  factor's  name,  the 
knowledge  of  the  agent,  however 
acquired,  is  the  knowledge  of  the 
principal."  Dresser  v.  Norwood,  17 
C.  B.  (N.  S.)  466. 

Of  this  case  Mr.  Justice  Bradley 
says:  "So  that  in  England  the  doc- 
trine now  seems  to  be  establi3hed, 
that  if  the  agent,  at  the  time  of  effect- 
ing a  purchase,  has  knowledge  of 
any  prior  lien,  trust  or  fraud  affect- 
ing the  property,  no  matter  when  he 
acquired  such  knowledge,  his  princi- 
pal is  affected  thereby.  If  he  acquire 
the  knowledge  when  he  effects  the 
purchase,  no  question  can  arise  as  to 
his  having  it  at  that  time;  if  he  ac- 
quired it  previous  to  the  purchase, 
the  presumption  that  he  still  retains 
it  and  has  it  present  to  his  mind,  will 
depend  on  the  lapse  of  time,  and 
other  circumstances.  Knowledge 
communicated  to  the  principal  him- 
self, he  is  bound  to  recollect,  but  he 
is  not  bound  by  knowledge  commun- 
icated to  his  agent,  unless  it  is  pres- 
ent to  the  agent's  mind  at  the  time 
of  effecting  the  purchase.  Clear  and 
satisfactory  proof  that  it  was  so  pres- 
ent, seems  to  be  the  only  restriction 
required  by  the  English  rule  as  now 
understood.  With  the  qualification 
that  the  agent  is  at  liberty  to  com- 
municate his  knowledge  to  his  prin- 
cipal, it  appears  to  us  to  be  a  sound 
view  of  the  subject."  The  Distilled 
Spirits,  11  Wall.  (XJ.  S.)  367. 

"We  think,  all  things  considered," 

551 


said  Peters,  J.,  "  the  safer  and  better 
rule  to  be  that  the  knowledge  of  an 
agent,  obtained  prior  to  his  employ- 
ment as  agent,  will  be  an  implied  or 
imputed  notice  to  the  principal,  under 
certain  limitations  and  conditions 
which  are  these:  The  knowledge 
must  be  present  to  the  mind  of  the 
agent  when  acting  for  the  principal — 
BO  fully  in  his  mind  that  it  could 
not  have  been  at  the  time  forgotten 
by  him;  the  knowledge  or  notice 
must  be  of  a  matter  so  material  to 
the  transaction  as  to  make  it  the 
agent's  duty  to  communicate  the  fact 
to  his  principal,  and  the  agent  must 
himself  have  no  personal  interest  in 
the  matter  which  would  lead  him 
to  conceal  his  knowledge  from  his 
principal,  but  must  be  at  lib- 
erty to  communicate  it."  Fairfield 
Savings  Bank  v.  Chase,  72  Me.  226, 
39  Am.  Rep.  319. 

Knowledge  or  notice  will  not  bind 
if  it  does  not  appear  to  have  been  re- 
tained.    Yerger  v,  Barz,  56  Iowa,  77. 

*  Knowledge  acquired  not  only 
during  the  continuance  of  the  agency 
but  also  that  possessed  by  the  agent 
so  shortly  before  as  necessarily  to 
give  rise  to  the  inference  that  it  re- 
mained fixed  in  his  memory  when 
the  employment  began  binds  the 
principal.  Chouteau  v.  Allen,  70  Mo. 
290. 

s  The  Distilled  Spirits,  11  Wall.  (U. 
S.)  367;  Fairfield  Savings  Bank  v. 
Chase,  72  Me.  236,  39  Am.  Rep.  319. 

»  See  post,  723. 


R  722.  THE    LAW    OF    AGENCY.  [Book  IT. 

fit  of  the  notice,  or  those  whom  he  represents,  colluded  with  the 
agent  to  cheat  or  defraud  the  principal.' 

This  rule  does  not  depend,  in  either  case,  upon  the  fact  that 
the  agent  has  disclosed  the  knowledge  or  information  to  his  prin- 
cipal ;  subject  to  the  exceptions  named,  the  law  conclusively  pre- 
sumes that  he  has  done  so,  and  charges  the  principal  accordingly.' 
What  present  knowledge,  previously  acquired,  may  reasonably  be 
attributed  to  the  agent,  is  a  question  to  be  governed  by  the  facts 
of  each  particular  case.  "  It  may  fall  to  be  considered,"  said 
Lord  Eldon,  "  whether  one  transaction  might  not  follow  so  close 
upon  the  other  as  to  render  it  impossible  to  give  a  man  credit  for 
having  forgotten  it.  I  should  be  unwilling  to  go  so  far  as  to  say, 
that,  if  an  attorney  has  notice  of  a  transaction  in  the  morning, 
he  shall  be  held  in  a  court  of  equity  to  have  forgotten  it  in  the 
evening ;  it  must  in  all  cases  depend  upon  the  circumstances. "  ' 

The  burden  of  proof  rests  upon  the  party  asserting  the  fact  of 
notice  or  knowledge. 

a  722.  Same  Subject— Of  the  first  Exception.  The  first  of 
these  exceptions  is  well  settled,  both  in  England  and  in  this 
country.  It  is  most  frequently  applied  to  the  case  of  attorneys 
and  others,  upon  whom  rests  the  duty  of  maintaining  a  profes- 
sional secrecy.  This  secrecy  the  law  will  not  permit,  much  less 
require,  to  be  violated.*     As  is  well  said  by  Mr.  Justice  Bradley, 

1  National  L.  Ins.  Co.  v.  Minch,  53  mick  v.  Wheeler,  36  111.  114,  85  Am. 
N.  Y.  144.  " The  rule  which  charges  Dec.  388;  Herrington  «.  McCoUum, 
the  principal  with  what  the  agent  73  111.476;  Pepper  «.  George,  51  Ala. 
knows  is  for  the  protection  of  inno-  190;  Terrell  v.  Bank,  12  Ala.  502; 
cent  third  persons  and  not  for  those  Bierce  r.  Red  Bluff  Hotel  Co.,  31  Cal. 
who  use  the  agent  to  further  their  160;  Martin  v.  Jackson,  27  Penn.  St. 
own  frauds  upon  the  principal."  504,  67  Am.  Dec.    489;  Allen   v.  Mc- 

2  The  Distilled  Spirits,  11  Wall.  Calla,  25  Iowa  464,  96  Am.  Dec.  56; 
'U.  S.)  367;  Dresser  v.  Norwood,  17  Haven  c.  Snow,  14  Pick.  (Mass.)  28; 
C.  B  (N.  S.)  466.  Lowther   v.    Carlton.    2     Atk.    242; 

3Mountford  v.   Scott,   1   Turn.  &  Worsley «.  Scarborough,   3  Id.    392; 

Russ.   274;  The  Distilled  Spirits,  11  Warrick    «.    Warrick.     3    Id.    294. 

Wall.  (U.  S.  367.  Campbell  c.  Benjamin,  69   111.   244. 

<  It  has  been  held  generally  in  many  And    so    it    has    been     held    that 

cases  that  knowledge    acquired    by  knowledge  acquired  by  an   attorney 

an  attorney  while  acting  for  one  client  while  acting  for  one  client  will  not 

will  not  affect  a  subsequent  client.  affect  another  client  for  whom  he  is 

Hood  V.  Fahnestock,  8  Watts  (Penn.)  acting  in  another  matter  at  the  same 

489,    34   Am.     Dec.    489;   Willis  v.  time.     Ford  v.  French,  72    Mo.  250. 

Vallette,  4  Mete.  (Ky.)   186;  McCor-  But  the  better  rule  is  believed  to  be 

552 


Chap,  v.]        LIABILITY  OF  PKINOIPAL  TO  THIRD    PERSON. 


§723. 


"  When  it  is  not  the  agent's  duty  to  communicate  such  knowl- 
edge, when  it  would  be  unlawful  for  him  to  do  so,  as,  for 
example,  when  it  has  been  acquired  confideiitiallj  as  attorney 
for  a  former  client  in  a  prior  transaction,  the  reason  of  the  rule 
ceases,  and  in  such  a  case  an  agent  would  not  be  expected  to  do 
that  which  would  involve  the  betrayal  of  professional  confidence, 
and  his  principal  ought  not  to  be  bound  by  his  agent's  secret  and 
confidential  information."  ' 

§  723.  Same  Subject— Of  tlie  second  Exception.  The  rule  is 
based,  as  has  been  seen,  upon  the  principle  that  it  is  the  duty  of 
the  agent  to  communicate  to  his  principal  the  knowledge  pos- 
sessed by  him  relating  to  the  subject-matter  of  the  agency,  and 
material  to  the  principal's  protection  and  interests.  This  pre- 
sumption, however,  will  not  prevail  where  it  is  certainly  to  be 
expected  that  the  agent  will  not  perform  this  duty,  as  where  the 
agent,  though  nominally  acting  as  such,  is  in  reality  acting  in 
his  own  or  another's  interest,  and  adversely  to  that  of  his  princi- 
pal.*    Much  less  will  it  be  entertained  where  the  agent  is  openly 


that  in  either  case  such  notice  binds 
the  principal  unless  acquired  under 
such  circumstances  as  to  make  it 
privileged.  Abell  v.  Howe,  43  Vt. 
403;  Hunter  v.  Watson,  13  Cal.  377, 
73  Am.  Dec.  543;  Hart  v.  Bank  33. 
Vt.  253;  The  Distilled  Spirits,  11 
Wall.  (U.  S.)  at  p.  367. 

1  The  Distilled  Spirits,  11  Wall. 
(U.  9.)  367. 

2  "While  the  knowledge  of  an 
agent  is  ordinarily  to  be  imputed  to 
the  principal,  it  would  appear  now  to 
be  well  established  that  there  is  an 
exception  to  the  construction  or  im- 
putation of  notice  from  the  agent  to 
the  principal  in  case  of  such  conduct 
by  the  agent  as  raises  a  clear  pre- 
sumption that  he  would  not  commu- 
nicate the  fact  in  controversy,  as 
where  the  communication  of  such 
a  fact  would  necessarily  prevent 
the  consummation  of  a  fraudu- 
lent scheme  which  the  agent  was 
engaged  in  perpetrating."  Devens, 
J.  in   Innerarity  v.    Merchants'    Na- 


tional Bank,  139  Mass.  332,  52  Am. 
Rep.  710,  citing  Kennedy  v.  Green,  3 
Myl.  &  Keene  699,  Cave  v.  Cave,  15 
Ch.  Div.  639;  In  re  European  Bank, 
5  Ch.  Ap.  358;  In  re  Marseilles  Ex- 
tension Ry,  L.  R.  7  Ch.  Ap.  161.  (1 
Eng.  Rep.  [Moak]  490);  Atlantic 
National  Bank  v.  Harris,  118  Mass. 
147;Loring©.  Brodie,  134  Mass.  453. 
See  also  Atlantic  Cotton  Mills  v. 
Indian  Orchard  Mills,  —  Mass — ,  17 
North  E.  Rep.  496. 

One  of  the  most  recent  cases 
on  the  point  is  Dillaway  v.  But- 
ler, 135  Mass.  479.  A  to  whom 
B  was  indebted,  advised  C  to  lend 
money  to  B  on  the  security  of  a 
mortgage  on  personal  property,  and 
acted  as  C's  agent  in  completing  the 
transaction.  With  the  money  thus 
obtained  B  paid  A  the  debt  he 
owed  him.  Both  A  and  B  acted  in 
fraud  of  a  statute  of  the  State,  but  0 
had  no  knowledge  of  the  fraud.  It 
was  held  that  the  knowledge  of  A 
was  not  in  law  imputable  to  C  al- 


)53 


§723. 


THE   LAW    OF   AGENCY. 


[Book  IV. 


and  avowedly  acting  for  himself  and  not  as  agent/  In  such 
cases  the  pi*esumption  is  that  the  agent  will  conceal  any  fact 
which  might  be  detrimental  to  his  own  interests,  rather  than  that 
he  will  disclose  it.  This  rule  applies  to  the  agents  of  corpora- 
tions as  well  as  to  those  of  private  individuals.  In  such  a  case, 
says  HoRTON,  C.  J.,  "  neither  the  acts  nor  the  knowledge  of  an 
officer  of  a  corporation  will  bind  it  in  a  matter  in  which  the 
officer  acts  for  himself,  and  deals  with  the  corporation  as  if  he 
had  no  official  relation  with  it." ' 


though  A  had    acted  for  C  in  the 
negotiation. 

Kennedy  v.  Green,  3  Myl.  & 
Keene,  699,  (cited  above)  is  a  lead- 
ing case  upon  this  subject.  There 
one  Bostock  a  solicitor,  who  was  so- 
licitor both  for  Mrs.  Kennedy  and 
Mr,  Kirby,  was  employed  to  negoti- 
ate the  assignment  for  a  large  sum 
of  a  mortgage  from  the  former  to 
the  latter.  At  the  time  of  the  execu- 
tion of  the  assignment,  he  obtained 
also,  by  fraudulent  practices,  a  re- 
ceipt from  the  assignor  for  the 
money.  Having  obtained  the  money 
from  his  client,  the  assignee,  instead 
of  turning  it  over  to  his  other  client, 
the  assignor  of  the  mortgage,  he  em- 
bezzled it.  Mrs.  Kennedy  thereupon 
brought  an  action  against  Green,  the 
solicitor's  assignee  in  bankruptcy, 
and  Mr.  Kirby,  praying  that  the  as- 
signment of  the  mortgage  might  be 
declared  void,  and  that  the  premises 
be  reassigned  to  her.  The  Master  of 
the  Rolls  granted  the  relief  prayed 
for  upon  the  ground  that  knowledge 
of  Bostock's  fraud  was  to  be  impu- 
ted to  his  client  Kirby,  and  also  upon 
thegrounl  that  the  appearance  of  the 
dueds  of  assignment  was  such  as  to 
put  a  prudent  man  upon  inquiry. 
Upon  appeal  the  decision  was  aflirmed 
upon  the  second  ground,  the  Lord 
Chancellor  being  of  opinion  that 
Kirby  was  not  to  be  charged  with 
actual    notice  of    the   fraud,   which 


though  known  to  his  solicitor  who 
■  was  the  perpetrator  of  the  fraud,  it 
was  equally  certain  that  the  solicitor 
would  conceal. 

'  Speaking  of  the  general  rule,  in 
Frenkel  v.  Hudson,  83  Ala.  158,  60 
Am,  Rep.  736.  Somerville,  J, 
says:  "It  has  no  application  how- 
ever, to  a  case  where  the  agent  acts 
for  himself,  in  his  own  interest,  and 
adversely  to  that  of  the  principal. 
His  adversary  character  and  antago- 
nistic interests  take  him  out  of  the 
operation  of  the  general  rule,  for  two 
reasons :  first,  that  he  will  very  likely, 
in  such  case,  act  for  himself,  rather 
than  for  his  principal;  and,  secondly, 
he  will  not  be  likely  to  communicate 
to  the  principal  a  fact  which  he  is 
interested  in  concealing.  It  would 
be  both  unjust  and  unreasonable  to 
impute  notice  by  mere  construction 
under  such  circumstances,  and  such 
is  the  established  rule  of  law  on  this 
subject."  Citing  Terrell  v.  Branch 
Bank  of  Mobile,  13  Ala.  502;  Lucas 
V.  Bank  of  Darien,  2  Stew.  (Ala.) 
831;  Wickersham  v.  Chicago  Zinc 
Co.  18  Kans.  481,  20  Am.  Rep.  784; 
Angell  and  Ames  on  Corp.  |§  308.309; 
Story  on  Agency  §  140. 

2  Wickersham  v.  Chicago  Zinc  Co, 
18  Kaas.  481,  28  Am.  Rep.  784. 
See  post  §  729;  Frenkel  v.  Hudson,  82 
Ala.  158;  60  Am.  Rep.  733.  Reid  v. 
Bank  of  Mobile,  70  Ala.  199, 


554 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  725. 

§  724.  What  Wotiee  includes— Actual  and  constructive  Notice. 
The  notice  which  will  affect  the  principal  may  be  the  direct  and 
unequivocal  information  of  the  fact,  or  it  may,  in  certain  cases, 
be  inferred  from  the  existence  of  other  facts.  The  former  is 
Bometiraes  termed  actual  notice,  and  the  latter  constructive  notice. 
The  distinction,  however,  is  not  of  any  great  practical  import- 
ance, and  perhaps,  strictly  the  latter  is  to  be  regarded  as  much 
actual  notice  as  the  former.  In  either  event,  it  is  well  settled 
that  the  principal  may  be  bound  by  the  one  as  fully  as  by  the 
other.  The  rule  as  to  what  will  constitute  constrnctive  notice 
may  be  said  to  be  that  wherever  a  party  has  knowledge  of  any 
fact  sufficient  to  put  a  prudent  man  upon  an  inquiry  which,  if 
prosecuted  with  ordinary  diligence,  would  lead  to  actual  notice, 
he  will  be  charged  with  the  knowledge  which  might  have  been 
acquired  by  such  diligence.*  The  presumption  that  he  would 
have  acquired  such  knowledge  is  not,  however,  indisputable,  and 
it  is  always  open  to  the  party  to  show  that  he  used  such  diligence 
without  avail.* 

§  725.  Rule  applies  only  to  Matters  within  Agent's  Authority. 
This  rule  which  imputes  to  the  principal  the  knowledge  possessed 
by  the  agent,  applies  only  to  cases  where  the  knowledge  is  pos- 
BCBsed  by  an  agent  within  the  scope  of  whose  authority  the 
subject-matter  lies.  In  other  words,  the  knowledge  or  notice 
must  come  to  an  agent  who  has  authority  to  deal  in  reference  to 
those  matters  which  the  knowledge  or  notice  affects,  and  whose 
duty  it  therefore  is  to  communicate  it  to  his  principal.  The  fact 
that  some  other  agent,  employed  in  reference  to  different  and 
distinct  transactions,  may  have  had  notice  or  knowledge  will  not 
affect  the  principal.' 

"This,"  says  Dixon,  0.  J.,  "seems  very  clear  when  we  con- 
sider the  reason  and  ground  upon  which  this  doctrine  of  con- 
structive notice  rests.  The  principal  is  chargeable  with  the 
knowledge  of  his  agent  because  the  agent  is  substituted  in  his  place 
and  represents  him  in  the  particular  transaction ;  and  it  would 
seem  to  be  an  obvious  perversion  of  the  doctrine,  and  lead  to 

»  Williamson   v.  Brown,  15  N.  Y.  v.  Glassell,  13  Ala.  50,  48  Am.  Dec 

854;  Baker  v.  Bliss,  39  Id.  70;  Cam-  41. 

bridge  Valley  Bank  v.  Delano.  48  Id.  «  Williamson  7?.Brown,  ISN.Y.  354, 

326;  Hood    v.   Fabnestock,  1   Penn.  a  Congar  c.  Chicago,  &c.  Ry  Co.  24 

St.  479,  44  Am.  Dec.  147;  Chapman  Wis.  157,  1  Am.  Rep.  164. 

555 


§  72G.  THE  LAW  OF  AGENCY.  [Book  lY. 

most  injurious  results,  if,  in  the  same  transaction,  the  princi{)al 
were  likewise  to  be  charged  with  the  knowledge  of  other  ajjeuts, 
not  engaged  in  it  and  to  whom  he  had  delegated  no  authority 
with  respect  to  it,  but  who  were  employed  by  him  in  other  and 
wholly  different  departments  of  his  business." '  Whether  the 
rule  be  based  upon  the  ground  specified  by  the  learned  judge,  or 
upon  the  duty  of  the  agent  to  communicate,  the  result  is  the 
same, — no  duty  of  communication  would  rest  upon  an  agent 
where,  from  the  nature  of  the  acts  to  be  performed  by  him,  the 
knowledge  or  notice  would  appear  to  be  of  no  use  or  interest  to 
the  principal. 

But  where  two  agents  are  employed  to  accomplish  the  same 
object,  notice  to,  or  knowledge  by,  one  of  them  only,  is  notice  to 
the  principal,  although  the  one  to  whom  notice  is  given  is  not 
the  one  who  finally  accomplishes  the  object,  and  although  the 
agent  who  had  the  notice  or  knowledge  did  not  impart  it  to  his 
principal.' 

§  726.     Notice  after  Termination  of  Authority  does  not  bind. 

It  follows  as  a  necessary  conclusion  from  the  principles  consid- 
ered, that  notice  to  an  agent,  after  his  authority  has  entirely 
ceased,  or  after  his  authority  to  represent  the  principal  in  respect 
to  the  matters  to  which  the  notice  relates  has  terminated,  is 
not  notice  to  the  principal.'  Under  neither  of  the  theories  dis- 
cussed, could  such  notice  be  imputed  to  the  principal. 

'  In  Congar  e.  Chicago,  &c.  Ry  Co.  lost.     Subsequent  events  showed  that 

supra.  the  ship  had  in   fact  been   lost  some 

2  This  rule    is  well  illustrated  in  a  time  before  the  plaintiff  attempted  to 

recent  case  in  the  English  Court  of  effect  the  reinsurance,  but  neither  the 

Appeal.     Blackburn  v.  Vigors,  17  Q.  plaintiff  nor  the  broker  who  finally 

B.    Div.   553.*  The  plaintiff  had  in-  obtained   the  insurance  knew  of,  or 

structed  a  broker  to  effect  for  him  a  concealed   from  defendant,  any  fact 

re-insurance  upon  an  over-due  ship.  tending  to  show  that  the  ship  was 

While  this    broker    was    acting    on  lost.     It  was  held  that  the  knowledge 

behalf  of  the  plaintiff,  he  received  in-  of  the  first  broker  must  be  imputed  to 

furmation  of  a  material  fact  tending  the  plaintiff  and   that  he   could  not 

to  show  that  the  ship  was  lost.     He  recover  on  the  policy.     Fitzherbert  v. 

did  not  communicate  this  informa-  Mather,    1    T.  R.    12;    Gladstone  «. 

lion   to    the    plaintiff    and    failed  to  King,  1  M.  &  S.  34  and  Proudfoot  v. 

effect  the  insurance.     Afterwards  the  Montefiore,  L.  R.  2  Q.  B.  511,  were 

plaintiff    employed    another    broker  cited  and  relied  upon, 

who    obtained    insurance    from    the  ^  Boardman  v.  Taylor,  66  Ga.    638. 

defendant   upon  the  ship,  lost  or  not  Notice  to  former  agent  of  a  corpora 
*  This  case  was  reversed  in  12  App.  Cases,  631, 88  Eug.  Bep.  46S. 

556 


Chnp.  Y.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PKUSON.  §  72'J. 

§  727.  Notice  must  be  of  some  material  Matter.  The  knowl- 
edge or  notice  which  is  to  bind  the  principal  must  be  of  some 
matter  so  material  to  the  transaction  as  to  make  it  the  agent's 
duty  to  communicate  it  to  the  principal.^  It  must  also  come 
from  such  an  apparently  authentic  and  reliable  source,  that 
an  ordinarily  prudent  man  would  be  required  to  give  heed  to  it. 
But  neither  the  principal  nor  the  agent  is  bound  to  regard  that 
which  appears  to  be  mere  idle  and  baseless  rumor  or  report.* 

§  728.  Notice  to  Subagent  when  Notice  to  Principal.  The 
question  whether  notice  to  a  subagent  is  notice  to  the  principal 
depends  upon  considerations  already  stated.*  If  the  subagent  be 
one  whom  the  agent  was  expressly  or  impliedly  authorized 
to  appoint,  he  is  to  be  deemed  to  be  the  agent  of  the  principal, 
and  notice  to  such  subagent  would  be  notice  to  the  principal  as 
in  the  case  of  other  agents.  But  if  the  subagent  be  the  agent 
of  t<iie  agent  merely,  then  there  is  no  privity  between  him 
and  the  principal,  and  his  knowledge  cannot  be  imputed  to  the 
principal.* 

S  729.  These  Rules  apply  to  Corporations— Notice  to  Agent. 
These  rules  apply  with  particular  force  to  the  case  of  corpora- 
tions. From  the  very  nature  of  the  case,  the  executive  func- 
tions of  a  corporation  can  only  be  exercised  through  the 
medium  of  the  corporate  agents  to  whom  and  through  whom  all 
notice  to  the  corporation  must  come.  Notice  to  the  officers  and 
agents  of  a  corporation  therefore,  in  reference  to  those  matters 
to  which  their  authority  relates,  is  notice  to  the  corporation.' 

tion  is  not  notice  to  the  corporation  Y.)  54;  Lincoln  v.  Battelle,  6  Wend, 

after  the  agent  has  severed  his  con-  (N.  Y.)  475. 

nection  with  it.      Great  Western  Ry         *  Holden  v.  New  York,  &c.  Bank, 

T.  Wheeler.  20  Mich.  419.  72  N.  Y.  286;  Union   Bank  v.  Camp- 

'  Fairfield  Savings   Bank  v.  Chase,  bell,  4  Humph.  (Tenn.)  394;  Waynes- 

73  Me.  236,  39  Am.  Rep.  319.  ville  Nat.  Bank  v.  Irons,  8  Fed.  Rep. 

s  See    Kerna   v.    Swape.   2   Watts  1;  Hart  u  Farmers',  &c.  Bank,  33  Vt. 

(Penn.)  75;  Jaques  v.   Weeks,  7  Id.  253;  Mihills  Mnfg  Co.    v.  Camp,  49 

261;  Pittman  v.    Sofley,  64  111.155;  Wis.  130;  Webb  ?;.  Graniteville  jMiifg 

Mulliken  v.  Graham,  72  Penn.  St.  484.  Co.    11   S.    C.  396,  33  Am.  Rep.  479; 

» Ante,  %  197.  Farmers',    &c.    Bank    v.    Payne,  25 

*  Hoover  v.   Wise,  91  TJ.   S.  808;  Conn.  444,  68  Am.  Dec.  362;   Wilson 

Storrs  V.  City  of  Utica,  17  N.  Y.  104,  «.  McCullough,  23  Penn.   St.  440,  63 

73  Am.   Dec.    437;  Boyd  t?.  Vander-  Am.  Dec.  347;  Fairfield  Savings  Bank 

kemp,    1    Barb.    Ch.    (N.    Y.)  273;  v.    Chase,  72  Me.  238,  39  Am.  Rep. 

Rourke  v.  Story,   4  E.  D.  Smith  (N.  819. 

557 


8  729.  THE    LAW    OF    AGENCY.  [BookiV. 

But  the  peculiar  characteristics  of  corporations  render  it  im- 
perative that  this  rule  be  kept  within  its  proper  limits.  Not 
every  person  who  is  a  member  of  a  corporation,  or  who  is  con- 
nected with  it,  is  its  agent.  Nor  is  every  agent  to  be  deemed  to 
be  an  ao-ent  for  all  purposes.  The  magnitude  of  their  business 
and  the  extent  of  territory  over  which  their  operations  extend, 
require,  in  the  case  of  many  corporations,  that  their  business  be 
divided  into  several  departments,  each  with  its  own  complement 
of  superior  and  inferior  agents,  and  that  agents  be  employed  in 
various  capacities,  at  different  points.  Attention,  then,  must  be 
given  to  the  questions  whether  the  assumed  agent  is,  in  reality, 
the  agent  of  the  corporation  in  the  given  transaction,  and  if  so, 
does  tlie  notice  or  knowledge  relate  to  matters  within  the  scope 
of  his  authority. 

Regard  must  also  be  had  to  an  exception  to  the  general  rules 
which  has  been  previously  considered.  The  doctrine  of  imputed 
notice  rests,  as  has  been  seen,  upon  the  principle  that  it  is  the 
duty  of  the  agent  to  disclose  to  his  principal  all  such  knowledge 
and  information  as  the  agent  possesses  which  is  material  to  the 
Bubject-matter  of  the  agency,  and  the  law  conclusively  presumes 
that  he  has  done  so.  Where,  however,  the  agent  has  an  interest 
in  the  transaction  which  would  be  prejudiced  by  the  disclosure  of 
the  information,  this  presumption  does  not  prevail.  If,  then,  an 
officer  or  agent  of  the  corporation  himself  deals,  as  a  party  in 
interest,  with  the  corporation,  the  corporation  will  not  be  charged 
with  notice  of  the  information  which  he  possesses  relating  to  the 
transaction  and  which  he  does  not  disclose.  In  such  a  case  the 
assumed  agent  is  in  reality  the  adverse  party,  and  cannot  be 
treated  as  an  agent  at  all.  He  is  seeking  to  promote  and  protect 
his  own  interests,  and  it  is  not  to  be  expected  that  he  can 
or  will  at  the  same  time  protect  and  advance  those  of  the 
corporation." 

»  Wickersham  t».  Chicago  Zinc  Co.  Kentucky,  5  J.  J.  Marsh.  (Ky.)  545; 
18  Kan.  481,  26  Am.  Rep.  784;  Barnes  Commercial  Bank  v.  Cunningham,  24 
«.  Treuton  Gas  L.  Co.,  27  N.  J,  Eq.  Pick.  (Mass.)  270;  Washington  Bank 
83;  First  Nat.  Bank  of  Hightstown  v.  v.  Lewis,  32  Pick.  (Mass.)  24;  Steven- 
Christopher,  11  Vroom  (40  N.  .1.  L.)  son  v.  Bay  City,  26  Mich.  44;  Gal- 
435,  29  Am.  Rep.  262,  s.  c.  8  Cent.  L.  lery  v.  National,  «S;c.  Bank.  41  Mich. 
Jour.  181.  8  Rep.  403;  Innerarity  v.  169;  Straiten  v.  Allen,  1  C.  E.  Green 
Merchants'  Nat.  Bank.  133  Mass.  332,  (N.  J.)  Eq.  229;  Winchester  p.  Balti- 
62  Am.    Rep.   710;  Lyne  v.  Bank  of  more,   &c.   R.   R.   4  Md.  231;  Third 

55S 


Chap.  Y.]       LIABILITY  OF  PEINCIPAL  TO  THIRD    PERSON.  §  730. 

These  cases,  however,  are  to  be  distinguished  from  those  where 
the  agent  for  some  purpose  of  his  own,  fraudulently  assigns,  con- 
veys or  appropriates  to  the  use  of  his  principal  the  property 
of  another.  In  such  a  case,  if  the  principal  after  knowledge  of 
the  fraud  seeks  to  appropriate  and  retain  the  benefit  derived  from 
the  agent's  fraud,  he  will  be  held  to  have  ratified  the  fraud  and 
will  be  chargeable  with  it.^ 

S  730.  Same  Subject— When  Notice  to  Director  is  Notice  to 
Corporation.  The  question  frequently  arises  whether  notice  to  a 
director  of  a  corporation  is  notice  to  the  corporation.  In  dealing 
with  this  question,  regard  must  be  had  to  the  scope  and  nature 
of  the  director's  powers.  The  directors  of  a  corporation  are  not 
individually  its  agents  for  the  transaction  of  its  ordinary  busi- 
ness, which  is  usually  delegated  to  its  executive  officers,  such  as 
its  president,  secretary,  treasurer  and  the  like.     Directors  are,  it 


National  Bank  v.  Harrison,  10  Fed. 
Rep.  243;  Louisiana  State  Bank  v. 
Senecal,  13  La.  525 ;  Seneca  County 
Bank  v.  Neass,  5  Den.  (N.  Y.)  329; 
Hummell  v.  Bank  of  Monroe,  — 
Iowa,  — ,  87  N.  W.  Rep.  954.  Thus 
wliere  the  general  superintendent  of 
a  corporation  conveyed  to  it,  with 
•warranty,  lands  which  he  had  pur- 
chased in  his  own  interests  and 
which  were  subject  to  a  prior  lease, 
of  which  he  had  actual  knowledge,  it 
was  held  that  his  knowledge  could 
not  be  imputed  to  the  corporation. 
"Wickershara  v.  Chicago  Zinc  Co.  18 
Kans.  481,  26  Am.  Rep.  784.  So 
where  the  president  of  a  corporation 
conveyed  to  it  land  subject  to  a  prior 
equity  against  himself,  the  corpora- 
tion was  held  not  chargeable  with 
his  knowledge.  Frenkel  v.  Hudson, 
82  Ala.  158,  60  Am.  Rep.  736. 

'  Thus  if  the  cashier  or  other  officer 
of  a  bank  who  is  secretly  a  defaulter 
takes  or  uses  the  money  of  A  without 
authority  to  make  good  or  cover  up 
his  default,  the  bank,  if  it  seeks  to 
retain  the  money  after  notice  of  the 
fraud  will  be  held  charged  with  the 
cashier's   fraud  and  can   acquire  no 


title  against  A.  Atlantic  Cotton 
Mills  V.  Indian  Orchard  Mills,  — 
Mass.  — ,  17  North  E.  Rep.  496.  So 
a  bank  is  chargeable  with  notice  of 
facts  vitiating  the  title  to  securities 
obtained  by  the  collusion  of  its  teller 
with  an  officer  of  another  bank, 
by  certifying  as  "good"  the  check  of 
an  irresponsible  person  which  is 
taken  by  such  other  bank.  Atlantic 
Bank  «.  Merchants'  Bank,  10  Gray 
(Mass.)  532.  So  where  the  treasurer 
of  a  town,  being  also  cashier  of  a 
bank,  gave  a  note  as  treasurer  of  the 
town  to  raise  money  for  his  private 
use,  and  discounted  the  note  as  cash- 
ier, the  bank  was  held  charged  with 
knowledge  of  his  fraud.  Bank  of 
New  Mil  ford  e.  Town  of  New  Mil- 
ford,  36  Conn.  93.  So  where  the 
cashier  of  a  bank,  who  was  also  treas- 
urer of  another  corporfition,  depos- 
ited securities  of  the  latter  to  obtain 
a  loan  for  the  use  of  the  former  bunk. 
Fishkill  Savings  lost.  v.  Bostwick,  19 
Hun  (  N.  Y.)  354.  See  also  Holden  ». 
New  York,  &c.  Bank,  72  N.  Y.  286. 
But  see  Hummell  v.  Bank  of  Monroe, 
—  Iowa,  — ,  37  N.  W.  Rep.  954. 


559 


§  730.  THE    LAW    OF    AGENCY.  [Book  lY. 

is  true,  possessed  of  extensive  powers  even  to  the  extent  of  abso- 
lute control  over  the  management  of  its  affairs,  but  these  powers 
reside  in  them  as  a  board  and  not  as  individuals,  and  only  when 
acting  as  a  board  in  their  collective  capacity  are  they  the  repre- 
sentatives of  the  corporation.  Notice  to  them  when  assembled 
as  a  board  would  undoubtedly  be  notice  to  the  corporation.'  So 
notice  to  an  individual  director  which  is  in  fact  communicated  to 
the  board  by  him,  is  notice  to  the  corporation,  for  this  thus 
becomes  notice  to  the  board.* 

But  it  is  well  settled,  as  a  general  rule,  that  the  mere  private 
knowledge  of  one  or  more  individual  directors  concerning  any 
business  of  the  corporation,  but  which  is  not  by  them  communi- 
cated to  the  board,  is  not  to  be  imputed  to  the  corporation.'  This 
rule,  however,  is  subject  to  certain  exceptions  resting  upon 
obvious  principles.  Thus  it  has  been  held  that  notice  communi- 
cated to  a  director  officially  for  the  express  purpose  of  being 
communicated  to  the  board  is  notice  to  the  board,  although  he 
may  have  failed  to  do  so,  as  it  is  clearly  his  duty  to  so  commu- 
nicate it  and  he  ought  to  be  conclusively  presumed  to  have  done 
his  duty.* 

So  it  has  been  held  that  a  corporation  is  properly  to  be  charged 
with  information  possessed  by  an  individual  director,  whether 
disclosed  or  not,  if,  while  possessing  such  knowledge,  he  acts  with 
the  board  and  as  a  member  of  it,  upon  the  very  matter  to  which 

»  First    National   Bank  of  Higbts-  Co..  10  Md.    517,  69  Am.  Dec.  174; 

town  V.  Christopher,  11  Vroom  (40  N.  United   States   Ins.  Co.  v.  Shriver,  3 

J.  L.)435,  29  Am.  Rep.  262;  Fulton  Md.  Ch.  381;  First  National  Bank  of 

Bank  v.  New  York,  &c.  Canal  Co.,  4  Hightstown®.  Christopher,  11  Vroom 

Paige  (N.  Y.)  127;  Toll  Bridge  Co.  v.  (40  N.    J.  L.)  435,  29  Am.  Rep.  262; 

Betsworth,  30  Conn.  380.  Westfleld  Bank  v.  Cornen,  37  N.  Y. 

In  re,  Marseilles,  &c.  Ry  Co.,  7Ch.  320,  93  Am.  Dec.  573;  Bank  of  U.  S. 

Ap.  161,  1  Eng.  Rep.  (Moak.)  490.  v.  Davis,  2  Hill  (N.  Y.)  463;  National 

9  Farmers',  &c.  Bank  v.  Payne,  25  Bank  v.  Norton,  1   Hill   (N.  Y.)  572; 

Conn.  444,  68  Am.  Dec.  362;  Bank  of  Atlantic  Bank  v.  Savery,  18   Hun  41, 

Pittsburgh  v.    Whitehead,  10  Watts  8.  c.   82  N.    Y.  291,  308;  Getman  v. 

(Penn.)  397,  36  Am.  Dec.  186.  Second   National   Bank,  23  Hun  (N. 

«  Wilson  ®.  McCullough,  23   Penn.  Y.)503;  Sawyer  «.  Pawners' Bank,  6 

St.  440,  62  Am.   Dec.  347;   Farmers',  Allen  (Mass.)  207. 

&c.  Bank  v.  Payne,  25  Conn.  444,  63  *  United  States  Ins.  Co.  v.  Shriver, 

Am.    Dec.    362;  Farrel    Foundry  v.  3Md.  Ch.  381;  Boyd  v.   Chesapeake, 

Dart,    26  Conn.   376;  Winchester  v.  &c.   Canal  Co.,  17  Md.  195,  79  Am. 

Baltimore,  &c.  R  R.  Co..  4  Md.  231;  Dec.  646. 
General  Ins.  Co.  v.  United  States  Ins. 

5  no 


Chap,  v.]       LIABILTTT  OF  PRINCIPAL  TO  TITIRD    PERSON.  §  730. 


tlie  information  relates.'  In  such  a  case  there  is  the  strongest 
possible  duty  resting  upon  the  director  to  communicate  his  infor- 
mation to  the  board,  and  it  may  well  be  presumed,  as  against  the 
corporation,  that  he  has  done  so.  But,  in  accordance  with  the 
exception  which  has  been  heretofore  noticed,  that  the  agent  will 
not  be  presumed  to  communicate  information  hostile  to  his  own 
interests,  it  has  been  held  that  when  a  director  is  himself  dealing 
as  the  other  party  with  the  corporation,  the  corporation  will  not 
be  charged  with  notice  of  that  knowledge  possessed  by  the  direc- 
tor which  his  own  interest  impelled  him  to  conceal,*  even  though 
he  acts  with  the  board  in  reference  to  it.*     A  director  may,  also, 


*  National  Security  Bank  v.  Cush- 
man,  121  Mass.  490;  Innerarity  v. 
Merchants'  National  Bank,  139  Mass. 
833,  53  Am.  Rep.  710;  Union  Bank  v. 
Campbell,  4  Humph.  (Tenn.)  394; 
Bank  of  United  States  «.  Davis,  2 
Hill  (N.  Y.)  451;  Clerk's  Savings 
Bank  v.  Thomas.  2  Mo.  App.  367. 

•  "  A  bank  or  other  corporation  can 
act  only  through  agents,  and  it  is 
generally  true,  that  if  a  director,  who 
has  knowledge  of  the  fraud  or  ille- 
gality of  the  transaction,  acts  for  the 
bank,  as  in  discounting  a  note,  his 
act  is  that  of  the  bank  and  it  is 
affected  by  his  knowledge.  National 
Security  Bank  e.  Cushman,  121  Mass. 
490.  But  this  principle  can  have  no 
application  where  the  director  of  the 
bank  is  the  party  himself  contracting 
•with  it.  In  such  case  the  position  he 
assumes  conflicts  entirely  with  the 
idea  that  he  represents  the  interests 
of  the  bank.  To  hold  otherwise 
might  sanction  gross  frauds  by  im- 
puting to  the  bank  a  knowledge  those 
properly  representing  it  could  not 
have  possessed."  Devens,  J.  in  Inner- 
arity V.  Merchants'  National  Bank, 
139  Mass.  333.  53  Am.  Rep.  710.  In 
this  case  A  shipped  a  cargo  to  B  for 
Bale  on  A's  account,  but  gave  B  a  bill 
of  lading  in  lalter's  name.  B  was  a 
director  in  defendant's  bank.  B  bor- 
rowed a  large   suia  of  money  of  the 


bank  and,  without  authority  of  A, 
pledged  the  bill  of  lading  as  security. 
B  met  and  acted  with  the  board  in 
approving  the  loan  but  gave  the 
board  no  notice  of  the  true  owner- 
ship of  the  cargo,  nor  did  the  bank 
have  notice  from  any  other  source. 
In  an  action  by  the  owner  of  the 
cargo  it  was  held  that  the  bank  could 
not  be  charged  with  knowledge  of 
the  director's  fraud. 

In  First  National  Bank  of  Hights 
town  V.  Christopher,  40  N.  J.  L.  435, 
29  Am.  Rep.  263,  P  a  member  of  a 
firm,  procured  at  a  bank  of  which  he 
was  a  director,  the  discount  of  a  note 
belonging  to  the  firm,  knowing  that 
the  note  had  been  obtained  by  fraud, 
but  not  disclosing  this  fact  to  the 
other  officers  of  the  bank.  The  bank 
sued  upon  the  note  and  were  allowed 
to  recover,  the  court  holding  that  the 
knowledge  of  the  director  could  nor 
be  imputed  to  the  bank.  To  same 
effect:  Commercial  Bank  v.  Cunning- 
ham, 24  Pick.  (Mass.)  270,  35  Am. 
Dec.  322;  National  Security  Bank  v. 
Cushman,  121  Mass.  491;  Frost  v. 
Belmont,  6  Allen  (Mass.)  163.  See 
also  Atlantic  Cotton  Mills  c.  Indian 
Orchard  Mills,  —  Mass.  — ,  17  North 
E.  Rep.  496. 

'  Innerarity  v.  Merchants'  National 
Bank,  139  Mass.  353,  53  Am.  Rep. 
710;    Custer    v.    Tompkins     County 


36 


561 


§731. 


THE   LAW   OF    AGENCY.  [Book  I V  . 


either  by  custom,  acquiescence  or  express  appointment,  be  charged 
with  the  performance  of  certain  corporate  duties,  in  respect  to 
which  he  is  to  be  regarded  like  any  other  agent  of  the  corpora- 
tion, and  notice  to  him  regarding  such  matters  will  be  notice  to 
the  corporation.' 

§  731.  Same  Subject— Notice  to  Stockholder  not  Notice  to  the 
Corporation.  The  stockholders  of  a  corporation,  as  such,  are 
in  no  sense  the  agents  of  the  corporation.  They  may,  of  course, 
be  invested,  like  other  individuals,  with  representative  powers 
by  the  corporation  and  would  in  that  event  be  treated  like  other 
agents  ;  but  their  mere  position  as  stockholders  gives  them  no 
such  authority.  Notice  to  a  stockholder  is,  therefore,  not  notice 
to  the  corporation.* 

II. 

LIABILITY   OF   THE   PEINCIPAL   IN  TORT. 

a.  For  Agent's  Wrongful  Acts. 

§  732.  In  general.  The  wrongful  act  of  the  agent,  for  which 
it  may  be  sought  to  hold  the  principal  liable,  may  have  been 
one  committed  by  the  express  directions  of  the  principal.  For 
such  an  act  the  principal  will  be  seen  to  be  liable,  and  upon  the 
familiar  maxim,  Quifaoitper  alium.faGit  per  se.^ 

But  tlie  question  most  frequently  arises  in  cases  where  there 
was  either  no  express  direction  at  all,  or  an  express  direction  not 
to  do  the  act  complained  of.  The  same  general  principles  which 
govern  the  liability  of  the  principal  in  contract,  will  be  found  to 
apply  here.  In  the  execution  of  his  authority,  the  agent  repre- 
sents the  principal.  While  so  acting,  the  agent's  act  is  the  act 
of  the  principal,  and  whatever  injuries  may  result  to  third 
persons,  from  the  manner  in  which  the  act  is  performed,  are 
properly  attributable  to  the  principal.     These  injuries  may  be 

Bank,    9  Penn.     St.   27;  Terrell  «.  approval     in     Tagg    «.     Tennessee 

Branch  Bank  of  Mobile,  12  Ala.  503.  National  Bank,  9  Heisk.  (Tenn.)  479. 

United   States  Bank  v.  Davis,  2  Hill  •  Smith  v.    South  Royalton  Bank, 

(N.  Y.)  451 ;  and  Union  Bank  v.  Camp-  32  Vt.  341. 

bell,    4    Humph.    (Tenn.)    394,    are  «  Housatonic,  &c.  Bank  v.  Martin,  1 

contra.     These  cases,  however,  have  Mete.    (Mass.)  294;  Union   Canal  ». 

been  criticised  and  denied.     See  In-  Loyd,  4  Watts.  &  S.  (Penn.)  393. 

nerarity  v.  Merchants'  National  Bank,  •  State  v.    Smith,   78  Me.    260.  57 

tupra.      They   are    also  cited  with  Am.  Rep.  802. 

562 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  TIIIKD    PERSON.  §  733. 

the  result  of  some  act,  either  of  commission  or  of  omissun,  on 
the  part  of  the  agent,  but  in  either  event  they  have  come  to  the 
third  person  because  the  agent,  whom  the  principal  set  in 
motion,  has  neglected  some  duty  which  the  circumstances  imposed 
upon  him. 

It  will  be  noticed,  too,  that  the  question  of  authority  to  do  or  not 
to  do  the  particular  act  complained  of,  is  not  the  criterion  by 
which  the  liability  of  the  principal  is  to  be  determined.  If  the 
agent  be  acting  in  the  execution  of  his  general  authority  to  act, 
t.  «.,  in  the  scope  of  his  employment,  it  is  enough.  Liability  for 
what  is  done  in  accomplishing  the  object,  follows  as  the  result  of 
the  relation. 

At  the  same  time  it  is  not  to  be  inferred  that  every  tortious 
ftct  of  the  agent  is  to  be  attributed  to  the  principal.  The  rule 
must  be  kept  within  the  operation  of  the  reasons  upon  which  it 
\8  based.  If,  therefore,  the  agent  goes  beyond  and  outside  of  his 
employment  to  accomplish  some  independent  purpose  of  his  own, 
he  cannot  thereby  carry  the  principal's  responsibility  with  him. 
These  general  principles  will  be  more  fully  discussed  in  the  fol- 
lowing sections. 

§  733.  Principal  liable  for  Acts  expressly  directed.  For  in- 
juries which  occur  to  third  persons  as  the  natural,  proximate  and 
legitimate  result  of  an  act  which  the  principal  has  expressly 
directed  or  authorized  his  agent  to  do,  the  principalis  clearly  and 
unquestionably  liable.  Such  results  are  the  direct  outgrowth  of 
the  deliberate  intention  of  the  principal,  and  he  is  as  much  to  be 
charged  with  the  responsibility  as  if  he  had  performed  the  act  in 
person.*  This  same  principle  is  frequently  applied  to  the  case 
of  independent  contractors,  and  while  the  principal  is  not,  as  will 
be  seen,'  responsible  for  the  acts  of  the  contractor  under  all  cir- 
cumstances, yet  wherever  he  has  authorized  or  directed  the  doing 
of  an  act  which  is  either  in  itself  a  source  of  injury,  or  which 
from  its  very  nature  is  liable  to  cause  injury  to  third  persons,  the 
principal  is  properly  held  responsible.* 

>  State  V.   Smith,   78  Me.   260,  57  59  Me.  520;  Bacheller  v.  Pinkham,  68 

Am.  Rep.  802;  Scott  v.  Shepherd,  2.  Me.  255. 

"W.  Blackstone,  892;  Guille  v.  Swan,  «  See  post,  %  747. 

19  Johns.  (N.  Y.)  383,   10  Am.  Dec.  »  See  post,  §§  747,  748. 
234;  Eaton  v.  European,  «fcc.  Ry  Co., 

563 


§  7oL  THE    LAW    OF    AGENCY.  [Book    IV. 

§  73  i.  Liable  for  Agent's  negligent  Act  in  Course  of  Em- 
ployment. But  the  principal  is  not  responsible  for  the  results 
of  his  own  intentional  acts  alone.  He  is  liable  also  to  third  per- 
sons for  injuries  sustained  by  them  on  account  of  the  negligence 
of  an  agent — not  standing  in  the  relation  of  independent  con- 
tractor— in  the  performance  of  his  undertaking.*  In  determin- 
ing the  principal's  liability  for  the  agent's  negligence,  the  impor- 
tant inquiry  is,  not  whether  the  agent  was  authorized  to  do  or 
omit  to  do  the  act,  the  doing  or  not  doing  of  which  constitutes 
the  negligence  complained  of,  or  whether  the  act  was  done  or 
omitted  in  violation  of  the  principal's  instructions  ;  but  whether 
the  act  was  done  or  omitted  by  the  agent  while  engaged  in  the 
business  of  his  principal.'  As  is  well  said  by  a  learned  judge, 
"  In  most  cases  where  the  master  has  been  held  liable  for  the 
negligence  of  his  servant,  not  only  was  there  an  absence  of  author- 
ity to  commit  the  wrong,  but  it  was  committed  in  violation  of 
the  duty  which  the  servant  owed  the  master.  The  principal  is 
bound  by  a  contract  made  in  his  name  by  an  agent,  only  when 
the  agent  has  actual  or  apparent  authority  to  make  it ;  but  the 
liability  of  a  master  for  the  tort  of  his  servant  does  not  depend 
primarily  upon  the  possession  of  an  authority  to  commit  it.  The 
question  is  not  solved  by  comparing  the  act  with  the  authority. 

It  is  sufficient  to  make  the  master  responsible  civiliter^  if  the 
wrongful  act  of  the  servant  was  committed  in  the  business  of 
the  master,  and  within  the  scope  of  his  employment,  and  this, 
although  the  servant,  in  doing  it,  departed  from  the  instructions 
of  his  master.     This  rule  is  founded  upon  public  policy  and  cou- 

*  Cosgrove  ».  Ogden,  49  N.  Y.  255,  Am.  Rep.  311;  Chicago,  &c.  R.  R.  v. 

10  Am,  Rep.  361;  Smith  v.  Webster,  Dickson,  63  111.  151,   14  Am.    Rep. 

23  Mich.  298;  Higgins  v.   Watervliet  114;  Evans  w.  Davidson,  53  Md.  245, 

Turnpike  Co.,  46  N.  Y.    23,  7  Am,  36  Am.  Rep.  400;  Noblesville,  &c.  R. 

Rep,  293;  Garretzen  v.  Duenckel,  50  R.  Co.  v.  Gause,  76  lod,  142,  40  Am. 

Mo.  104,  11  Am.  Rep.  405;  Wilton  v.  Rep.  234;  Quinn  v.  Power,  87  N.  Y. 

Middlesex  R.  R.  Co.,  107  Mass.  103,  535,41  Am.    Rep.    393;  Mulveliill  t>. 

9  Am.  Rep.  11;  Pickens  v.  Diecker,  Bates,  31  Minn.   364,  47  Am.    Rep. 

21  Ohio  St.  213,  8  Am.  Rep.  55;  Jack-  796;  Stone  v.  Hills,  45  Conn.  44.  29 

son  V.  Second  Ave.  R.  R.  Co.,  47  N.  Am  Rep.  635;  Chicago,  &c.    R.  R. 

Y.  274,  7  Am.  Rep.  448;  Goddard  v.  Co.  v.  Flexman,  103  III.  546,  43  Am. 

Grand  Trunk  Ry.  Co.,  57  Me.  202,  2  Rep,  33, 

Am,  Rep.  39;  Passenger  R.  R.  Co.  v.  >  Cosgrove  v.  Ogden,  49  N.  Y.  255, 

Young,  21  Ohio  St.  518,  8  Am.  Rep.  10  Am.  Rep.  361. 
78;  Bryants.  Rich,  106  Mass,  180,  8 

564 


Chap.  Y.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PEIISON.  §  735. 

venience.  Every  person  is  bound  to  use  due  care  in  the  conduct 
of  his  business.  If  the  business  is  committed  to  an  agent  or 
servant,  the  obligation  is  not  changed.  The  omission  of  such 
care  is  the  omission  of  the  principal,  and  for  injury  resulting 
therefrom  to  others,  the  principal  is  justly  held  liable.  If  he 
employs  incompetent  or  untrustworthy  agents,  it  is  his  fault ; 
and  whether  the  injury  to  third  persons  is  caused  by  the  negli- 
gence or  positive  misfeasance  of  the  agent,  the  maxim  respondeat 
superior  applies,  provided,  only,  that  the  agent  was  acting  at  the 
time  for  the  principal  and  within  the  scope  of  the  business  en- 
trusted to  him."  ' 

So,  too,  it  is  immaterial  that  the  act  was  committed  without 
the  principal's  knowledge,  or  that  it  was  the  result  of  the  agent's 
misapprehension  or  misapplication  of  his  principal's  instructions, 
and  was  an  act  which  the  principal  never  intended  should  be 
done ;  if  in  fact  it  was  done  by  the  agent  in  the  course  of  his 
employment,  and  not  in  the  willful  departure  from  it,  the  prin- 
cipal is  liable.*  It  is  immaterial  also  that  the  agent  acted  under 
a  misapprehension  as  to  the  facts,  or  that  he  misjudged,  or  came 
to  an  erroneous  conclusion  regarding,  the  facts.  If  the  principal 
put  the  agent  into  a  situation  where  his  duty  requires  him  to 
determine  the  facts  and  act  upon  them,  the  principal  must  be 
held  responsible  to  those  who  may  suffer  injury  from  the  erro- 
neous judgment  of  the  agent.' 

§  735.  Same  Subject— Acts  in  the  Course  of  his  Employment, 
But  in  determining  the  scope  of  the  employment,  regard  must  be 
had,  as  in  other  cases,  to  the  nature  and  extent  of  the  agent's 
authority.  Here,  too,  the  material  questions  are,  (1)  What  au- 
thority has  the  principal  held  the  agent  out  as  possessing?  and, 
(2)  Was  the  agent  at  the  time  acting  within  its  scope?  These  are 
questions  which  are  to  be  determined  largely  by  the  principles 
which  have  already  been  discovered.  No  general  rule  can  be 
laid  down  by  which  all  cases  can  be  decided.  In  every  instance 
it  becomes  a  mixed  question  of  law  and  fact,  to  be  settled  by  ref- 
erence to  the  peculiar  facts  and  circumstances  of  the  case.     If 

•  Andrews,  J.,  In  Higgina  v.  Wat-      hon,  103  111.  485,  43  Am.  Rep.  29,  and 
ervliet  Turnpike  Co.,  46  N.  Y.  23,  7      cases  ia  note  1,  p.  564. 
Am.  Rep.  293.  »  Higgins  v.    Watervliet  Turnpike 

•Chicago    City  Ry  Co.   v.  McMa-      Co.,  40  N.  Y.  23,  7  Am.    Rep.   293, 

and  cases  in  note  1,  p.  564. 

565 


§  736.  THE    LAW    OF    AGENCY.  [iJook  IV. 

upon  such  an  investigation,  it  be  found  that  the  agent  was  acting 
as  such,  within  the  apparent  scope  of  his  authority  and  in  the 
performance  of  his  undertaking,  the  principal  is  liable  for 
the  agent's  negligent  omission  or  commission,  although  the  agent 
was  not  authorized  to  do  the  particular  act  complained  of,  or 
had  received  express  instructions  not  to  do  it* 

This  question  can  not,  perhaps,  be  rendered  clearer  than  by 
reference  to  some  of  the  decided  cases  in  which  it  has  been  deter- 
mined. 

§  736.  Same  Subject— Illustrationa.  Thus  where  the  prin- 
cipal instructed  his  agent  to  get  a  certain  team  of  horses,  intend- 
ing that  the  agent  should  get  them  with  the  owner's  consent,  but 
the  agent,  misapprehending  the  instructions,  took  the  horses 
without  getting  the  owner's  consent,  and  in  using  them  killed 
one  of  them,  it  was  held  the  principal  was  liable;'  so  where  a 
father  sent  his  son  to  get  some  cattle  in  a  certain  pasture,  and 
the  son,  not  finding  them  there,  searched  for  them  in  the  vicinity 
and  having  found  them  in  a  neighboring  pasture,  drove  off  with 
them,  by  mistake,  two  heifers  belonging  to  another,  it  was  held 
that  the  father  was  liable ; '  so  where  a  master  sent  his  servant  to 
get  some  lumber  belonging  to  him  at  a  saw-mill,  telling  him  to 
inquire  of  the  sawyer,  who  would  inform  him  which  was  the 
lumber,  and  the  servant  inquired,  but  was  given  such  directions 
that  he  took  the  plaintiff's  lumber,  it  was  held  that  the  master 
was  liable  ;  *  so  where  a  servant  being  sent  to  cut  trees  in  a  cer- 
tain vicinity,  ignorantly  cut  them  on  plaintiff's  land,  the  master 
was  held  responsible.* 

So  where  a  railway  engineer,  who  was  running  his  train  at  a 
time  when  he  had  been  expressly  forbidden  to  do  so,  collided 
with  a  special  train  containing  the  plaintiff  and  thereby  caused 
him  serious  injury,  it  was  held  that  the  disobedience  of  the 
engineer  constituted  no  defense ;  •  and  where  the  agent  of  a 
lumber  company  caused  lumber  to  be  negligently  piled  in  a 
place  where  his  principal  had  instructed  him  not  to  have  it  piled, 

»  See  cases  cited  in  following  sec-  *  May  ».  Bliss,  22  Vt.  477. 

tion.  •  Luttrell  v.  Hazea,  3  Sneed  (Tena.> 

«  Moir  «.  Hopkins,  16  111.   313,  63  20. 

Am.  Dec.  312.  •  Philadelphia  &  Reading  R  R.  Co. 

»  Andrus  v.  Howard,  36  Vt.  248,  84  «.  Derby,  14  How.  (U.  S.)  468. 
Am.  Dec.  680. 

566 


Cliap.  Y.J        LIABILITr  OF  PRrNCIPAT.  TO  THIRD    PERSON.  §  736. 

and  the  lumber  fell  upon  and  injured  the  plaintiff,  the  lumber 
company  was  held  liable ;  '  and  where  a  clerk  in  a  gun-store  who 
had  been  expressly  instructed  not  to  load  guns  in  the  store, 
loaded  one  for  the  purpose  of  showing  it  to  a  customer,  and  in 
doing  80  the  gun  was  carelessly  discharged  and  shot  the  plaintiff, 
it  was  held  that  the  clerk's  principal  was  responsible.*  So 
although  a  street  car  conductor  may  have  been  instructed  not  to 
carry  passengers  without  payment  of  fare,  yet  if  he  negligently 
injures  one  whom  he  invited  to  ride  free,  the  company  is  liable.' 
So  where  a  farm  laborer,  at  work  with  others  in  his  employer's 
corn-field,  undertook  to  drive  out  some  trespassing  cattle,  and,  in 
80  doing,  carelessly  killed  one  of  them,  it  was  held  that  driving 
out  the  cattle  was  within  the  scope  of  his  employment,  and  that 
the  employer  was  liable  ;  *  so  where  the  conductor  of  a  street  car, 
deeming  the  plaintiff  to  be  drunk  and  disorderly,  forcibly  ejected 
him  from  the  car,  it  was  held  that  the  street  car  company  was  re- 
sponsible, although  the  conductor  might  have  been  mistaken  in 
his  judgment ;  •  and  where  the  keeper  of  a  toll-gate,  who  had 
charge  of  the  gate  at  all  hours  but  was  not  required  to  3ollect 
toll  after  nine  o'clock  in  the  evening,  negligently  let  the  beam  of 
the  gate  down  upon  the  plaintiff  who  was  attempting  to  pass 
after  that  hour  and  injured  her,  it  was  held  that  the  keeper  was 
Btill  acting  in  the  course  of  his  employment,  and  that  his  em- 
ployer was  liable ;  •  so  a  teamster  engaged  in  delivering  coal  for 
his  employer,  a  coal  dealer,  is  unquestionably  acting  within  the 
scope  of  his  employment  in  removing  an  iron  plate  in  a  sidewalk 
covering  the  coal  cellar  into  which  he  is  to  put  the  coal,  and  if  he 
negligently  leaves  the  open  hole  unguarded,  his  employer  is  lia- 
ble for  an  injury  to  one  who  thereby  falls  into  it ; '  so  where  the 
pilot  of  a  ferry-boat  went  out  of  his  usual  course  to  accommodate 
a  passenger  who  was  carried  gratuitously,  and  in  so  doing  negli- 
gently collided  with  a  canal  boat  and  killed  the  plaintiff's  intes- 
tate,  it  was   held  that  he  was  acting  within  the   scope  of  his 

•  Cosgrove  «.  Ogdea,  49  N.  Y.  255,  «  Higgins®.  Watervliet  Turnpike  & 
10  Am.  Rep.  361.                                       R.  R.  Co.,  46  N.  Y.  33,  7  Am.  Rep. 

« Garretzen    v.   Duenckel,    50  Mo.      293. 
104,  11  Am.  Rep.  405.  •  Noblesville,   &c.    Co.    c.    Gause, 

»  Wilton  V.  Middlesex  R.  R.  Co.,      76  Ind.  143,  40  Am.  Rep.  324. 
107  Mass.  108,  9  Am.  Rep.  11.  »  Whiteley  v.  Pepper,  3  Q.  B.  Div. 

*  Evans  v.  Davidson,  53  Md.  245,      376,  30  Eng.  Rep.  (Moak)  341. 
86  Am.  Rep.  400. 

567 


§  73G.  THE  LAAV  OF  AGENCY.  [Book  IV. 

employment,  and  that  his  principal  was  liable  ; '  so  where  a  team- 
ster employed  by  a  flour  merchant  to  deliver  goods,  having 
started  out  with  a  wagon  load  for  different  customers,  left  by  the 
road  side  several  bags  of  bran,  while  he  went  up  a  side  road  to 
deliver  some  flour,  intending  to  take  up  tlie  bran  on  his  return, — 
his  object  being  to  lighten  his  load,  and  thus  finish  the  delivery 
sooner  so  as  to  get  time  to  attend  to  some  business  of  his  own, — 
and  the  bran  frightened  a  passing  horse  and  caused  injury,  it  was 
held  that  the  flour  merchant  was  responsible.*  The  court  said : 
"  He  left  the  bags  to  expedite  delivery.  Did  it  make  the  busi- 
ness his  own  because  he  dispatched  it  more  speedily  than  it  would 
naturally  have  been  done  ?  He  was  sent  by  the  defendant  to  de- 
liver the  flour  and  bran.  Did  he  do  anything  else  than  deliver 
them  ?  His  whole  object  in  leaving  the  bran  by  the  side  of  the 
road  was  to  gain  time.  Suppose  he  had  driven  the  horse  with 
such  speed  as  amounted  to  carelessness  in  order  to  gain  time,  and 
had  injured  a  person  by  so  doing ;  would  he  be  transacting  his 
own  business  while  driving  so  rapidly,  so  that  the  defendant 
would  not  be  liable  ?  Suppose  he  had  left  the  bran  out  of  con- 
sideration for  his  horse,  and  tlie  same  result  had  followed ;  would 
the  defendant  be  excused?  " 

The  fact  that  the  agent  or  servant  is  given  quite  large  discre- 
tion or  control  as  to  the  means  or  methods  to  be  employed,  or 
that  he  acts  in  some  degree  for  himself,  does  not  of  itself  deter- 
mine that  his  acts  are  not  within  the  scope  of  his  employment. 
Thus  where  the  defendant,  who  was  the  owner  of  a  horse  and  ex- 
press wagon,  entrusted  them  to  a  driver  with  general  authority 
to  secure  such  business  as  he  could,  make  his  own  contracts  and 
to  drive  wherever  it  might  be  necessary  to  go  in  order  to  receive 
or  deliver  articles  which  he  might  be  employed  to  transport,  and 
the  driver,  while  drawing  a  load  for  himself,  negligently  injured 
the  plaintiff,  it  was  held  that  the  fact  that  the  driver  was  carry- 
ing his  own  property  was  immaterial  and  that,  while  the  defen- 
dant might  require  the  driver  to  account  to  him  for  the  value  of 
the  time  occupied,  he  was  none  the  less  liable  to  the  plaintiff;  * 
so  where  the  defendant,  the  proprietor  of  a  cab,  entrusted  it  to  a 
driver  with  general  authority  to  seek  business  at  such  places  and 

'  Quinn  v.  Power,  87  N.  T.  535,  •  Mulvehill  v.  Bates.  31   Minn.  364, 

41  Am.  Rep.  392.  47  Am,  Rep,  796 

»  Phelon  V.  Stiles,  43  Conn.  426. 

568 


Chap,  v.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PERSON.  §  7-^>6. 

i  I  such  manner  as  he  pleased,  the  driver  guaranteeing  tlie  pro- 
prietor a  fixed  sura  per  day,  and  the  driver,  while  returning  the 
cab  one  evening,  went  a  little  out  of  his  way  for  a  purpose  of  his 
own,  and  while  so  doing  negligently  injured  the  plaintiff,  it  was 
held  that  the  relation  of  master  and  servant  existed  between 
the  proprietor  and  the  driver,  that  the  driver  was  acting  within 
the  scope  of  his  employment,  and  that  the  proprietor  was  lia- 
ble ;  *  and  so  where  a  traveling  salesman  who  had  no  particular 
instructions  as  to  the  route  he  should  pursue,  or  as  to  the  mode 
of  travel  he  should  adopt,  while  traveling  under  his  employment, 
hired  a  team  and  carriage  to  go  from  one  town  to  another  and, 
while  so  engaged,  negligently  permitted  the  team  to  run  away  and 
cause  injury,  his  employers  were  held  liable.* 

It  is  likewise  immaterial  that  the  agent  or  servant  is  acting 
temporarily  for,  or  under  the  immediate  direction  of,  another  per- 
son, if  he  be  still  employed  in  and  about  his  principal's  business. 
Thus  where  the  owners  of  a  carriage  were  in  the  habit  of  fre- 
quently hiring  a  team  and  driver  for  it  from  the  same  person,  and, 
upon  one  of  these  occasions,  the  driver  by  his  negligence  caused 
injury  to  a  third  person,  it  was  held  that  the  driver,  though  subject 
to  the  general  directions  of  the  owners  of  the  carriage  as  to  the 
course  to  be  pursued,  etc.,  was  still  engaged  in  the  business  of  his 
master,  and  that  the  latter  was  liable.  And  it  was  further  held 
to  make  no  difference  that  the  owners  of  the  carriage  had  always 
been  driven  by  the  same  driver,  he  being  the  only  regular  coach- 
man in  the  employ  of  the  owners  of  the  horses;  or  that  the 
owners  of  the  carriage  had  always  paid  him  a  fixed  sum  for  each 
drive ;  or  that  they  provided  him  with  a  livery  which  he  left  at 
their  house  at  the  end  of  each  drive,  and  that  the  injury  in  ques- 
tion was  occasioned  by  his  leaving  the  horses  while  so  depositing 
the  livery  where  he  was  accustomed  to  leave  it.*     In  this  case 

"Venablea  «.  Smith,  2  Q.  B.  Div.  •  Quarman  v.  Burnett,  6  Mees.  & 

279,  20  Eng.  Rep.  (Moak)  345.     The  Wels.    499.      Of    this    case    Judge 

question  of  the  relation  existing  be-  Cooley  says  that  it  is  one  which, 

tween  the  parties  was  decided  in  view  "whether  correctly  decided  or  not, 

of  a  special  statute  making  the  pro-  has  been  too  often  and  too  generally 

prietor  liable,  but  the  question  of  the  recognized  and  followed  to  be  ques- 

scoDe  of  the  employment   was    de-  tioned  now."    Joslin  v.  Grand  Rap- 

cided  upon  common  law  principles.  ids  Ice  Co.,  50  Mich.   516,   45  Am. 

«  Pickens  v.  Diecker,  21  Ohio  St.  Rep.  54.     To  the  same  point:  Fenton 

212,  8  Am.  Rep.  55.  «.  Dublin  Steam  Packet  Co.,   8  Ad. 

569 


g  737.  THE    LAW    OF    AGENCY.  [Book  IV. 

Baron  Pabke  said:  "Upon  the  principle  that  qui  facit  per 
alium facit per  se,  the  master  is  responsible  for  the  acts  of  his 
servant;  and  that  person  is  undoubtedly  liable  who  stood  in  the 
relation  of  master  to  the  wrong-doer, — he  who  selected  him  as  his 
servant,  from  the  knowledge  of,  or  belief  in,  his  skill  and  care, 
and  who  could  remove  him  for  misconduct,  and  whose  orders  he 
was  bound  to  receive  and  obey."  That  person  was  the  owner  of 
the  horses,  and  not  any  one  at  whose  service  the  horses  and  driver 
were  temporarily  placed.  And  it  is  immaterial  to  the  application 
of  the  principle,  that  the  hirer  of  the  team  selected,  or  asked  ex- 
pressly for,  a  particular  driver.* 

§  737.  Not  liable  for  Negligence  not  in  Course  of  Employment. 
But  a  principal  or  master  is  not  liable  for  the  acts  of  his  agent  or 
servant  not  within  the  real  or  apparent  scope  of  his  employment. 
If  the  agent  or  servant,  therefore,  steps  outside  of  his  employ- 
ment to  do  some  act  for  himself,  not  connected  with  his  princi- 
pal's business,  the  latter  will  not  be  liable  for  the  agent's  negli- 
gence while  so  engaged.  Beyond  the  scope  of  his  employment, 
the  agent  or  servant  is  as  much  a  stranger  to  his  principal  as 
though  he  were  a  third  person.' 

In  determining  whether  a  particular  act  was  done  in  the  course 
of  the  agent's  employment,  it  is  proper  to  inquire  whether  the 
agent  was  at  the  time  serving  his  principal.  If  the  act  was  done 
while  the  agent  or  servant  was  at  liberty  from  the  service,  and 

&  El.  853;  Dalyell  e.  Tyrer,  El.  Bl.  of  C  the  injury  occurred,  but  it  was 

&  El.  899;  Rapson  v.  Cubitt.  9  Mees.  held  that  the  Ice  Co.  was  liable. 
&  Wels.  709;  Hobbit  v.  London,  &c.  «  Butler  t).  Basing,  2  C.  »&  P.  613; 

Ry    Co.,  4  Exch.  254.  Lamb  v.  Palk,  9  Id.  629;  Joel  v.  Mor- 

Weyant  ■».  Railroad   Co.,   3  Duer  iscm,  6  Id.  501;  Storey®.  Ashton,  L. 

(N.  Y.)  360;  Blake  v.  Ferris,  5  N,  Y.  R.  4  Q.  B.  479;  Croft  v.  Alison,  4  B. 

48,  55  Am.  Dec.  304.  &  A.ld.  590;  Marsh  r.  South  Carolina 

'   Quarman     v.     Burnett,     »upra;  R.  R.    Co.,   56   Ga    274;   Richmond 

Holmes  v.  Onion,  2  Com.  Bench  (N.  Turnpike  Co.    v.   Vanderbilt,   1  Hill 

S.)  790;  Joslin  v.  Grand  Rapids  Ice  (K  Y.)  480;  Isaacs  u.  Third  Ave.  R. 

Co.,  supra.     In  this  case  S  was  in  the  R.  Co.,  47  N.  Y.  122,   7    Am.    Rep. 

regular  employ  of  the  defendant.    On  418;  Wilson  v.  Peverly.  3  N.  H   548; 

the  day  the  injury  occurred  C  hired  Chicago,  &c.  Ry   Co.  v.  Bayfield,  37 

of    defendant  one  of    its    teams    to  Mich.    205;    Maddox  v.   Brown,    71 

assist  him  in  his  work,  and  requested  Me.  432,  36  Am.   Rep.  336;  Stone  v. 

that  S  be  sent  as  driver.     While   S  Hills.  45  Conn.  44,  29  Am.  Rep.  635; 

was  driving  the  team  in  the  business  Morier  c.    St.  Paul,  &c.  Ry  Co.,  31 

Minn.  351,  47  Am.  Rep.  793. 

570 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON. 


§738. 


was  pursuing  his  own  ends  exclusively,  the  principal  is  not  liable.' 
If  the  servant  or  agent  was  at  the  time  acting  for  himself  and  as  his 
ovirn  master  pro  tempore,  the  principal  is  not  liable."  If  the  ser- 
vant or  agent  step  aside  from  the  principal's  business,  for  however 
short  a  time,  to  do  some  act  of  his  own,  not  connected  with  the 
principal's  business,  the  relation  of  principal  and  agent  or  of 
master  and  servant,  is,  for  the  time,  suspended.' 

§738.  Same  Subject— Illustrations.  The  cases  upon  this  point 
are  numerous,  but  a  few  of  them  will  serve  to  illustrate  the  prin- 
ciple. Thus  where  the  defendant's  teamster,  having  finished  his 
day's  work,  had  returned  to  the  defendant's  premises  for  the 
purpose  of  putting  up  his  horse  as  was  his  duty,  but  instead  of  doing 
so  drove  off  again  on  business  of  his  own,  and,  in  returning,  in- 
jured the  plaintiff,  the  defendant  was  held  not  liable.*     Maule, 


'  Butler  V.  Basing,  2  C.  &  P.  618, 
and  cases  supra. 

«  Bard  v.  Yohn,  26  Penn.  St.  482, 
and  cases  supra. 

«  Joel  V.  Morison,  6  C.  «&  P.  501, 
and  cases  supra. 

*  Mitchell  V.  Crasweller.  13  Com. 
Bench  237.  So  in  Storey  v.  Ashton, 
L.  R.  4,  Q.  B.  476,  the  defendant  in- 
trusted his  servant  with  his  horse  and 
cart  for  the  day,  and  when  his  work 
was  ended  and  it  was  his  duty  to 
drive  home,  the  servant  for  a  purpose 
of  his  own  and  without  express  or 
implied  authority  from  his  master, 
drove  in  an  entirely  different  direction 
and  by  his  carelessness  injured  the 
plaintiff.  The  court  held  the  master 
not  liable. 

In  Sleath  v.  Wilson,  9  C.  «&  P.  607, 
Erskine,  J.,  said  in  his  charge  to  the 
jury:  "  But  whenever  the  master  has 
intrusted  the  servant  with  the  control 
of  the  carriage,  it  is  no  answer  that 
the  servant  acted  improperly  in  the 
management  of  it.  *  *  *  The 
master  in  such  a  case  will  be  liable, 
and  the  ground  is,  that  he  has  put  it 
in  the  servant's  power  to  mismanage 
the  carriage  by  intrusting  him  with 
it."    But  this  reason  of  Erskine,  J., 


was  disapproved  in  Storey  v.  Ashton, 
supra.  In  that  case  Cockburn,  C. 
J.,  said:  "I  think  the  judgment  of 
Maule  and  Cresswell,  JJ.,  in  Mitchell 
V.  Crassweller,  (supra)  expresses  the 
true  view  of  the  law,  and  the  one 
which  we  ought  to  abide  by; 
and  that  we  cannot  adopt  the 
view  of  Erskine,  J.,  in  Sleath  v. 
Wilson,  that  it  is  because  the  master 
has  intrusted  the  servant  with  the 
control  of  the  horses  and  cart  that 
the  master  is  responsible.  The  true 
rule  is  that  the  master  is  only  respon- 
sible so  long  as  the  servant  can  be 
said  to  be  doing  the  act,  in  the  doing 
of  which  he  is  guilty  of  negligence, 
in  the  course  of  his  employment  as 
servant.  I  am  very  far  from  saying, 
if  the  servant  when  going  on  his  mas- 
ter's business  took  a  somewhat  longer 
road,  that  owing  to  this  deviation  he 
would  cease  to  be  in  the  employment 
of  the  master  so  as  to  divest  the  lat- 
ter of  all  liability;  in  such  cases  it  is 
a  question  of  degree  as  to  how  far 
the  deviation  could  be  considered  a 
separate  journey.  Such  a  considera- 
tion is  not  applicable  to  the  present 
case,  because  here  the  carman  started 
on  an  entirely  new  and  independent 


571 


§  738.  THE   LAW   OF    AGENCY.  [Book    TV. 

J.  said :  "  At  the  time  of  the  accident  the  servant  was  not 
goinc'  a  roundabout  way  to  the  stable,  and,  as  one  of  the  cases 
expresses  it,  making  a  detour.  He  was  not  engaged  in  the  business 
of  his  employer.  But  in  violation  of  his  duty,  so  far  from  doing 
what  he  was  employed  to  do,  he  did  something  totally  incon- 
sistent with  his  duty,  a  thing  having  no  connection  whatever 
with  his  employer's  service.  The  servant  only  is  liable  and  not 
the  employer.  All  the  cases  are  reconcilable  with  that.  The 
master  is  liable  even  though  the  servant,  in  the  performance  of 
his  duty,  is  guilty  of  a  deviation  or  failure  to  perform  it  in  the 
strictest  and  most  convenient  manner.  But  where  the  servant, 
instead  of  doing  that  which  he  is  employed  to  do,  does  something 
which  he  is  not  employed  to  do  at  all,  the  master  cannot  be  said 
to  do  it  by  his  servant,  and  therefore  is  not  responsible  for  the 
negligence  of  the  servant  in  doing  it." 

And  so  in  a  recent  case  in  Maine,  it  appeared  that  the  defend- 
ant's son,  a  minor  of  the  age  of  seventeen  years,  took  his  father's 
horse  and  carriage,  which  he  had  been  allowed  to  use  without 
restriction,  and  drove  to  a  store  for  the  purpose  of  depositing 
money  which,  as  treasurer  of  a  Sunday  school,  he  had  received 
the  day  before.  Entering  the  store  to  make  the  deposit,  he  left 
the  horse  unfastened  and  unattended,  and  the  horse  ran  away, 
colliding  with  plaintiff's  team,  and  caused  the  injury  for  which 
the  action  was  brought  against  the  father.  The  horse  and  car- 
riaf'e  were  taken  in  the  father's  absence,  and  without  his  knowl- 
edge. The  court  held  that,  under  these  circumstances,  the  son 
could  not  be  considered  as  engaged  in  the  business  of  his  father, 
or  as  acting  for  hira,  and  that  the  father  was  therefore  not 
liable.* 

journey,  which  had  nothing  at  all  to  '  Maddox  v.  Brown,  71  Me.  432,  36 

do  with  his  employment.     It  is  true  Am.  Rep.  336.     If  a  master  gives  his 

that  iu  Mitchell  v.  Crassweller  the  ser-  servant  liberty  for  a  day  to  go  to  a 

vant  had  got  nearly,    if  not  quite,  fair,  and  to  take  the  master's  horse 

home,  while  in  the  present  case,  the  and  wagon,  the  master  is  not  liable  to 

carman  was  a  quarter  of  a  mile  from  third  persons  for  an  injury  done  by 

home;  but  still  he  started  on  what  the  servant  during  the  day  with  the 

may  be  considered  a  new  journey  en-  horse  and  wagon.     BarJ  v.  Yobn,  23 

tirely  for  his  own  business,  as  distinct  Penn,  St.  482.     The  owner  of  a  horse 

from  that  of  his  master;  and  it  would  is  not  liable  for  an  injury  caused  by 

be  going  too  far  to  say  that  under  the  negligent  driving  of  a  borrower, 

such  circumstances  the   master  was  to  a  third  person,  if  the  horse  was  not 

liable."  being  used  at  the  time  iu  tlie  owner's 

.57-2 


Chap.  Y.]        LIA.BILITY  OF  PRINCIPAL  TO  THIKD    PERSON.  §  T38. 

So  a  truck-driver,  having  finished  his  master's  business 
and  being  directed  to  put  up  his  team  and  while  on  his  way  to 
the  barn  for  that  purpose,  was  met  bj  another  of  the  defendant's 
servants,  at  whose  request  and  for  whose  accommodation  he 
went  to  deliver  a  trunk.  On  the  way  he  negligently  ran  over 
and  killed  the  plaintiff's  intestate,  but  it  was  held  that  he  was 
not  then  enfjao^ed  in  the  master's  business  and  the  master  was 
therefore  not  liable.' 

In  a  recent  case  in  Connecticut  it  appeared  that  the  defendants 
ordered  their  teamster  to  deliver  a  load  of  paper  to  T.  On  reach- 
ing T's,  he  requested  the  teamster  to  carry  the  paper  four  and  a 
half  miles  further  on  to  Hartford  and,  at  the  railway  station 
there,  to  get  some  freight  for  T  and  bring  it  to  him.  The  team- 
ster consented,  and  while  getting  the  freight  his  team,  which  he 
had  left  unhitched  at  the  station,  ran  away  and  injured  plaintiff's 
property.  The  court  held  that  when  the  teamster  accepted 
instructions  from  T  and  became  a  carrier  of  merchandise  for 
him  to  and  from  a  railway  station  in  an  adjoining  town,  he  tem- 
porarily threw  off  his  employers'  autliority,  abandoned  their 
business  and  left  their  service,  and  that  the  defendants  were 
therefore  not  liable.* 

So  where  workmen  employed  upon  a  railroad,  during  the  noon 
hour  built  a  fire  by  the  side  of  the  track  to  cook  their  dinner, 


business.  Herlihy  v.  Smith.  116  and  took  hold  of  a  horse  8tari>]ing 
Mass.  263.  A  coachman,  after  having  before  a  van  and  caused  the  van  to 
used  his  master's  horse  and  carriage  move  so  as  to  make  room  for  the  ear- 
in  going  upon  an  errand  for  his  mas-  riage  to  pass,  whereby  a  packing  case 
ter,  instead  of  taking  them  to  the  fell  from  the  van  and  broke  the  thills 
stable,  used  them  in  going  upon  an  of  plaintiff's  gig,  it  was  held  that  the 
errand  of  his  own  without  his  mas-  master  was  not  liable  for  the  injury, 
ter's  knowledge  or  consent,  and  while  In  Campbell  v.  City  of  Providence,  9 
so  doing  negligently  ran  into  and  in-  R.  I.  263,  the  defendant,  a  hack 
Jured  the  plaintiff's  horse,  but  it  was  owner,  employed  a  person  as  day 
held  that  the  master  was  not  liable.  driver.  The  driver  used  the  hack  at 
Sheridan  v.  Charlick,  4  Daly  (N.  Y.)  night  without  the  master's  knowledge 
338.  or  consent.     It  was    held    that    the 

*  Cavanagh  v.  Dinsmore,  12  Hun  master  could  not  be  held  responsible 
(N.  Y.)  465.  for  an  omission  on  the  part  of  the 

•  Stone  V.  Hills,  45  Conn.  44,  29  driver  to  comply  with  the  terms  of  a 
A.m.  Rep.  635.  In  Lamb  t).  Palk,  9  cityordinanceduriagthe  time  of  such 
C.  &  P.  629.  where  a  servant  driving  unauthorized  use  of  the  hack, 

hiu  master's  hirse  got  off  the  carriage 

573 


r&  738.  THE    LAW    OF    AGENCY.  [Book  IV. 

and  the  fire  spread  to  an  adjoining  field,  it  was  held  that  the 
railway  company  was  not  responsible.' 

In  a  recent  English  case  it  appeared  that  defendants  were 
solicitors  occupying  offices  over  plaintiffs'  store.  The  defendants 
employed  clerks  whose  duties  were  performed  in  the  general 
office  in  which  there  was  a  lavatory  for  their  use.  They  had 
express  orders  that  no  clerk  was  to  go  into  the  private  offices 
after  the  members  of  the  firm  had  left  them.  On  the  day  in 
question,  one  of  the  clerks,  after  the  solicitors  had  gone,  went 
into  one  of  the  private  offices  to  wash  his  hands  at  the  lavatory 
in  tliat  room.  He  negligently  left  the  water  tap  turned  and  the 
water  flooded  the  plaintiffs'  premises.  The  plaintiffs  brought 
their  action  against  the  solicitors,  and  it  was  urged  that  the  clerk 
was  acting  within  the  scope  of  his  employment. 

But  Grove,  J.,  said:  "I  am  of  opinion  that  the  verdict 
should  be  entered  for  the  defendants.  No  doubt  this  questioQ  is 
a  very  nice  one,  and  there  maybe  cases  close  to  the  line  between 
the  liability  and  non-liability  of  a  master  for  the  act  of  another 
person  done  in  the  '  course  of  his  employment '  if  he  is  a  servant, 
or  '  within  the  scope  of  his  authority '  when  he  is  an  agent,  for 
*  *  such  is  the  mode  in  which  those  terms  have  been  applied  by 
the  courts,  although  the  words  'scope  of  authority'  may  cover 
both  cases.     *     *     * 

Althoufi-h  a  definition  is  difficult,  I  should  say  that  the  act, 


'  Morier  v.  St.  Paul,  &c.  Ry.  Co.,  orders  so  to  do,  went  out  into  the 
31  Minn.  351,  47  Am.  Rep.  793.  In  river  and  attempted  to  tow  the  burn- 
Woodman  V.  Joiner,  10  Jur.  (N.  S.)  ing  barge  up  stream.  In  doing  this 
852,  the  plaintiff  permitted  the  de-  the  barge  was  brought  against  another 
fendant  to  use  his  shed  temporarily  boat  to  which  the  fire  was  communi- 
as  a  carpenter  shop,  and  the  defend-  cated  and  it  was  injured.  It  was 
ant's  workman  in  lighting  his  pipe  held  that  going  to  the  aid  of  the  burn- 
set  the  shed  on  fire ;  held,  that  the  ing  barge  was  outside  of  the  scope  of 
defendant  was  not  liable.  In  the  one  the  duty  of  the  captain  of  the  ferry 
case,  cooking  dinners  and  in  the  other  boat,  and  that  his  employers  were 
lighting  and  smoking  pipes,  was  no  not  liable. 

part  of  the  servant's  duties.     See  also  So  where  the  servant  of  a  stable 

Wilson  V.  Peverly,  3  N.   H.   548.     In  keeper  killed  a  horse  by  immoderate 

Aycrigg  v.  New  York,  «fec.  R.  R.  Co.,  driving,  at  a  time  when  he  was  driv- 

80  N.  J.  L.  460,  it  appeared  that  the  ing  without  authority  and  upon  pur- 

captain  of  a  ferry  boat   which  was  poses  of  his  own,  his  master  was  held 

lying  at  the  wharf,  saw  a  barge  on  not  Iiaole.     Adams  v.    Cost,    62  Md. 

flre  in  the  river,    and  without   any  264,  50  Am.  Rep.  211, 

574 


Chap.  Y.]        LIABILITY  OF  PEINCIPAL  TO  THIBD   PERSON.  §  739. 

for  which  the  master  is  to  be  held  liable,  must  be  something 
incident  to  the  employment  for  which  the  servant  is  hired,  and 
which  it  is  his  duty  to  perform.  *  *  *  I  think  I  should 
have  come  to  the  same  conclusion  as  that  I  have  arrived  at,  if 
there  had  been  no  express  prohibition  in  the  case,  and  it  had 
merely  been  shown  that  the  clerks  had  a  room  of  their  own  and 
a  lavatory  where  they  could  wash  their  hands.  Then  what  pos- 
sible part  of  the  clerk's  employment  could  it  be  for  him  to  go 
into  his  master's  room  to  use  his  master's  lavatory,  and  not  only 
the  water,  but  probably  his  soap  and  towels,  solely  for  his,  the 
clerk's,  own  purposes  ?  What  is  there  in  any  way  incident  to  his 
employment  as  a  clerk?  I  see  nothing.  The  case  seems  to  me 
just  the  same  as  if  he  had  gone  up  two  or  three  flights  of  stairs 
and  washed  his  hands  in  his  master's  bed-room.  It  is  a  voluntary 
trespass  on  the  portion  of  the  house  private  to  his  master.  I  do 
not  use  the  word  trespass  in  the  sense  of  anything  seriously 
wrong,  but  he  had  no  business  there  at  all.  In  doing  that  which 
his  employment  did  not  in  any  way  authorize  him  to  do,  he  negli- 
gently left  the  stop-cock  open  and  the  water  escaped  and  did 
damage.  I  think  there  was  nothing  in  this  within  the  scope  of 
his  authority  or  incident  to  the  ordinary  duties  of  his  employ- 
ment." ' 

§  739.  Liability  for  Agent's  fraudulent  Aot.  The  principal 
is  also  liable  for  the  wrongful,  fraudulent  or  deceitful  act  of  the 
agent  committed  within  the  scope  of  his  authority.*     As  is  said 

'  Stevens  «.  Woodward,   6  Q.  B.  her  act  of  using  the  basin  and  omit- 

Div.  318,  29  Eng.  Rep.   (Moak)  645.  ting  to  turn  off  the  water  would  be 

Grove,  J.,  further  said:    "The  case  so  incident  to  her  employment  that 

is  a  little  stronger  by  reason  of  the  the  master  would  be  liable."    Lind- 

prohibition,  but  I  quite  agree   *  *   *  ley,   J.,  concurred,  saying:     "lam 

that    there    are    cases  where  a  pro-  of  the  same  opinion  and  I  agree  for 

hibition  would  have  no  effect,  and  much  the  same  reasons.     I  do   not 

I  cannot  put  a  nearer  one  than  that  I  see  on  what  principle  the  defendants 

suggested  during  the  argument;  sup-  are  to  be  held  liable  for  the  negligent 

pose  this  were   not  a  clerk,    but  a  acts  of  a  man  who  trespasses  in  their 

housemaid  whose  duty  it  was  to  clean  room  and  leaves  their  tap  running. 

up  the  room  and  attend  to  the  lava-  The  facts  show  that  the  clerk  was  a 

tory  and  wipe  out  the  basin,  then  I  trespasser  after  bis  master  had  left." 
think,  that  although  she  was  expressly  '  Johnson  «.  Barber,  5  Gilm.  (111.) 

prohibited  from  using  the  basin,  and  425,  50  Am.   Dec.  41G,  Armstrong  v. 

was  told  not  to  leave  the  tap  open,  Coolty,  5.  Gilm.  (111.)  512;  Sherman 

yet,  notwithstanding  tha  prohibition,  v.  Dutch,  16  111.    285;  Moir  v.  Hop- 

575 


§  740.  THE    LAW    OF    AGENCY.  [Book    lY. 

bj  a  learned  judge  in  a  case  involving  the  fraudulent  disposition 
by  an  agent  of  bonds  of  a  third  person,  with  which  he  had  been 
intrusted  bj  his  principal :  "  It  is  difficult  to  understand  upon 
what  ground  the  principal  should  be  held  liable  for  the  negli- 
gence of  his  agent  and  not  for  his  fraud,  where  the  act  is  done 
or  omitted  to  be  done  to  the  very  property  as  to  which  the 
agency  exists,  and  in  the  course  of  the  agency.  Fraud  by  which 
the  property  is  lost  is  generally  considered  one  of  the  forms  of 
gross  negligence.  What  is  the  proper  understanding  of  the 
phrase  *  within  the  scope  of  the  agency  ? '  Does  '  the  scope  * 
include  negligence  and  exclude  fraud  ?  It  cannot  properly  be 
restricted  to  what  the  parties  intended  in  the  creation  of  the 
agency,  for  that  would  also  exclude  negligence,  as  no  agent  is 
appointed  for  the  purpose  of  being  negligent,  any  more  than  for 
the  purpose  of  acting  fraudulently.  The  question  cannot  be 
determined  by  the  authority  intended  to  be  conferred  by  the 
principal.  We  must  distinguish  between  the  authority  to  com- 
mit a  fraudulent  act,  and  the  authority  to  transact  the  business 
in  the  course  of  which  the  fraudulent  act  was  committed.  Tested 
by  reference  to  the  intention  of  the  principal,  neither  negligence 
nor  fraud  is  within  '  the  scope  of  the  agency ' ;  but  tested  by 
the  connection  of  the  act  with  the  property  and  business  of  the 
agency,  fraud  in  taking  the  very  property  is  as  much  '  within  the 
scope  of  the  agency '  as  negligence  in  allowing  others  to  take  it. 
The  proper  inquiry  is,  whether  the  act  was  done  in  the  course  of 
the  agency  and  by  virtue  of  the  authority  as  agent.  If  it  was, 
then  the  principal  is  responsible,  whether  the  act  was  merely 
nesrliorent  or  fraudulent." ' 

S  740.  When  Principal  liable  for  Agent's  wilful  or  mali- 
cious Act.  While,  as  has  been  seen,  it  is  well  settled  that 
the  principal  is  liable  for  the  negligent  act  of  his  agent,  com- 
mitted in  the  course  of  his  employment,  it  has  been  held  in  many 
cases,'  that  he  is  not  liable  for  the  agent's  willful  or  malicious  act. 

kins,  Id.  315;  Keedy  e.  Howe,  73  111.  Wright  e.  Wilcox,  19  Wend.  (N.  Y.) 

130;'  Locke  v.  Stearns,  1  Mete.  (Mass.)  345,32  Am.  Dec.  507;  Tullerc.Voght; 

560,'  35  Am.    Dec.    382;  Reynolds  c.  13   111.  285;  Brown  v.  Purviance,    2 

Witte,    13  S.  Car.   6,  36  Am.  Rep.  H.  &  G.  (Md.)  316;  Foster  v.    Essex 

678.    '  Bank,  17  Mass.  479,  9   Am.  Dec.  168; 

'  Reynolds  v.  Witte,  supra.  Church  p.  Mansfield,  20  Conn.  284; 

«  McManus  v.  Crickett,  1  East,  106;  Bard  «.  Yoha,  26  Penn.  Bt.  482;  Mali 

576 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  740. 

In  the  language  of  Judge  Cowen,  which  fairly  states  the  doctrine 
of  these  cases,  "The  dividing  line  is  the  wilfulness  of  the  act."' 

The  tendency  of  modern  cases,  however,  is  to  attach  less 
importance  to  the  intention  of  the  agent  and  more  to  the  question 
whether  the  act  was  done  within  the  scope  of  the  agent's 
employment ;  and  it  is  believed  that  the  true  rule  may  be  said  to 
be  that  the  principal  is  responsible  for  the  wilful  or  malicious 
acts  of  his  agent,  if  they  are  done  in  the  course  of  his  employ- 
ment and  within  the  scope  of  his  authority  ; '  but  that  the  prin- 
cipal is  not  liable  for  such  acts,  unless  previously  expressly 
authorized,  or  subsequently  ratified,  when  they  are  done  outside 
of  the  course  of  the  agent's  employment,  and  beyond  the  scope 
of  his  authority,  as  where  the  agent  steps  aside  from  his  employ- 
ment to  gratify  some  personal  animosity,  or  to  give  vent  to  some 
private  feeling  of  his  own.' 

The  question  of  what  acts  are  within  the  scope  of  the  employ- 
ment, is  no  less  difficult  of  determination  here  than  in  those 
cases  where  the  principal's  liability  for  the  agent's  negligence  is 
involved,  but  the  principles  are  the  same.  Indeed,  the  determina- 
tion of  whether  the  principal  would  have  been  liable  had  the  same 
injury  resulted  from  the  agent's  negligence  or  unskillfulness,  will 
often  be  of  aid,  for  if  the  act  in  the  latter  case  would  be  within 
the  scope  of  the  employment,  it  is  none  the  less  so  where  the 
intention  was  wilful.     Where  the  principal  owes  to  third  per- 

V.  Lord,  39  N.  Y.  381,  100  Am.  Dec.  143,  40    Am.  Rep.   234;    Gilliam  ». 

448;  State®.  Morris,  &c.  R.  R.  Co.,  8  South,  «fec.  Alabama  R.    R.    Co.,  70 

Zab.  (N.  J.)  L.  360;  Illinois  Cent.  R.  Ala.  268;    Chicago,  &c.    Ry    Co.  v. 

R.  Co.  V.  Downey,  18  111.  259.  Dickson,  63  111.  151,    14  Am.  Rep. 

'  In  Wright  v.  Wilcox,  19  Wend.  114;  Nashville,  &c.    R.    R.    Co.    v. 

(N.  Y.)  345,  32  Am.  Dec.  507.  Starnes,  9  Heisk,  (Tenn.)  52,  24  Am. 

«  Croaker  v.  Chicago,  &c.  Ry  Co.,  Rep.  296;  Shea  «.   Sixth  Ave,  R.  R. 

36  Wis,  657,  17  Am.    Rep.  504;  Red-  Co.,  62  (N,  Y.)  180,  20  Am.  Rep,  480; 

ding  0.  South  Carolina  R.  R.  Co.,  3  Little  Miami  R.  R.  Co.  v.  Wetmore, 

S.  C.  1,  16  Am.  Rep,  681;  Stewart©.  19  Ohio  St.  110.   2  Am.   Rep.  373; 

Brooklyn,  &c.   R.  R.  Co.,  90  N.  Y.  Carter  ».  Howe  Sewing  Machine  Co., 

588,  43  Am.   Rep.  185;  Chicago, &c.  51  Md.  290,  34  Am.  Rep,  811. 
R.  R.  Co.  tJ.  Flexman,  103  111.  546,  42  »  McManus  v.  Crickett,  1  East  106; 

Am.    Rep.    33;   Goddard    «.    Grand  Gilliam  t».  South,  &c.  Alabama  R.  R. 

TrunkRy  Co.,57  Me.202;2  Am.Rep.  Co..  70  Ala.  268;  Stevens   v.    Wood- 

39;  McKinley  v.  Chicago,&c.  Ry  Co.,  Av:.r.l.  6  Q.  B.  Div.  318,  29  Eng.  Rep. 

44    Iowa    314,     24  Am.    Rep.    748;  p.    045;  and  cases    cited  in  note  2» 

Noblesville,  «&c.  Co.  v.  Gause,76  Ind.  page  576. 

37  577 


§  7^:1.  THE   LAW   OF   AGENOT.  [Book    lY, 

sons  the  performance  of  some  duty,  as  to  do  or  not  to  do  a  par- 
ticular act,  and  he  commits  the  performance  of  this  duty  to  an 
agent,  the  principal  cannot  escape  responsibility  civiliter  if  the 
agent  fails  to  perform  it,  whether  such  failure  be  accidental  or 
willful,  or  whether  it  be  the  result  of  negligence  or  of  malice.* 

These  principles,  as  will  be  seen,  have  been  most  frequently 
applied  in  modern  times  to  the  case  of  railroad  companies  and 
other  carriers  of  persons,  and  it  has  been  thought  that  a  different 
rule  of  liability  attached  to  such  companies  than  applies  to  other 
principals.  It  is  believed,  however,  that  there  is  no  real  ground 
for  the  distinction.  Another  element  does,  however,  enter  into 
these  cases,  in  respect  of  which  they  differ  from  many  others,  and 
this  is  the  peculiar  and  exacting  nature  of  the  duty  which  such 
carriers  owe  to  their  passengers.  While  carriers  of  persons  are 
not  insurers  of  the  safety  of  their  passengers,  they  are  bound  to 
exercise  the  highest  degree  of  care  for  their  safety,  protection 
and  comfort.  They  are  bound  to  take  all  those  precautions  and 
exert  all  of  those  efforts  which  are  requisite  to  render  the  trans- 
portation most  comfortable  and  least  annoying  to  their  passen- 
gers,* and  not  only  this,  but  there  is  also  an  implied  stipulation 
on  their  part,  says  Judge  Stokt,  "  not  for  protection  merely,  but 
for  respectful  treatment,  for  that  decency  of  demeanor  which 
constitutes  the  charm  of  social  life,  for  that  attention  which 
mitigates  evils  without  reluctance,  and  that  promptitude  which 
administers  aid  to  distress.  In  respect  to  females,  it  proceeds 
yet  further;  it  includes  an  implied  stipulation  against  general 
obscenity,  that  immodesty  of  approach  which  borders  on  lascivi- 
ousness  and  against  that  wanton  disregard  of  the  feelings  which 
aggravates  every  evil."  ' 

§  741.     Same  Subject— Illustrations.    The  scope  of  the  rulings 


'  Croaker  v.  Chicago  &c.  Ry  Co.,  Rounds©,  Delaware  «fec.  R.  R.  Co., 

3G  Wis.  657,  17  Am.   Rep.  504;  God-  64    N.    Y.  129,  21    Am.    Rep.    597; 

dard  v.  Grand  Trunk  Ry  Co.,  57  Me.  Hanson  v.    European  «&c.    Ry   Co., 

202,  2  Am.  Rep.    39;  Passenger   Ry  62  Me.  84,16  Am.  Rep.  404;  McKin- 

Co.  V.  Young,  21  Ohio  St.  518,  8  Am.  ley  v.  Chicago  &c.   Ry  Co.,  44  Iowa 

Rep.  78;  Bryant  v.   Rich,  lOo  Mass.  314,  24  Am.  Rep.  748. 

180,   8    Am.    Rep.  311;    Sherley    c.  '  See  cases  cited  in  preceding  note. 

Billings,  8   Bush   (Ky.)   147,   8  Am.  >  In    Chamberlain    v.    Chandler,  3 

Rep  451;  Shea  v.   Sixth  Ave.  R.  R.  Mason  (U.  S.  C.  C.)242. 
Co.,  63  N.  Y.  180,  20  Am.  Rep.  480; 

578 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  741. 

upon  this  subject  can  be  best  illustrated  by  some  selections  from 
the  adjudicated  cases.     Thus  in  a  leading  case  in  New  York,'  in 
which  the  older  and  more  rigid  rule  was  adhered  to,  it  appeared 
that  a  son  while  driving  his  father's  horses  and  wagon  about  his 
father's  business,  seeing  some  boys  attempting  to  get    into  the 
wagon,  whipped  up  his  horses  and  the  wagon  ran  over  one  of  the 
boys  who  was  seen  to  be  between  the  wheels  when   the  horses 
were  started.     An  action  was  brought  against  the  father  and  the 
son  jointly  to  recover  damages,  and  a  verdict  rendered   against 
them  both.     But  Cowen  J.,  said:  "It  is  impossible  to  sustain 
this  verdict  against  the  father.     It  is  difficult  to  infer  from  the 
evidence,  anything  short  of  a  design  in  Stephen   (the  son),  to 
throw  the  plaintiff's  boy  from  the  wagon ;   and  the  judge,  as  I 
understand  the  charge,  told  the  jury  that  the  defendants  were 
jointly  liable  in  that  view.     If  Stephen,  in  whipping  the  horses, 
acted  with  the  willful  intention  to  throw  the  plaintiff's  boy  off, 
it  was  a  plain  trespass,  and  nothing  but  a  trespass,  for  which  the 
master  of  Stephen  is  no  more  liable  than  if  his  servant  had  com- 
mitted any  other  assault  and  battery.     All  the  cases  agree  that  a 
master  is  not  liable  for  the  willful  mischief  of  his  servant,  though 
he  he  at  the  time,  in  other  respects^  engaged  in  the  service  of  the 
foi^mer.^     Why  is  the  master  chargeable  for  the  act  of  his  ser- 
vant?    Because  what  a  man  does  by  another  he  does  by  himself. 
The  act  is  within  the  scope  of  the  agency.     •  A  master  is  not 
answerable,'  says  Mr.  Hammond,  'for  every  act  of  his  servant's 
life,  but  only  for  those  done  in  his  relative  capacity.     To  chargg 
the  master,  it  must  always  be  shown  or  presumed,  that  the  rela- 
tion of  master  and  servant  subsisted  between  them  in  the  partic- 
ular affair.     If  the  master  is  liable  under  other  circumstances,  he 
18  so,  not  quatenus  master,  but  as  any  one  would    be  who  insti- 
gates an  injury.'     The  dividing  line  is  the  willfulness  of  the  act. 
If  the  servant  make  a  careless  mistake  of  commission  or  omission, 
the  law  holds  it  to  be  the  master's  business  negligently  done.     It 
is  of  the  very  nature  of  business  that  it  may  be  well  or  ill  done. 
We  frequently  speak  of  a  cautious  or  careless  driver  in  another's 
employment.     Either  may  be  in  the  pursuit  of  his  master's  busi- 

»  Wright  0.  Wilcox,  19  Wend.  (N.  on    Parties    83;    Croft  v.  Alison,    4 

Y.)  343,  33  Am.  Dec.  507.  Burn.  «&  Aid.  590;  1  Chit.  Gen.  Pr. 

soiling  1  Chit.   PI.  69;  McManus  80;  Bowcher  d.  Noidstrom,  1  Taunt. 

«.    Crickett,  1  East.    108,  Hammond  568. 

579 


§  741.  THE   LAW    OF    AGENCY.  [Book  lY. 

ness,  and  negligence  in  servants  is  so  common,  that  the  law  will 
hold  the  master  to  the  consequences  as  a  thing  that  he  is  bound 
to  foresee  and  provide  against. 

But  it  is  different  with  a  willful  act  of  mischief.  To  subject 
the  master  in  such  a  case,  it  must  be  proved  that  he  actually 
assented,  for  the  law  will  not  imply  assent.  In  the  particular 
affair,  there  is,  then,  no  longer  the  presumed  relation  of  master 
and  servant.  The  distinction  seems  to  resolve  itself  into  a  ques- 
tion of  evidence." 

The  rule  here  announced  by  Judge  Cowen  is  undoubtedly  that 
laid  down  by  the  older  cases.*  But  the  better  and  more  modern 
rule  clearly  is  that  the  mere  natilre  of  the  act  is  not  the  only 
criterion,  but  that  the  most  important  test  is  whether  the  act  was 
done  in  the  course  of  the  employment.  Thus  Ryan,  C.  J.,  says: 
""We  cannot  help  thinking  that  there  has  been  some  useless  sub- 
tlety in  the  books  in  the  application  of  the  rule  respondeat  super- 
ior,  and  some  unnecessary  confusion  in  the  liability  of  principals 
for  willful  and  malicious  acts  of  agents.  This  has  probably  arisen 
from  too  broad  an  application  of  the  dictum  of  Lord  Holt,  that 
*  no  master  is  chargeable  with  the  acts  of  his  servant  but  when 
he  acts  in  the  execution  of  the  authority  given  to  him,  and  the 
act  of  the  servant  is  the  act  of  the  master.'  *  For  this  would  seem 
to  go  to  excuse  the  master  for  the  negligence  as  well  as  for  the 
malice  of  his  servant.  One  employing  another  in  good  faith 
to  do  his  lawful  work,  would  be  as  little  likely  to  authorize  negli- 
gence as  malice ;  and  either  would  be  equally  dehors  the  employ- 
ment. Strictly,  the  act  of  the  servant  would  not,  in  either  case, 
be  the  act  of  the  master.  It  is  true  that  so  great  an  authority  as 
Lord  Kenyon  denies  this,  in  the  leading  case  of  McManus  v. 
Crickett,'  which  has  been  so  extensively  followed  ;  and  again,  in 
Ellis  ?;.  Turner,*  distinguishes  between  the  negligence  and  the 
willfulness  of  the  one  act  of  the  agent,  holding  the  principal  for 

VMcManus  ».  Crickett,  1  East.  106;  20    Conn.    384;    Bard  v.    Yohn,    20 

Ellis  I).  Turner,  8  T.  R.  531;  Middle-  Penn.  St.  482;  Mali  v.  Lord.  39  N. 

ton®.  Fowler,   1  Salk.  283;  Croft  e.  Y.  381,  100  Am.  Dec.  448;  State  «. 

Alison,  4B.  &  Aid.  590;  Bowcher  v.  Morris  &c.  Ry  Co.,  3  Zab.  (N.   Y.) 

Noidstrona,  1  Taunt.   568.     See  also  3G0;    Illinois    Cent.    R.    R.    Co.    ». 

Tuller   «.  Voght,  13  111.  285;  Brown  Downey.  18  111.  259. 

«.  Purviance,  2  H.  &  G.  (Md.)  316;  «  Mlddleton  v.  Fowler,  1  Salk.  283. 

Foster  v.  Essex  Bank,  17  Mass.  479,  •  1  East.  106,  supra. 

9  Am.  Dec.  168;  Church  v.  Mansfield,  «  8  Term  Rep.  531. 

580 


Chap,  v.]       LIA.BILITY  OF  PRINCIPAL  TO  THIRD   PERSON.  §  741. 

the  negligence  but  not  for  the  willfulness.  It  is  a  singular  com- 
ment on  these  subtleties,  that  McManus  v.  Crickett  appears  to 
rest  on  Middleton  v.  Fowler,  the  only  adjudged  case  cited  to 
support  it ;  and  that  Middleton  v.  Fowler,  was  not  a  case  of  mal- 
|ice,  but  of  negligence.  Lord  Holt  holding  the  master  in  that 
case  not  liable  for  the  negligence  of  his  servant,  in  such  circura- 
Btances  as  no  court  could  now  doubt  the  master's  liability.  In 
epite  of  all  the  learned  subtleties  of  so  many  cases,  the  true  dis- 
tinction ought  to  rest,  it  appears  to  us,  on  the  condition  whether 
or  not  the  act  of  the  servant  be  in  the  course  of  his  employ- 
ment."' 

It  does  not,  by  any  means,  follow  from  this  rule  that  the  prin- 
cipal is  liable  for  any  willful  or  malicious  act  of  his  agent,  but 
only  for  those  which  are  committed  by  the  agent  while  acting  in 
the  course  of  his  employment  and  within  the  scope  of  his  author- 
ity. At  the  same  time,  it  is  not  to  be  inferred  that  the  principal's 
liability  depends  upon  whether  he  has  or  has  not  intentionally 
authorized  the  doing  of  the  wrongful  act.  If  he  has  done  so, 
he  is,  of  course,  liable.  But  what  is  meant,  is,  that  if  the  agent, 
while  engaged  in  doing  something  which  he  is  authorized  to  do, 
and  while  acting  in  the  execution  of  his  authority,  inflicts  an 
injury  upon  third  persons,  though  willfully  or  maliciously,  the 
principal  is  liable.  But  if,  on  the  other  hand,  the  agent  steps 
aside  from  his  employment  to  do  some  act  having  no  connection 
with  the  principal's  business,  and  to  which  he  is  inspired  by  pure 
personal  and  private  malice  or  ill  will,  the  principal  is  not  liable. 

Thus  it  is  held  that  where  the  engineer  upon  a  locomotive  engine 
wantonly  and  maliciously  sounds  the  whistle  so  as  to  frighten 
the  horses  of  the  plaintiff,  a  traveller  upon  the  highway,  causing 
them  to  run  away  and  injure  the  plaintiff,"  or  where  he  wantonly 
and  willfully  runs  down  and  kills  the  plaintiff's  cattle,'  the  engi- 
neer's principal  is  responsible  for  the  injury  so  inflicted.     But  in 

•  Croaker  v.  Chicago  &  Northwest-  52,  24  Am.  Rep.  296;  Toledo.  Wabash 

ern  RyCo.  36  Wis.  657,  17  Am.  Rep.  &  West.  Ry  Co.  v.   Harmon,  47  lU. 

504;  See  also  Redding  v.  South  Caro-  298. 

lina  R.  R.  Co., 3  S.  C.  1,  16  Am.  Rep.  ^  Illinois  &c.  R.  R.  Co.  v.  Middles- 

681.  worth,  46  111.  494;  Detroit  &c.  R  R 

'  Chicago,  Burlington  &  Quincy  R.  Co.   v.  Barton,  61   Ind.  293,  Pritch- 

R.  Co.  0.  Dickson,  63  111.  151, 14  Am.  ard  v.  La  Crosse  &c.  R.  R  Co.,7  Wis. 

Rep.  114;  Nashville  &   Chattanooga  232. 
R.  R.  Co.  V.  Starnes,  9  Heisk.(Temi.) 

681 


§741. 


THE    LAW   OF   AGENCY. 


[Book  ly. 


such  a  case  it  was  held  that  exemplary  or  punitive  damages 
should  not  be  awarded  in  the  absence  of  evidence  that  the  prin- 
cipal, knowing  of  the  reckless  or  willful  character  of  the  agent, 
still  retained  him  in  his  employment.^ 

It  will  be  noticed  that  the  person  injured  in  these  cases  was 
not  a  passenger,  or  other  person,  to  whom  the  principal  sustained 
any  particular  duty  by  contract  of  carriage  or  otherwise. 

So  a  principal  is  responsible  for  a  malicious  prosecution  insti- 
tuted or  conducted  by  his  agent  in  the  course  of  his  employment. 
For  such  a  prosecution  begun  or  carried  on  by  the  express 
instructions  of  the  principal,  he.  is,  of  course,  liable ;  so  also  if 
he  has  subsequently  ratified  and  confirmed  the  act;  and  although 
there  are  conflicting  decisions,  the  better  rule  seems  to  be  that  if 
the  action  is  instituted  or  prosecuted  by  the  agent,  while  engaged 
in  the  course  of  his  employment,  and  within  the  scope  of  his 
authority,  the  principal  is  liable,  even  though  it  were  done  with- 
out his  knowledge  or  consent,  or  contrary  to  his  instructions.* 
And  a  corporation  is  liable  for  a  malicious  prosecution,'  or  for 
a  false  imprisonment,*  by  its  agent,  under  the  same  circumstan- 
ces as  an  individual. 


*  Nashville  «fcc.  R.  R.  v.  Starnes, 
tupra.  See  Cleghora  v.  New  York 
&c.  R.  R.  Co.,  56  N.  Y.  44,  15  Am. 
Rep.  375;  Goddard  v.  Grand  Trunk 
Ry  Co.,  57  Me.  202,  3  Am.  Rep.  39; 
Bass  V.  Chicago  &  N.  W.  Ry  Co.  42 
Wis.  654,  24  Am.  Rep.  437. 

8  See  cases  cited  in  two  following 
notes: 

Contra,  only  when  expressly  au- 
thorized or  ratified: — Wallace  v.  Fin- 
berg,  46  Tex.  35;  Dally  v.  Young,  3 
111.  App.  39. 

*  Wheless  v.  Second  Nat.  Bank.  1 
Baxt.  (Tenn.)  469,  25  Am.  Rep.  783; 
Goodspeed  v.  East  Haddam  Bank,  22 
Conn.  580;  58  Am,  Dec.  439;  Iron 
Mountain  Bank  v.  Mercantile  Bank, 
4  Mo.  App.  505;  Williams  v.  Planters' 
Ins.  Co.,  57  Miss.  759,  34  Am.  Rep. 
494;  Vance -B.  Erie  Ry  Co.,  32  N.  J. 
L.  334;  Copley  v.  Grover  &  Baker 
Sewing  Machine  Co.,  2  Woods (U.  S. 
C.C.)  494;  National  Bank  v.  Graham, 


100  U.  S.  699;  Edwards  v.  Midland 
Ry  Co.,  6  Q.  B.  Div.  287,  29  Eng. 
Rep.  (Moak)  621 ;  Wheeler  &  Wilson 
Mnf  g  Co.  V.  Boyce,  36  Kans.  350,  59 
Am.  Rep.  571. 

Contra,  Owsley  v.  Montgomerj 
&c,  R,  R.  Co.,  37  Ala.  560;  Childs  v. 
Bank  of  Missouri,  17  Mo.  213.  Not 
where  the  prosecution  was  a  criminal 
one,  Gillett  v.  Missouri  Valley  R.  R. 
Co.,  55  Mo.  315,  17  Am,  Rep.  653; 
Only  when  expressly  authorized  or 
ratified.  Carter  v.  Howe  Machine 
Co,,  51  Md.  290,  34  Am,  Rep,  311. 

*  Wheeler  &  Wilson  Manf'g  Co.  », 
Boyce,  36  Kans,  350,  59  Am,  Rep. 
571.  "It  is  a  well  established  prin- 
ciple of  jurisprudence"  says  John- 
ston, J,  in  this  case,  "  that  corpora- 
tions may  be  held  liable  for  torts  in- 
volving a  wrong  intention,  such  as 
false  imprisonment,  and  exemplary 
damages  may  be  recovered  against 
them  for  the  wrongful  acts  of  their 


682 


Cliap.  v.]        LIABILITY  OF  PKINCIPAL  TO  THIRD    PERSON.  §  Til. 

But  where  in  addition  to  the  duties  wliich  are  owing  to  every 
individual,  the  principal  has  assumed  special  responsibilities  by 
contract  or  operation  of  law,  as  to  carry  the  individual  as  a 
passenger  in  a  public  conveyance,  the  rule  of  liability  is  pro- 
perly enforced  with  great  strictness.  It  has  been  thought  that 
these  cases  stood  upon  a  distinct  ground,  but  the  distinction 
seems  to  be  unnecessary.  There  can  certainly  be  no  question 
that  an  agent  who  violates  the  duty  which  the  principal  owes  to 
the  passenger,  is  to  be  deemed  to  have  done  so  while  acting 
in  course  of  his  employment. 

Thus  where  a  railway  brakeman  assaulted  and  grossly  insulted 
a  passenger,  upon  the  false  pretense  that  the  passenger  had  not 
surrendered  his  ticket,  the  company  was  held  liable.'  And  the 
same  result  ensued  where  the  conductor  of  a  passenger  train  had 
willfully  and  wrongfully  caused  passengers  to  be  ejected  from  the 
train  ; "  where  the  steward  and  some  of  the  table  waiters  upon 
a  passenger-boat  wrongfully  and  without  provocation  assaulted  a 
passenger ;  •  where  the  conductor  of  a  passenger  train  kissed  a 
female  passenger  against  her  will ;  *  where  a  brakeman  struck  a 
passenger  in  the  face  with  a  lantern  because  the  passenger,  who 
had  lost  his  watch,  said  he  thought  the  brakeman  had  it ;'  where 
the  driver  of  a  street  railroad  car  maliciously  assaulted  a  passen- 
ger because  the  passenger  expostulated  with  the  driver  about  an 
assault  made  by  the  driver  upon  another  person  outside  the 
car ;  •  and  where  a  railway  brakeman  made  a  malicious  assault 
upon  a  passenger  who  had  attempted  to  enter  the  wrong  car.^ 

But  where  a  prospective  passenger,  while  seeking  to  get  his 
trunk  checked,  provoked  a  personal  quarrel  with  the  baggage- 
servants  and  agents  done  in  the  Am.  Rep.  311;  same  point,  Sherley 
course  of  their  employment,  in  all  «.  Billings,  8  Bush  (Ky.)  147,  8  Am. 
cases,  and  to  the  same  extent,  that      Rep.  451. 

natural     persons     committing     like  *  Croaker  v.  Chicago  &  N.  W.  Ry 

wrongs    would  be  held  liable.      In      Co.,  36  Wis.  657, 17  Am.  Rep.  504. 
such  cases  the  malice  and   fraud  of  •  Chicago  &  Eastern  R.  R.   Co.  v. 

the  authorized  agents  are  imputable      Flexman,  103  111.  546,   42  Am.  Rep. 
to  the  corporations  for  which  they      33. 
acted."  *  Stewart  v.  Brooklyn  &c.  R.    R. 

>  Goddard  v.  Grand  Trunk  Ry,  57      Co.,  90  N.  Y.  588,  43  Am.  Rep.  185. 
Me.  202,  2  Am.  Rep.  39.  '  McKinley  v.   Chicago  &  N.    W. 

» Passenger   R.  R.  Co.   v.  Young,      Ry  Co.,  44  Iowa,  314,  25  Am.  Rep. 
21  Ohio  St.  518,  8  Am.  Rep.  78.  748. 

3  Bryant  v.  Rich,  106  Mass.  180,  8 

583 


g  742^  THE   LAW    OF    AGENCY.  [Book  lYw 

master  and  was  struck  by  the  latter  as  an  act  of  personal  resent- 
ment, it  was  held  that  the  company  was  not  liable.* 

§742.  Same  Subject— Excessive  Force.  The  principal  is  also 
liable  to  third  persons,  where  the  agent,  though  autliorized  to  use 
reasonable  force  or  proper  means,  negligently,  or  wilfully  and 
maliciously,  uses  excessive  force  or  improper  means  in  the  course 
of  his  employment,  by  reason  of  which  such  third  persons  receive 
injury.' 

It  is  immaterial,  in  this  respect,  whether  the  excessive  force  or 
improper  means  be  the  result  of  a  lack  of  judgment  or  careless 
inattention  or  active  wilfulness;,  if  the  act  be  done  in  the  course 
of  the  employment,  the  principal  is  liable.* 

The  principle  is  of  frequent  application  to  the  case  of  the 
agents  and  servants  of  carriers  who  undertake,  with  unnecessary 
force  and  violence,  or  at  improper  times  or  places,  to  eject  from 
their  conveyances  persons  whom  they  would  be  authorized  to 
remove  under  proper  circumstances,*  but  it  is  by  no  means  con- 
fined to  such  cases.  It  applies  wherever  the  circumstances  are 
appropriate,  regardless  of  the  nature  of  the  occupation. 

S  743.  Liability  of  Principal  for  Agent's  false  or  fraudulent 
Eepresentations.  The  liability  of  the  principal  for  the  agent's 
false  or  fraudulent  representations,  rests  upon  the  same  ground 
as  his  liability  for  the  other  torts  of  the  agent.  For  such  false 
representations  as  he  has  expressly  authorized,  he  is,  of  course, 
liable.  But  he  is  liable,  also,  for  the  agent's  false  or  fraudulent 
representations  made  in  the  course  of  the  employment,  and  with- 
in the  scope  of  the  authority,  although  they  were  made  without 

>  Little  Miami  R.  R.  Co.  v.  Wet-  by  the  plaintiff,  the  act  was  flagrant, 

more,  19  Ohio  St.  110,  2  Am.  Rep.  reckless  and  illegal;  but  the  point  is, 

373,  was  the  act  within  the  scope  of  the 

s  Higgins  v.  Watervliet,  Turnpike,  employment    and  authority?     If   it 

&c.  Co.,  46  N.  Y.  23,  7  Am.  Rep.  was,  and  the  servant  in  doing  what 

293;  Rounds  v.  Delaware,  «fec.  R.  R.  he  did  undertook  to  act  for  the  com- 

Co.,  64  N.  Y.  129,  21  Am.  Rep.  597;  pany,  and  not  for  himself  or  for  his 

Hoffman  v.  New  York,  &c.  R.  R.  Co.,  own  ends,  the  company  is  not  exon- 

87  N.  Y.  25,  41  Am.  Rep.  337;  Han-  crated  although  the  servant  may  have 

Bon  V.  European,  &c.  Ry.  Co.,  62  Me.  deviated  from  instructions  in  execut- 

84,  16  Am.  Rep.  404.  ing  the  authority,  or  may  have  acted 

«  Hoffman  v.  New  York,  &c.  R.  R.  without  judgment,  or  even  brutally." 

Co..  mpra.     In  this  case  Andrews,  *  See  cases  cited  in  note  1,  supra. 
J.,  says:     "Assuming  the  case  made 

584 


Chap.  Y.]         LIABILITY  OF  PKINCIPAL  TO  THIRD   PERSON. 


74.3. 


his  knowledge  or  consent,  or  even  in  violation  of  his  express 
instructions.^  He  is  not,  however,  liable  for  every  false  or  fraud- 
ulent statement  or  representation  which  the  agent  may  see  fit  to 
make.  The  representation,  which  is  to  bind  the  principal,  must 
be  made  in  reference  to  the  subject-matter  of  his  agency ;  it 
must  be  made  while  the  agent  is  acting  as  such ;  and  the  making 
of  such  a  representation  must  be  within  the  apparent  scope  of 
his  authority.' 


*  "  When  a  principal  authorizes  an 
agent  to  do  a  certain  thing,  he  is 
answerable  for  and  bound  by  the  acts 
and  representations  of  the  agent  in 
accomplishing  that  end.  even  though 
the  agent  is  guilty  of  fraud  in  bring- 
ing about  the  result.  Having  given 
such  authority,  the  principal  is  re- 
sponsible for  the  fraudulent  as  well 
as  the  fair  means  used  by  the  agent. 
if  they  are  in  the  line  of  accomplish- 
ing the  object  of  the  agency.  Having 
put  the  agent  in  a  position  where  he 
may  perpetrate  a  fraud  upon  innocent 
third  parties,  the  principal  will  not 
be  allowed,  as  against  such  third  par- 
ties, to  retain  the  fruits  of  the  fraud 
and  defeat  a  claim  of  reparation  by 
saying  that  he  justifies  the  end,  but 
not  the  means  used  by  the  agent. 
Conceding  that  the  principal  is  in- 
nocent of  any  active  fraud,  yet,  when 
a  case  arises  that  he  or  an  innocent 
third  party  must  suffer  by  the  fraud 
of  the  agent,  the  principal  who  con- 
ferred authority  upon  the  agent  must 
suffer  the  loss  rather  than  the  inno- 
cent third  party.  This  the  principal 
may  generally  avoid  by  submitting  to 
a  rescission  of  the  contract,  and  re- 
storing what  he  may  have  received  as 
the  fruit  of  the  agent's  bad  faith.  To 
thus  bind  the  principal  by  the  fraud 
of  the  agent  is  not  to  bind  him  beyond 
the  scope  of  the  agency.  In  such  a 
case,  the  agent  does  not  exceed  his 
authority,  but  perpetrates  a  fraud  in 
the  exercise  of  his  authority  to  ac- 
complish the  object  of  the  agency, 


and  in  such  case  the  principal  is  liable 
for  the  fraud,  although  he  may  not 
have  directed  it  nor  had  knowledge 
of  it.  The  fraud  of  the  agent  becomes 
the  fraud  of  the  principal  as  to  third 
parties."  Zollars,  C.  J.,  in  Wolfe 
V.  Pugh,  101  Ind.  293,  304.  See  also 
Rhoda  V.  Annis,  75  Me.  17,  46  Am. 
Rep.  354;  Eilenberger  v.  Protective 
Mut.  F.  Ins.  Co.,  89  Peun.  St.  464; 
Tagg  V.  Tennessee  Nat.  Bank,  9 
Heisk.  (Tenn.)  479;  Reynolds  v. 
Witte,  13  S.  Car.  5,  36  Am.  Rep.  678; 
Locke  V.  Stearns,  1  Mete.  (Mass.)  560; 
White  V.  Sawyer,  16  Gray  (Mass.) 
586;  Howe  v.  Newmarch,  12  Allen 
(Mass.)  49;  Prabt  v.  Bunker,  45  Me. 
569;  Stickney  «.  Munroe.  44  Me.  195; 
Lynch  v.  Mercantile  Trust  Co.,  18 
Fed.  Rep.  486;  Jewett  v.  Carter,  133 
Mass.  335;  Kibbe  v.  Hamilton  Ins. 
Co.,  11  Gray  (Mass.)  163. 

Contra,  see  Kennedy  v.  McKay,  14 
Vroom.  (N.  J.)  288,  39  Am.  Rep.  581. 
A  principal  who  employs  an  agent  to 
sell  his  real  estate  is  liable  for  a  false 
representation  made  by  the  agent  as 
the  condition,  situation,  title,  bound- 
aries and  encumbrances  of  the  land. 
Rhoda  V.  Annis,  75  Me.  17,  46  Am. 
Rep.  354;  Wolfe  v.  Pugh,  101  Ind. 
293;  Lynch  v.  Mercantile  Trust  Co., 
18  Fed.  Rep.  486;  Law  v.  Grant,  37 
Wis.  548;  or  for  a  fraudulent  state- 
ment as  to  when  possession  would  be 
given,  Lamm  v.  Port  Deposit  Home- 
stead Assn,  post. 

»  Lamm  v.  Port  Deposit  Homestead 
Assn,  49  Md.  238,  33  Am.  Rep.  246. 


585 


§  743.  THE    LAW    OF    AGENCY.  [Book    IV. 

In  order  to  maintain  an  action  for  the  fraud,  it  must  appear, 
in  this,  as  in  other  cases,  1.  That  the  representations  were  made 
with  a  knowledge  of  their  falsity,  and  with  an  intent  to  deceive  ; 
or,  2.  That  they  were  made  recklessly  and  heedlessly,  and  with- 
out any  knowledge  or  reasonable  ground  for  belief  in  reference 
to  the  subject ;  or  3.  That,  though  they  were  believed  to  be  true, 
the  party  making  them  had  no  reasonable  grounds  for  such  belief, 
and  yet  made  the  representations  positively,  as  of  facts  known 
to  him  to  be  true.  4.  It  must  also  appear  that  they  were  material, 
and  that  the  other  party  was  deceived  by  them.^ 

The  representations  must  also  be  representations  of  fact.^  as 
distinguished  from  representations  of  law\  and  they  must  also 
be  assertions  of  fact  as  distinguished  from  the  mere  expression 
of  opinion.  They  must  also  be  representations,  upon  which  the 
other  party,  whom  they  affect  injuriously,  had  a  right  to  rely, 
and  did  rely.  If  the  representation  be  mere  matter  of  opinion, 
or  be  of  a  fact  equally  within  the  knowledge  of  both  parties,  or 
be  one  upon  which  the  party  had  no  right  to  rely,  then  the  rep- 
resentation, though  acted  upon,  will  create  no  cause  of  action.* 
Thus  one  who  has  a  claim  against  an  insurance  company  for  a 
loss,  and  is  induced,  by  the  false  representations  of  the  company's 
agent  that  his  policy  has  been  forfeited  by  non-occupancy,  or  that 
he  has  no  enforceable  claim,  to  settle  for  less  than  the  amount  of 
his  claim,  has  no  cause  of  action  against  the  company  for  such 
representations.'  So,  in  an  action  against  a  corporation,  for  deceit 
by  false  representations,  made  by  an  agent,  in  the  sale  of  goods 
manufactured  and  sold  by  it  for  a  particular  purpose,  there  can 
be  no  recovery  without  proof  of  bad  faith  or  absence  of  reason- 
sonable  grounds  of  belief.  * 

>  Erie  City  Iron  Works  t.  Barber,  t>.   Cowgill,   5  Blackf.    (Ind.)  18,  33 

106  Penn.  St.  125.  51  Am.  Rep.  508;  Am.  Dec.  49;  Moore  c.  Turbeville,  3 

Cowley*.  Smith,  46  N.  J.  L.  380,  50  Bibb.    (Ky.)  602.  5  Am.    Dec.    643; 

Am.  Rep.  432.     These  cases  are  par-  Saunders   v.   Hatteman,   2  Ired.  (N. 

ticularly  full  upon  the  subject,  the  C.)  32,  37  Am.  Dec.  404;  Anderson 

latter  containing  a  valuable  collection  t.  Burnett,  5  How.   (Miss.)  165,   35 

of  the  English  cases.   See  also  Lynch  c.  Am.  Dec.  425. 

Mercantile  Trust  Co.,  18  Fed. Rep. 486.  »  Thompson  c.   Phoenix   Ins.    Co., 

'  .(Etna  Ins.  Co.  e.  Reed,   33  Ohio  supra;  .^tna  Ins.  Co.  v.  Reed,  supra; 

St.  283;  Mayhew  t).  Phoenix  Ins.  Co.,  Mayhew  t?.  Phoenix  Ins.   Co.,  supra. 

23  Mich.  105;  Thompson  «.  Phoenix  Ins.  *  Erie  City  Iron  "Works  v.   Barber, 

Co., 75  Me.  55;  46  Am.  Rep.  357;  Foley  106  Penn.  St.  125,  51  Am.  Rep.  508. 

586 


Chap,  v.]        LIABILITY  OF  PRINCII  A.L  TO  THIRD    PERSON.  §  745. 

Les8  than  this  will,  in  many  cases,  suffice  to  sustain  an  action 
for  a  breach  of  warranty,  for  damages  may  be  recovered  for  such 
a  breach,  though  the  party  making  the  warranty  in  good  faith 
believed  it  to  be  true,*  but  less  than  this  will  not  sustain  an  action 
for  the  fraud. 

These  rules  apply  as  well  where  the  principal  is  a  corporation 
as  in  any  other  case.* 

§  744.  Same  Subjeot— Third  Person's  Remedies.  The  party 
injured  by  the  agent's  fraud,  if  he  desires  to  take  the  initiative, 
has  ordinarily  his  choice  of  three  remedies  :  a.  he  may  promptly 
restore  what  he  has  received  under  the  contract,  rescind  the  con- 
tract, and  recover  what  he  has  parted  with  in  pursuance  of  it ; '  or 
b.  he  may  retain  what  he  has  received,  and  bring  his  action  for  the 
fraud  practiced  upon  him ;  *  or,  c.  he  may  retain  what  he  has 
received  and,  waiving  the  fraud,  bring  his  action,  based  upon  the 
contract,  for  damages  sustained  by  reason  of  its  breach.'  If,  on 
the  other  hand,  he  prefers  to  act  upon  the  defensive,  he  may 
avail  himself  of  the  fraud  either  in  total  bar «  of  an  action  brought 
against  him  by  the  principal,  or  by  way  of  the  reduction  of  dam- 
ages.^ 

§  745.  Principal's  civil  Liability  for  Agent's  criminal  or  penal 
Act.  The  principal's  civil  liability  for  his  agent's  criminal  or 
penal  act  rests  upon  the  same  considerations,  and  is,  in  many 
aspects,  of  the  same  nature,  as  his  liability  for  his  agent's  torts 
generally.  Thus,  as  an  illustration  of  that  class  of  cases  in  which 
a  criminal  intent  is  necessary  to  constitute  the  offense,  the  malic- 
ious assault  of  a  conductor  upon  a   railway  passenger  may  be 

*  Erie  City  Iron  Works  v.  Barber,  Tkunket,  J.,  in  Erie  City  Iron  Works 

supra.     This  principle  is  elementary,  v.  Barber,  106  Penn.  St.  125,  51  Am. 

and  requires  no  extensive  citation  of  Rep.    508;    Lamm  v.    Port    Deposit 

authorities  in  this  place.  Homestead  Assn,  49  Md.  233,  33  Am. 

«  "As  it  can  only  speak  or  act  by  Rep.  246. 

agent,   there  is  stronger  reason   for  « Wolfe    e.    Pugh,    101    Ind.   293; 

holding  it  answerable  for  the  acts  and  Rhoda  v.   Annis,  75  Me.  17,  46  Am. 

representations  of    the    agent,   done  Rep.  354. 

within  the  ostensible    scope    of  his  *  Rhoda  v.  Annis,  supra;  Lynch  v. 

authority  and  while  transacting  the  Mercantile  Trust  Co.,  18  Fed.  Rep. 

business  of  the  principal,  than  when  486. 

the    principal  is    a   natural  person.  «  Rhoda  v.  Annis,  supra. 

However  the  same  rule  applies  alike  •  See  post,  %%  773-775. 

to   natural    and   artificial    persons."  ">  See  post.  %%  773-775. 

587 


§  745.  TUE    LAW    OF    AGENCY.  [Book  IV, 

adverted  to.  Here,  as  has  been  seen,  the  principal  is  liable  in  a 
civil  action  by  the  person  injured,  for  damages  occasioned  bj  the 
injury.  At  the  same  time  the  assault  is  an  offense  against  the 
State,  which  the  State  may  and  does  punish  as  such.  As  respects 
the  individual  injured  the  act  is  a  tort;  as  respects  the  State,  it  is 
a  crime. 

But  there  is  also  another  class  of  cases  where  the  liability  is 
not  dependent  upon  the  intent,  but  upon  the  question  of  the 
infraction.  These  are  usually  the  subject  of  express  statutory 
prohibition,  based  often  npon  the  police  power  of  the  State,  and 
making  that,  which  might  under  other  circumstances  be  a  thing 
innocent  or  indifferent  in  itself,  a  wrong  prohibited  under  a  pen- 
alty,— a  malum  proMhitum.  as  distinguished  from  a  malum  in 
se.  Of  this  class,  the  now  common  legislation  providing  for  the 
recovery  of  penalties  or  damages  for  the  prohibited  sale  of  intox- 
icating liquors,  furnishes  a  well-recognized  illustration. 

Thus  in  an  action  to  recover  a  penalty  fixed  by  law,  alleged  to 
be  due  by  reason  of  the  unlawful  sale  of  intoxicating  liquors  by 
an  agent,  the  Supreme  Court  of  Massachusetts  said :  "  The 
action  is  brought  under  a  statute  which  makes  that  a  tort  which 
was  not  so  before,  and  provides  for  the  recovery  of  damages 
against  the  tort-feasor.  The  tort  consists  in  selling  intoxicating 
liquor  to  one  who  has  the  habit  of  using  it  to  excess,  after  notice 
of  his  habit  and  a  request  from  his  wife  not  to  sell  such  liquor  to 
him.  The  defendant  engages  in  the  business  of  selling  liquor 
voluntarily.  He  chooses  to  intrust  the  details  of  the  business 
to  a  servant.  If  he  forbids  the  making  of  sales  to  the  intemper- 
ate person,  and  his  servant  negligently,  through  forgetfulness  of 
the  instruction  given  him,  or  through  a  failure  to  recognize  the 
person,  continues  to  make  sales  to  that  person,  there  is  no  reason 
why  the  defendant  should  not  be  responsible  for  the  wrongful 
act.  The  sale  is  his  sale,  made  in  the  performance  of  his  busi- 
ness, and  is  an  act  within  the  general  scope  of  the  servant's 
employment."  '  And  the  same  result  would,  within  the  princi- 
ples already  considered,  undoubtedly  follow  though  the  act  was 
willful.' 

>  George  e.  Gobey,  138  Mass.  289,      Knoble,  35  Wis.   85;   Smith  e.  Rey- 
85  Am.  Rep.  376.    See  also  Worley  v.      nolds,  8  Hun  (N.  Y.)  130. 
Spurgeon,  38  Iowa  465;  Peterson  v.  sKreiter  v.  Nichols,  28  Mich.  496; 

Kehrig  ».  Peters,  41  Mich.  475. 

588 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §745. 

But  here,  as  in  other  cases,  the  principal  is  liable  only  while 
the  agent  was  acting  within  the  scope  of  his  employment.  If  the 
agent  has  gone  outside  of  that,  to  commit  a  criminal  act,  the  prin- 
cipal is  not  liable.  Thus  where  an  armed  watchman,  employed 
by  the  owners  of  a  brewery  to  guard  their  premises  and  preserve 
the  peace,  pursued  a  person,  who  had  been  acting  on  the  prem- 
ises in  a  drunken  and  disorderly  manner,  and,  while  the  latter 
was  retreating  and  was  off  of  the  premises,  killed  him,  it  was  held 
that  the  proprietors  of  the  brewery  were  not  liable.  Without 
determining  whether  the  principals  would  be  liable  in  any  event 
for  such  an  act,  the  court  held  that  the  fact  that  the  deceased  was 
retreating  from  the  brewery  at  the  time  he  was  shot,  showed  con- 
clusively that  the  shot  was  not  fired  either  in  the  defense  of  the 
brewery  or  in  the  line  of  the  watchman's  duty.' 

Neither  will  the  penalty  fixed  by  law  attach  to  the  principal 
where  the  act,  on  account  of  which  it  is  alleged  to  have  been 
incurred,  was  committed  by  the  agent  without  the  knowledge  or 
consent  of  the  principal,  and  for  some  private  and  personal  object 
of  the  agent.  This  rule  is  well  illustrated  by  the  decisions  grow- 
ing out  of  the  enactments  against  usury. 

Thus,  if  the  principal  place  in  the  hands  of  his  agent  money 
to  be  loaned  on  the  principal's  account,  and  the  agent,  by  the 
authority,  or  with  the  knowledge  and  consent  of  the  principal, 
exacts  or  receives  from  the  borrower  something  by  way  of  bonus, 
commission  or  interest  in  excess  of  legal  interest,  the  taint  of 
nsnry  will  attach  to  the  principal,  if  he  receives  the  excess,  or  if 
he  permits  the  agent  to  keep  it  as  part  of  his  compensation.' 
And  the  same  result  will  attach  although  the  principal  did  not 
authorize  or  have  knowledge  of  the  usury  at  the  time,  if  with 
knowledge,  he  subsequently  receives  the  benefit  of  it.* 

But  where  the  agent  is  authorized  to  loan  for  legal  interest 
only,  and,  without  the  knowledge  or  consent  of  the  principal, 
exacts  from  the  borrower  a  usurious  interest  for  the  agent's  own 
private  benefit,  and  the  principal  does  nothing  subsequently  to 
ratify  the  act,  the  usury  will  not  affect  the  principal.*     In  such  a 

•  Golden  r.  Newbrand,  52  Iowa  59,  field,  3  Neb.  256;  Cheney  v.  White,  5 

85  Am.  Rep.  257.  Neb.  261,  25  Am.  Rep.  487;  Cheney 

«  Payne  v.   Newcomb,  100  111.  611,  t>.  Woodruff,  6  Neb.  151. 

89  Am.   Rep.  69;  Rogers  v.  Bucking-  3  Payne  v.  Newcomb,  supra. 

ham,    33   Conn    81;   Philo  u.  Butter-  <  Dagnall  v.  Wigley,    11  East  43; 

589 


§746. 


THE    LAW    OF   AGENCY. 


[Book  IT. 


case,  the  fact  that  the  principal  receives  from  the  agent  the  obli- 
gations of  the  borrower  and  attempts  to  enforce  them,  will  not  be 
deemed  to  be  a  ratification  of  the  usury.'  Where,  however,  the 
agent  takes  the  security  in  his  own  name,  as  principal,  upon 
usurious  interest,  the  borrower  supposing  him  to  be  the  principal, 
the  real  principal,  if  he  seeks  to  avail  himself  of  the  security, 
will  be  bound  by  the  usury.* 

§  746.  Principal's  criminal  Liability  for  Agent's  criminal  or 
penal  Acts.  But  it  is  not  only  in  a  civil  action  that  the  principal 
may  be  made  liable  for  the  criminal  or  penal  acts  of  his  agent ; 
lie  may  be  held  criminally  liable  also  under  certain  circumstances. 
Thus  the  principal  is  unquestionably  so  liable,  in  greater  or  less 


Solarte  v.  Melville,  7  B.  &  0.  430; 
Barretto  v.  Snowden,  5  Wend.(N.  Y.) 
181;  Gondii  v.  Baldwin,  21  K  Y.  219, 
78  Am.  Dec.  137;  Bell  v.  Day,  33  N. 
Y.  165;  Conover*.  Van  Mater,  18  N. 
J.  Eq.  481;  Rogers  v.  Buckingham, 
33  Comi.  81;  Gokey  v.  Knapp,  44 
Iowa  83;  Wyllis  v.  Ault,  46  Iowa  46; 
Bingham  v.  Myers,  51  Iowa  397,  33 
Am.  Rep.  140;  Callt).  Palmer,  116  U. 
S.  98;  Muir  v.  Newark  Savings  Inst., 
1  Green  (N.  J.)Eq.  537;  Manning©. 
Young,  28  N.  J.  Eq.  568;  Gray  t>. 
Van  Blarcom,  29  Id.  454.  See  also 
Ballinger  v.  Bourland,  87  111.  513,  29 
Am.  Rep.  69;  Phillips  v.  Roberts,  90 
111.  492;  Boylston  v.  Bain,  Id.  283; 
Acheson  v.  Chase,  28  Minn.  211. 

See  also  Sherwood  v.  Roundtree,  33 
Fed.  Rep.  113  (distinguishing  Call  v. 
Palmer,  supra);  Fisher  v.  Porter,  23 
Fed.  Rep.  162;  Coudeit  v.  Flagg,  31 
N.  J.  Eq.  394;  White  v.  Dwyer,  31 
Id.  40;  Forbes  o.  Baaden,  31  Id.  881; 
Boardman  v.  Taylor,  66  Ga.  838;  Cox 
».  Life  Ins.  Co.,  113  111.  383  (distin- 
guishing Payne  v.  Newcomb,  supra) 
Borcherling  v,  Trefz,  40  N.    J.   Eq 
503;  Eddy  v.    Badger,   8  Biss.    238 
Fellows  V.  Longyor,  91  N.  Y.  330 
Wyck  V.   Watters,    81    N.    Y.   353 
Dusenbury  v.  Seeley,  87  N.  Y.  634 
Alger  V.  Gardner,  54  N.  Y.  360;  Lyon 


V.  Simpson,  12  Daly  (N.Y.)  58;  Wyeth 
V.  Braniff,  84  N.  Y.  637. 

The  contrary  rule  is  enforced  in 
Nebraska.  Thus  in  Philo  ».  Butter- 
field,  3  Neb.  256,  the  court  say:  "  It 
is  a  settled  rule  of  law  which  will  not 
be  questioned,  that  in  all  cases  where 
a  person  employs  another  as  his  agent 
to  loan  money  for  him,  and  places  the 
funds  in  the  hands  of  the  agent  for 
Buch  purpose,  the  principal  is  bound 
by  the  acts  of  his  agent;  and  if  the 
agent  charges  the  borrower  of  such 
money  unlawful  interest,  or  even 
demands  and  receives  from  the  bor- 
rower a  bonus  for  such  loan,  and 
appropriates  it  to  his  own  individual 
use,  either  with  or  without  the  knowl- 
edge of  his  principal,  the  principal  is 
affected  by  the  act  of  his  agent,"  and 
this  doctrine  is  reaffirmed  in  later 
cases:  Cheney®.  White,  5  Neb.  261, 
25  Am.  Rep.  487;  Cheney  v.  Wood- 
ruff, 6  Neb.  151;  Olmstead  v.  New 
England  Mortgage  Security  Co.,  11 
Neb.  487;  Cheney  v.  Eberhardt,  8 
Neb.  423. 

'  Thompson  o.  Craig,  16  Abb.  Pr. 
N.  S.  33;  Smith®.  Tracy,  36  N.  Y 
84;  Hoover  v.  Greenbaum,  63  Barb. 
(N.  Y.)  188. 

2  Erickson  «.  Bell,  53  Iowa  637,  36 
Am.  Rep.  246. 


590 


Chap,  v.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  746. 

degree,  where  he  is  present  and  co-operates  with  the  agent,  or 
encourages,  aids  or  abets  him  ;  or  wliere,  though  not  present,  he 
expressly  or  impliedly  commands,  encourages  or  incites  the  doing 
of  the  act.'  He  would  be  so  liable  if  he  directed  the  doing  of 
an  act  which  was  in  itself  a  crime,  or  which  necessarily  involved 
or  required  the  commission  of  a  crime.' 

But  as  a  general  rule  he  cannot  be  held  criminally  liable  for 
the  act  of  his  agent  committed  without  his  knowledge  or  consent.' 
There  is,  however,  a  class  of  cases,  as  has  been  seen,  where,  by 
statutory  enactment,  the  doing  of  a  certain  act,  otherwise  perhaps 
innocent  or  indifferent,  or  at  the  most  not  criminal,  is  expressly 
prohibited  under  a  penalty.  Of  this  class  are  many  of  the  stat- 
utes in  the  nature  of  police  regulations  which  impose  penalties 
for  their  violation,  often  irrespective  of  the  question  of  the  intent 
to  violate  them ;  the  purpose  being  to  require  a  degree  of  dili- 
gence for  the  protection  of  the  public  which  shall  render  viola- 
tion  exceedingly   improl)able,    if   not   impossible.*     Similar   to 


»  See  Bishop  on  Crirn.  Law,  §  649. 

*  See  Bishop  on  Crim.  Law,§§  649- 
651.  State  v.  Smith.  78  Me.  260,  57 
Am.  Rep.  803. 

•  Commonwealth  v.  Nichols,  10 
Mete.  (Mass.)  259,  43  Am.  Dec.  432; 
Hipp  e.  State,  5  Blackf.  (lad.)  149,  33 
Am.  Dec.  463;  Commonwealth  v. 
Putnam,  4  Gray  (Mass.)  16;  Somerset 
«.  Hart,12  Q.B.Div.  360,  37Eag.Rep. 
624.  A  principal  is  not  liable  crim- 
inally for  the  act  of  his  agent  in  sell- 
ing liquors  to  an  intoxicated  person 
without  the  principal's  knowledge  or 
assent.  People  v.  Parks,  49  Mich. 
333.  His  assent  must  be  shown. 
Commonwealth  v.  Putnam,  supra. 

A  principal  cannot  be  arrested 
under  a  statute  permitting  arrest 
"  where  defendant  has  been  guilty  of 
a  fraud  in  contracting  the  debts"  for 
frauds  committed  without  his  knowl- 
edge or  authority  by  his  agent  in 
purchasing  goods  for  him.  Hath- 
away V.  Johnson,  55  N.  Y.  93,  14 
Am.  Rep.  186. 

1  In  People  t.  Roby,  52  Mich.  579, 


53  Am.  Rep.  270,  Coolbt,  C.  J.  says: 
"I  agree  that  as  a  rule  there  can  be 
no  crime  without  a  criminal  intent; 
but  this  is  not  by  any  means  a  uni- 
versal rule.  One  may  be  guilty  of 
the  high  crime  of  manslaughter  when 
his  only  fault  is  gross  negligence;  and 
there  are  many  other  cases  where 
mere  neglect  may  be  highly  criminal. 
Many  statutes,  which  are  in  the 
nature  of  police  regulations,  as  this 
is,  impose  criminal  penalties  irres- 
pective of  any  intent  to  violate  them ; 
the  purpose  being  to  require  a  degree 
of  diligence  for  the  protection  of  the 
public  which  shall  render  violation 
impossible.  Thus,  in  Massachusetts, 
a  person  may  be  convicted  of  the 
crime  of  selling  intoxicating  liquor 
as  a  beverage,  though  he  did  not 
know  it  to  be  intoxicating;  Common- 
wealth V.  Boynton,  3  Allen  160;  and 
of  the  offense  of  selling  adulterateil 
milk,  though  he  was  ignorant  of  its 
being  adulterated;  Commonweal tli 
V.  Farren,  9  Allen  489;  Common 
wealth  V.   Holbrook,   10  Allen,  200; 


591 


§T46. 


TUE    LAW    OF    AGENCY. 


[Book  IV. 


these  statutes  were  many  of  the  well  settled  doctrines  of  the 
common  law,  as  for  example,  the  law  of  libels  and  nuisances.  It 
is  the  duty  of  the  principal  to  see  to  it  that  such  statutes  are  not 


Commonwealth  v.   Waite,  11  Allen 
264;  Commonwealth  v.  Smith,    103 
Mass.  444.     See  State  v.  Smith,  10  R. 
I.  258.     In  Missouri  a  magistrate  may 
be  liable  to  the  penalty  of  perform- 
ing   the    marriage     ceremony     for 
minors  without  consent  of  parents  or 
guardians,    though    he  may  suppose 
them  to  be  of  the  proper  age.     Beck- 
ham V.   Nacke,  56  Mo.  546.     When 
the  killing  and  sale  of  a  calf  under  a 
specified  age  is  prohibited,  there  may 
be  a  conviction  though  the  party  was 
ignorant  of  the  animal's  age.     Com- 
monwealth   V.    Raymond,    97  Mass. 
567.     See  The  King  v.  Dixon,  3  M.  «fe 
S.  11.    In  State  v.  Steamboat  Co.,  13 
Md.  181,  a  common  carrier  was  held 
liable  to  the  statutory    penalty    for 
transporting  a  slave  on  its  steamboat, 
though  the  persons   in  charge  of  its 
business  had  no    knowledge    of  the 
fact.     A  case  determined  on  the  same 
principle  is  Queen  v.  Bishop,  5  Q.  B. 
Div.    259.    If    one's    business  is  the 
sale  of  liquor,   a  sale  made  by  his 
agent  in  violation  of  the  law  is  prima 
facie    evidence     of    his    authority. 
Commonwealth  v.   Nichols,  10  Met. 
259;  and  in  Illinois   the  principal  is 
held   liable  though  the   sale  by  his 
agent  was  in  violation  of  instructions. 
Noeckert).  People,   91   111.   494.    In 
Connecticut    It   has    been   held    no 
defense,  in  a  prosecution   for  selling 
intoxicating    liquor    to    a    common 
drunkard,  that  the  seller  did  not  know 
him  to  be  such.     Barnes  v.  State,  19 
Conn.  398.     It  was  held  in  Faulks  v. 
People,  39  Mich.  200,  under  a  former 
statute,  that  one   should   not  be  con- 
victed of  the  offense  of  selling  liquors 
to  a  minor  who  had  reason  to  believe 
and  did  believe  he  was  of  age;  but  I 
doubt  if  we  ought  so  to  hold  under 


the    statute  of  1881,  the  purpose  of 
which  very  plainly  is,  as  I  think,  to 
compel  every  person  who  engages  in 
the  sale  of  intoxicating  drinks  to  keep 
within  the  statute  at  his  peril.    There 
are  many  cases  in  which  it  has  been 
held,  under   similar  statutes,   that  it 
was  no  defense  that  the  seller  did  not 
know  or  suppose  the  purchaser  to  be 
a  minor.     State  v.   Hartfiel,  24  Wis. 
60;  McCutcbeon  v.  People,  69111.  601; 
Farmer  v.  People,  77  111.  323;  Ulrich 
V.  Commonwealth,  6  Bush.  400;  State 
».    Cain,    9  W.    Va.   559;  Common- 
wealth V.  Emmons,  98  Mass.  6;  Red- 
mond V.   State,    36  Ark.   58;   and  in 
Commonwealth    v.     Finnegan,    124 
Mass.  324,  the  seller  was  held   liable, 
though  the  minor  had  deceived  him 
by  falsely  pretending  he  was  sent  for 
the  liquor  by  another  person.     So  a 
person    has    been    held    liable    to  a 
penalty  for  keeping  naphtha  for  sale 
under    an    assumed    name,    without 
guilty    knowledge,    the    statute   not 
making  such  knowledge  an  ingredi- 
ent of  the  offense.    Commonwealth  e. 
Wentworth,   118   Mass.    441.     Other 
cases    might  be  cited,   and  there    is 
nothing  anomalous  in  these.     A  per- 
son   may    be    criminally    liable    for 
adultery  with   a  woman  he  did  not 
know  to  be  married.     Fox  v.   State,  3 
Tex.  App.  329;  or  for  carnal  knowl- 
edge of  a  female   under  ten  years  of 
age  though  he  believed  her    to    be 
older.     Queen  v.  Prince,  L.  R.  2  Cr. 
Cas.  154;  State  v.  Newton,  44  la.  45. 
And    other    similar    cases  might   be 
instanced."   See  also  Halsted  v.  State, 
12  Vroom  (N.    J.)  552,  32  Am.  Rep. 
247;  Redmond  v.  State,  36  Ark.  58,  38 
Am.  Rep.    24;  Farrell   v.    State.    32 
Ohio  St.  456,  30  Am.  Rep.  614;  King 
V.  State,   58  Miss.  737,  38  Am.  Rep. 


592 


Chap,  y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  746. 

violated  by  bis  agents  in  the  course  of  tbeir  employment.  For 
what  they  may  do  outside  of  the  employment,  be  is,  of  course, 
not  responsible ;  but  if  the  prohibited  act  be  done  by  them  in 
the  course  of  their  employment,  he  must  respond.  This  is  par- 
ticularly true  in  those  cases  where  the  principal  confides,  in  a 
greater  or  lesser  degree,  the  conduct  and  management  of  his  busi- 
ness to  his  agents.  He  selects  his  own  agents,  and  has  the 
power,  as  well  as  the  duty,  to  control  them  ;  and  if,  by  reason  of 
his  lack  of  oversight  or  their  own  carelessness  or  unfaithfulness, 
the  prohibited  act  is  done,  he  should  be  held  accountable.  He 
certainly  cannot  relieve  himself  from  responsibility  for  the  man- 
ner in  which  his  purposes  are  carried  out,  by  turning  over  the 
management  of  his  business  to  agents. 

Instances  of  these  principles  may  be  found  in  the  case  of  the 
publication  of  libels ;  the  smuggling  of  goods ;  the  sale  of 
unwholesome  or  adulterated  food  ;  the  erection  or  continuance  of 
nuisances ;  the  transportation  of  forbidden  goods ;  the  transac- 
tion of  business  without  a  license  and  the  like.  Frequent  illus- 
trations are  also  found  in  the  statutes  regulating  the  traffic  in 
intoxicating  liquors. 

Thus  booksellers  and  publishers  have  been  held  criminally  lia- 
ble for  publications,  issued  from  their  establishment,  in  the  regu- 
lar course  of  business,  although  the  particular  act  of  sale  or 
publication  was  done  without  their  knowledge ;  ^  a  trader  has 
been  held  liable  to  a  penalty  for  the  illegal  act  of  his  agent  in 
harboring  and  concealing  smuggled  goods,  although  the  principal 
was  absent  at  the  time ;  *  a  baker  has  been  held  liable  to  a  crimi- 
nal charge  for  selling  adulterated  bread,  although  the  adultera- 
tion was  put  in  by  his  servant,  and  although  he  did  not  know 
that  it  was  used  in  improper  quantities  ;  •  the  directors  of  a  gas 
company  have  been  held  liable  to  an  indictment  for  a  nuisance 
created  by  their  superintendent,  acting  under  a  general  authority 
to  manage  the  works,  though  they  were  personally  ignorant  of 

344;  Stem  t>.   State,  53  Ga,   229,  21  28  Eng.  Rep.   (Moak)  53,  as  to  the 

Am.  Rep.  266;  and  note  268.     George  effect  of  the  statutes  limiting  such 

V.  Gobey,  128  Mass.  289.  35  Am.  Rep.  liability. 

376.  '  Attorney    General    e.    Sidden,  1 

1  Rex  V.  Walter,  3  Esp.  21 ;   Rex  v.  Cromp,  &  Jer.  220, 

Gutch,  1    Moo.  &  M.  437.    But  see  »  Rex  v.  Dixon,  4  Camp.  12. 
Queen  v.  Holbrook,  3  Q.  B.   Div.  60, 

38  593 


§  747.  THE    LAW    OF   AGENCY.  [13ook  IV. 

the  particular  plan  adopted,  and  although  it  was  a  departure 
from  the  original  and  understood  method,  which  they  supposed 
him  to  be  following;'  a  saloonkeeper  has  been  held  criminally 
responsible  for  not  keeping  his  saloon  closed  upon  Sunday, 
though  it  appeared  that  it  was  opened  by  his  clerk,  without  his 
knowledge  or  consent,  but  while  he  was  on  the  premises,'  and 
an  indictment,  which  alleges  that  defendant  sold  spirituous 
liquors  without  legal  authority  and  contrary  to  the  statute,  is 
supported  by  evidence  that  he  sold  it  by  his  clerk,  servant  or 
agent.' 

Where  the  criminal  act  is  committed  by  a  known  agent,  this  is 
prima  facie  evidence  of  the  principal's  authority,*  but  he  may 
rebut  the  presumption  by  showing  that  the  act  was  not  in  fact 
authorized  or  assented  to  by  him.' 

§  747.  Principal's  Liability  for  Acts  of  independent  Con- 
tractor. The  principal's  liability  for  the  acts  of  his  agent,  within 
the  scope  of  his  authority,  depends  upon  the  fact  that  the  rela- 
tion of  principal  and  agent  exists.  It  is  the  principal's  will  that 
is  to  be  exercised  ;  his  purpose  that  is  to  be  accomplished ;  his 
are  the  benefits  and  advantages  which  ensue.  He  selects  liis  own 
agent,  puts  him  in  motion,  and  has  the  right  to  direct  and  control 
his  actions.  It  is,  therefore,  just  and  proper  that  he  should  be 
responsible  for  what  the  agent  does  while  so  employed.' 

*  Eex  V.  Medley,  6  C.  and  P.  293.  Bible  for  the  damages  sustained.    The 
»  People  V.  Roby,  53  Mich.  579,  50      master   selects  the  servant,    and  the 

Am.  Rep.  270.  servant  is  subject  to  his  control,  and, 

8  Commonwealth  v.   Park,  1   Gray  in  respect  of  the  civil  remedy,  the  act 

(Mass.)     553;      Commonwealth      v.  of  the  servant  is,  in  law,  regarded  as 

Holmes,  119   Mass.  195.  that    of  the    master.     But    it  is  not 

«  Commonwealth    v.    Nichols,    10  enough  in  order  to  establish  a  liabil- 

Metc.  (Mass.)  259,  43  Am.  Dec.  432.  ily  of  one  person  for  the  negligence  of 

»  See  cases  cited  in  note  3,  p.  593.  another,    to    show    that   the    person 

•  "  Where  one  person  has  sustained  whose  negligence  caused  the  injury 
an  injury  from  the  negligence  of  was  at  the  time  acting  under  an  em- 
another,  he  must,  in  general,  proceed  ploymentby  the  person  who  is  sougnt 
against  him  by  whose  negligence  the  to  be  charged.  It  must  be  shown,  in 
injury  was  occasioned.  If,  however,  addition,  that  the  employment  created 
the  negligence  which  caused  the  the  relation  of  master  and  servant 
injury  was  that  of  a  servant  while  between  them."  Andrews,  J.  in 
engaged  in  his  master's  business,  the  King  v.  New  York,  &c.  R.  R.  Co.,  66 
person  sustaining  the  injury  may  dis-  N.  Y.  181,  23  Am.  Rep.  37.  See  also 
regard  the  immediate  author  of  the  McCafferty  v.  Spuyten  Duyvil.  &c. 
mischief  and  hold  the  master  respon-  R.  R.  Co.,  61  N.  Y.  178,  19  Am.  ilcp. 

594 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  747. 


"Where,  however,  the  principal  has  not  this  right  of  control  a 
different  rule  prevails.  Neither  reason  nor  justice  requires  that 
he  should  be  held  responsible  for  the  manner  of  doing  an  act 
when  he  had  no  power  or  right  to  direct  or  control  that  manner,' 
If  therefore,  the  principal,  using  due  care  in  the  selection  of  the 
person,  enters  into  a  contract  with  a  person  exercising  an  inde- 
pendent employment,  by  virtue  of  which  the  latter  undertakes  to 
accomplish  a  given  result,  being  at  liberty  to  select  and  employ 
his  own  means  and  methods,  and  the  principal  retains  no  right 
or  power  to  control  or  direct  the  manner  in  which  the  work  shall 
be  done,  such  a  contract  does  not  create  the  relation  of  principal 
dTid  agent  or  master  and  servant,  and  the  person  contracting  for 
the  work  is  not  liable  for  the  negligence  of  the  contractor,  or  of 
his  servants  or  agents,  in  the  performance  of  the  work.*  The 
employment  is  regarded  as  independent  where  the  person  ren- 
ders service  in  the  course  of  an  occupation,  representing  the  will 
of  his  employer  only  as  to  the  result  of  his  work,  and  not  as  to 
the  means  by  which  it  is  accomplished.*     The  independent  con- 


267;  Clark  v.  Fry,  8  Ohio  St.  358.  72 
Am.  Dec.  590. 

'  "  The  liability  oif  any  one,  other 
than  the  party  actually  guilty  of  any 
wrongful  act,  proceeds  on  the  maxim, 
'Qui  facit  per  alium  facit  per  se.* 
The  party  employing  has  the  selection 
of  the  party  employed,  and  it  is  rea- 
sonable that  he  who  has  made  choice 
of  an  unskilful  or  careless  person  to 
execute  his  orders,  should  be  respou- 
dible  for  any  injury  resulting  from 
the  want  of  skill  or  want  of  care  of 
the  person  employed;  but  neither  the 
principle  of  the  rule,  nor  the  rule 
itself,  can  apply  to  a  case  where  the 
party  sought  to  be  charged  does  not 
stand  in  the  character  of  employer  to 
the  party  by  whose  negligent  act  the 
injury  has  been  occasioned."  Rolfe, 
B.  in  Hobbit  v.  Loudon,  &c.  Ry 
Co.,  4  Exch.  255. 

8  Milligan  ».  Wedge,  12  Ad.  &  El. 
737;  DeForrest  v.  Wright,  2  Mich. 
870;  Wood  v.  Cobb,  13  Allen  (Mass.) 
58;  Kellogg®.  Payne,  21  Iowa  575; 
King  V.  New  York.  &c.  R.  R.  Co..  66 

59i 


N.  Y.  186,  23  Am.  Rep.  37;  McCarty 
».  Second  Parish.  71  Me.  318,  36  Am, 
Rep  320;  Harrison  v.  Collins,  86 
Penn.  St.  156,  27  Am.  Rep.  699; 
Linton  v.  Smith,  8  Gray  (Mass.)  147; 
Bennett  v.  Truebody,  63  Cal.  509,  56 
Am.  Rep.  117;  Bailey  v.  Troy  & 
Boston  R.  R.  Co.,  57  Vt.  252,  52  Am. 
Rep.  129;  McCafferty  v.  Spuyten 
Duyvil,  &c.  R.  R.  Co.,  61  N.  Y.  178, 
19  Am.  Rep.  267;  Ilexamer  v.  Webb, 
101  K  Y.  377,  54  Am.  Rep.  703;  Hasa 
V.  Philadelphia,  &c.  Steamship  Co., 
88  Penn.  St.  2(39,  32  Am.  Rep.  462; 
Boswell  V,  Laird,  8  Cal.  469,  C8  Am. 
Dec.  345;  Hilllard  v.  Richardson,  3 
Gray  (Mass.)  349,  63  Am.  Dec.  743; 
City  of  St.  Paul  v.  Seitz,  3  Minn.  297, 
74  Am,  Dec.  753;  Clark  v.  Fry.  8 
Ohio  St.  358,  72  Am.  Dec.  590;  Cuff 
V.  Newark,  &c.  R  R.  Co.,  35  N.  J. 
L.  17,  10  Am.  Rep.  205;  Ryan  v.  Cur- 
ran,  64  lud.  345,  31  Am.  Rep.  123; 
Myer  v.  Ilobbs,  57  Ala.  175.  29  Am. 
Rep.  719. 

»  Harrison  v.  Collins.  86  Penn.  St. 
153,  27  Am.  Rep. 699;  Pack  v.  Mayor,, 


g  74-7.  THE    LAW    OF   AGENCY.  [Book  IV. 

tractor  is  usually  paid,  in  common  parlance,  by  the  job,  but  the 
fact  that  he  is  paid  by  the  day  does  not  necessarily  destroy  the 
independent  character  of  his  employment.' 

This  rule  of  immunity  from  liability  is,  however,  subject  to 
certain  exceptions.  No  one  can  lawfully  delegate  to  another  the 
authority  to  do  an  unlawful  act,  nor  can  one,  upon  whom  the  law 
imposes  the  performance  of  a  duty,  relieve  himself  from  respon- 
sibility for  its  non-performance,  by  committing  its  performance 
to  a  substitute.  Thus  if  the  thing  to  be  done  is  in  itself  unlaw- 
ful, or  if  it  is  per  se  a  nuisance,  or  if  it  cannot  be  done  without 
doing  damage,  he  who  causes  it  to  be  done  by  another,  be  the 
latter  servant,  agent,  or  independent  contractor,  is  as  much  liable 
for  injuries  which  may  happen  to  third  persons  from  the  act 
done,  as  though  he  had  done  the  act  in  person.* 

So  it  is  the  duty  of  every  person  who  does  in  person,  or  causes 
to  be  done  by  another,  an  act  which  from  its  nature  is  liable, 
unless  precautions  are  taken,  to  do  injury  to  others,  to  see  to  it 
that  those  precautions  are  taken,  and  he  cannot  escape  this  duty 
by  turning  the  whole  performance  over  to  a  contractor.*  Of  the 
same  nature  is  the  duty  which  the  law  imposes  upon  every  per- 
son who,  for  his  own  purposes,  brings  on  his  lands,  and  collects 
or  keeps  there,  anything  likely  to  do  mischief  if  it  escapes,  to 
keep  it  in  at  his  peril;  and  if  he  does  not  do  so,  he  is, primn. 
facie  answerable  for  all  the  damage  which  is  the  natural  conse- 
quence of  its  escape.* 

This  distinction  has  been  stated  in  a  recent  case  as  follows : 
"If   the  work  to  be  done  is  committed  to  a  contractor  to  be 

8N.  T.  223;  Barry  v.  St.  Louis,  17  Am.  Rep.  269;  Gray  v.  Pullen,  5  B. 

jlo.'l21.  &  9-  970,  117  Eng.  Com.  Law;  Bow- 

» Harrison  t».  Collins,  supra;   For-  ere.  Peate,  L.  R.  1  Q.  B.   Div.  341, 

syth  V.  Hooper,  11  Allen  (Mass.)  419;  16  Eng.  Rep.  (Moak)  374;  Tarry  v. 

Corbin    e.  America  Mills,  27  Conn.  Ashton,  1  Q.  B.  Div.  314,  16  Eng 

274.  Rep.  (Moak)  367;  Gorham    v.  Gross, 

«  Bailey  v.  Troy  &  Boston  R,  R  125  Mass.  233,  28  Am.  Rep. 224;  Stur- 

Co.,  57  Vt.  252,  53  Am.  Rep.  139;  ges  b.  Theological  Society,  130  Mass. 

Gorham  v.  Gross.  125  Mass.  333.  28  414,  39  Am.  Rep.  463. 

Am.   Rep.    334;  Eaton    «.    Railroad  *  Gorham  v.  Gross,  135  Mass.  233, 

Co.,'  59  Me.  530,  8  Am,   Rep.    430;  28  Am.    Rep.   234;  Fletcher  v.   Ry- 

Caswell    x>.    Cross,    130    Mass.    545;  lands,  L.  R.   1  Exch.  265 ;  Shipley  e. 

Water  Co.  t>.  Ware.  16  Wall.  (U.  S.)  Fifty  Associates,  106  Mass.    194,    8 

666.  -^.m.  Rep.  318. 

•  Wilson  V.  White,  71  Ga.  506,  51 

596 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  748. 

done  in  his  own  way,  and  is  one  from  which,  if  properly  done,  no 
injurious  consequences  to  third  persons  can  arise,  then  the  con- 
tractor is  liable  for  the  negligent  performance  of  the  work.  If, 
however,  the  work  is  one  that  will  result  in  injury  to  others 
unless  preventive  measures  be  adopted,  the  employer  cannot 
relieve  himself  from  liability  by  employing  a  contractor  to  do 
what  it  was  his  duty  to  do  to  prevent  such  injurious  consequences. 
In  the  latter  case,  the  duty  to  so  conduct  one's  own  business  as 
not  to  injure  another,  continuously  remains  with  the  employer."^ 

The  fact  that  the  contractor  expressly  agrees  to  assume  respon- 
sibility for  injuries  cannot,  of  course,  relieve  the  principal  if 
otherwise  liable.* 

§  748.  Some  Subject— Illustrations.  Some  illustrations  from 
the  numerous  cases  upon  this  subject  will  serve  to  make  the  dis- 
tinction plain.  Thus  in  a  leading  case  in  New  York,  a  railroad 
company  let  by  contract  the  entire  construction  of  its  road,  and 
the  contractor  sub-let  a  portion  of  the  work.  Through  the  neg- 
ligence of  the  men  employed  by  the  sub-contractor  in  performing 
the  work,  stones  and  rocks  were  thrown  by  a  blast  upon  plaintiff's 
adjoining  property,  and  injured  it.  The  court  held  that  this 
injury  did  not  necessarily  result  from  the  work  contracted  to  be 
done,  but  was  caused  by  the  unskillful  and  negligent  manner  in 
which  a  lawful  and  proper  thing  was  done,  and  that  the  railroad 
company  were  not  responsible.' 

So  the  owners  of  a  sugar  refinery  employed  a  rigger  to  remove 

•  Powers,  J.  In  Bailey  v.  Troy  &  shire  R  R.  Co.,  19  N.  H.  427,  51 
Boston  R.  R.  Co.,  57  Vt.  253,  53  Am.  Am.  Dec.  193,  and  so  where  the 
Rep.  129.  injury  was  a  necessary  result  of  the 

•  Storrs  V.  City  of  Utica,  17  N.  Y.  work.  Carman  v.  Railroad  Co.,  4 
104,  73  Am.  Dec.  437.  Ohio  St.  399;  Teffln  v.  McCormack. 

•  McAfferty  v.  Spuyten  Duyvil,  &c.  84  Ohio  St.  638.  Pack  v.  Mayor  was 
R.  R.  Co.,  61  N.Y.  178,  19  Am.  Rep.  approved  and  followed  in  Kelly  v. 
267.  The  same  result  was  reached  in  Mayor,  UN.  Y.  433.  See  also  that 
Pack  e.  Mayor.  8  N.  Y.  223,  involv-  railroad  company  is  not  liable  for 
ing  the  liability  of  a  municipal  cor-  negligence  of  contractor  in  construct- 
poration  for  injuries  caused  by  neg-  ing  road.  Cunningham  «.  Interna- 
ligent  blasting  done  by  a  sub-con-  tional  R.  R.  Co.,  51  Tex.  503.  33  Am. 
tractor  employed  by  one  who  had  Rep.  633 ;  for  negligent  use  of  a  steam 
taken  the  contract  to  grade  a  street.  shovel,  Bailey  v.  Troy  &  Boston  R. 
And  so  in  Tibbetts  «.  Knox  &c.  R.  R.  Co..  57  Vt.  353,  53  Am.  Rep. 
R.  Co.,  63  Me.  437.     But  a  contrary  129. 

result  was  reached  in  Stone  v.  Che- 

597 


§  7i8.  THE   LAW    OF   AGENCY.  [liook  IV- 

machinery  from  a  railroad  car,  and  place  it  in  their  building.  It 
was  not  contemplated  that  it  would  be  necessary,  nor  did  it 
appear  to  be  necessary,  that  a  certain  coal-hole  should  be  opened, 
yet  the  rigger  in  the  progress  of  the  work,  and  for  some  purpose 
of  his  own,  opened  the  hole  and  left  it  open  a  few  minutes  after 
the  work  was  finished,  when  a  boy  fell  in  and  was  injured.  Th& 
court  held  that  the  rigger  was  pursuing  an  independent  employ- 
ment, and  that,  as  it  was  not  expected  that  the  hole  was  to  be 
opened,  the  owners  of  the  refinery  were  not  charged  with  the 
duty  of  guarding  it,  and  were  consequently  not  responsible  for 
the  injury.'  So  a  person,  who  carried  on  the  business  of  slating, 
was  employed  to  repair  the  roof  of  a  church;  while  doing  this, 
with  his  workmen,  a  ladder,  which  they  had  placed  against  the 
building  to  reach  the  roof,  was  blown  down  and  injured  a  passer- 
by, who  brought  an  action  against  the  society  for  damages. 
The  court,  however,  held  that  the  slater  was  exercising  an  inde- 
pendent employment,  and  that  the  injury  resulted  from  the 
careless  manner  in  which  he  performed  -an  undertaking  lawful 
and  proper  in  itself,  and  that  the  society  was  not  liable.'  So  the 
owner  of  land  contracted  with  a  carpenter  to  repair  a  certain 
house  thereon,  the  latter  to  furnish  the  materials  and  do  the  work 
for  a  specified  sura.  A  teamster  employed  by  the  carpenter, 
piled  lumber  for  the  work  in  the  highway  where  it  frightened 
the  plaintiff's  horse  and  caused  injury.  An  action  was  brought 
against  the  owner,  but  it  was  held  that  the  carpenter,  and  not 
the  owner,  was  at  fault.*  So  a  public  licensed  drayman  was 
employed  to  haul  a  quantity  of  salt  from  a  warehouse  and  deliver 
it  at  his  employer's  store  for  so  much  a  barrel.  While  in  the  act 
of  delivering  the  salt,  the  drayman  carelessly  permitted  a  barrel 
to  roll  against  a  passer-by,  causing  an  injury,  on  account  of  which 
an  action  was  brought  against  the  employer.     It  was  held,  how- 

•  Harrison  e.  Collins,  86  Perm.  St.  been  employed  to  repair  the  water 

153,   27  Am.  Rep.  699.     The    result  pipes.     Bennett  v.  Truebody,  66   CaL 

would  undoubtedly  have  been  differ-  509,  56  Am.  Rep.  117. 

ent  had  the  employment  contempla-  »  McCarthy    v.    Second  Parish    of 

ted  the  opening  of  the  hole.     See  a  Portland,  71  Me.  318,  36  Am.   Rep. 

similar    case  where  the  owner  of  a  320. 

building  was  held  not  liable  for  an  *  Hilliard    v.    Richardson,   3  Gray 

injury  caused  by  falling  through  a  (Mass.)  349,  63  Am.  Dec.  743.     This 

trap  door   negligently  left  open  by  case  contains  a  valuable  and  exhaust- 

the  servants  of  a  plumber  who  bad  ive  review  of  earlier  cases. 

598 


Chap.  Y.]        LIABILITY  OF  PRINCIPAL  TO  THIRD    PERSON.  §  748. 

ever,  that  the  drayman  was  exercising  an  independent  calling  and 
was  alone  the  party  liable.' 

The  fact  that  the  employer  furnishes  the  tools,  materials  or 
appliances  with  which  the  work  was  to  be  done  by  the  contractor 
does  not  render  him  liable  for  negligence  in  their  use  by  the 
contractor  or  his  servant.*  If  he  negh'gently  furnishes  defective 
appliances,  however,  he  would  be  liable  for  an  injury  happening 
on  that  account.* 

But  where  a  municipal  corporation  contracted  for  the  digging 
of  a  sewer  in  a  public  street,  and  took  no  measures  to  provide 
proper  protection  against  the  excavation,  it  was  held  liable  for 
an  injury  to  one  who  fell  into  it  and  was  hurt.  The  cause  of  the 
accident,  the  court  held,  was  not  the  manner  in  which  the  work 
was  done,  but  it  was  the  result  of  the  work  itself.  Said  Com- 
8T0CK,  J.,  "A  ditch  cannot  be  dug  in  a  public  street  and  left 
open  and  unguarded  at  night  without  imminent  danger  of  such 
casualties.  If  they  do  occur,  who  is  the  author  of  the  mischief  ? 
Is  it  not  he  who  causes  the  ditch  to  be  dug,  whether  he  does  it 
with  his  own  hands,  employs  laborers,  or  lets  it  out  by  contract? 
If  by  contract,  then  I  admit  that  the  contractor  must  respond  to 
third  parties,  if  his  servants  or  laborers  are  negligent  in  the 
immediate  execution  of  the  work.  But  the  ultimate  superior  or 
proprietor  first  determines  that  the  excavation  shall  be  made,  and 
then  he  selects  his  own  contractor.  Can  he  escape  responsibility 
for  putting  a  public  street  in  a  condition  dangerous  for  travel  at 
night,  by  interposing  the  contract  which  he  himself  has  made  for 
the  very  thing  which  creates  the  danger  ?  I  should  answer  the 
question    in    the   negative."  *      So   the   owner   of    a    building 

•  DeForrest  ».  Wright,  2  Mich.  368.      tools  to  the  contractor,   with  which 

•  Riley  v.  State  Line  Steamship  Co.  to  do  the  work  agreed,  and  they  are 
29  La.  Ann.  791,  29  Am.  Rep.  349.  suitable  and  safe  when  furnished,  the 

»  The  owner  of  a  mill  employed  a  owner  is  not  liable  for  an  injury  hap- 

contractor  to  put  a  cornice  on  the  mill,  pening  from  the  lack  of  repair  in  the 

the  owner  agreeing  to  erect  the  neces-  absence  of  an  express  agreement  on 

sary  scaffolding.  The  scaffolding  was  his  part  to  keep  the  tools  in  repair. 

80  negligently    erected    that  it    fell  And  if  the  owner  agrees  to  repair  the 

and  killed  one  of    the    contractor's  tools  when  notified  that  they  need  it, 

servants,  who  was  at  work  upon  it.  hisduty  will  not  arise  until  such  notice 

It  was  held  that  the  owner  was  re-  is  given.     King  v.  New  York  &c.  R. 

sponsible.  Coughtry  v.  Globe  Woolen  R.  Co.,  66  N.  Y.  181,  23  Am.    Rep. 

Co.  56  N.  Y.  124,  15  Am.   Rep.  387.  37. 

Where  the  owner  agrees  to  furnish  *  Storrs  v.  City  of  Utica,  17  N.  Y. 

599 


§  T49.  THE   LAW   OF    AGENCY.  [Book  IV. 

employed  a  contractor  to  dig  a  drain  from  his  cellar  into  the 
common  sewer,  and  to  do  so  it  was  necessary  to  cut  through  a 
barrier  which  had  been  constructed  to  prevent  the  tide  waters 
from  flowing  into  the  cellars  in  that  vicinity.  The  contractor 
so  negligently  performed  this  part  of  the  work  that  the  tide 
flowed  through  and  caused  injury,  for  which  the  owner  was  held 
responsible,  upon  the  manifest  ground  that  the  owner  had  con- 
tracted for  the  doing  of  a  thing  which,  if  improperly  done,  was 
liable  to  cause  mischief,  and  he  was  bound  to  see  that  the  neces- 
sary precautious  were  taken,' 

§  749.  Principal's  LiabiUty  for  Acts  of  Subagent.  The  ques- 
tion of  the  liability  of  the  principal,  for  the  acts  of  a  subagent, 
has  already  been  considered.  It  has  been  seen  that,  where  there 
was  an  express  or  implied  consent  to  the  appointment  of  the  sub- 
agent,  or  if  his  appointment  was  justified  by  usage  or  necessity, 
there  arises  such  a  privity  between  the  subagent  and  the  princi- 
pal, as  renders  the  latter  liable  for  the  acts  of  the  subagent  in  the 
same  manner  and  to  the  same  extent  as  in  the  case  of  any  other 
agent.'  Where  no  such  privity  exists, — where  the  agent  stands 
in  the  attitude  of  an  independent  contractor, — the  principal    is 

104,  72  Am.  Dec.  437.     Same  point.  the  thing  contracted  to  be  done  from 

City  of  St.  Paul  v.  Seitz,  3  Minn.  297,  its    nature    creates    a   nuisance,     or 

74  Am.  Dec.  753.  where,  being  improperly  done,  it  cre- 

'  Sturgis  V.  Theological,  «&c.  Socl-  ates  a  nuisance  and  causes  mischief 

ety,  130  Mass.  414,  89  Am.  Rep.  463.  to  a  third  person,   the    employer  is 

Morton,  J.  said   "The  owner  of  a  liable  for  it.     Gorham  v.   Gross,  wW 

building,  who  has  used  due  care  in  supra,  and  cases  cited."    In  Gorham 

the  employment  of  an  independent  e.   Gross,  a   party    wall    fell    doing 

contractor,  is  not  responsible  to  third  injury.     Its  fall  was  owing  either  to 

persons  for    the    negligence  of    the  the  fact  that  it  had  not  been  properly 

latter,  occurring  in  his  own  work  in  supported,  or  that  it  had  been  negli- 

the  performance  of  the  contract,  such  gently  built  in  such  cold  weather  that 

as  the  handling  of  tools  or  materials,  the  mortar  froze.    The  owner  and  not 

or  providing   temporary  safeguards  the  contractor  was  held  liable.     See 

while    doing   the  work.     Hilliard  v.  also  Percival  v.  Hughes,  9  Q.  B.  Div. 

Richardson,  8    Gray  (Mass.)  349,  63  441,  36  Eng.   Rep.  402;  s.  c.   on  ap- 

Am.  Dec.  743;  Conners  «.  Hennessey,  peal,  8  Ap.  Gas.  448,  35  Eng.    Rep. 

112  Mass.  96;  Gorham  v.  Gross,   125  776. 

Mass.  232,  28  Am.  Rep.  224;  Butler         «  See  ante,   %  197,  California  Bank 

V.  Hunter,   7  H.  «fc.   N.   826.     As  to  v.  Western  Un.  Tel.  Co.,  52  Cal.  289; 

euch  matters,  pertaining  to  the  mode  Louisville, &c.  R.  R.  Co.  «.  Blair,  4 

in  which  he  does  the  work,  he  is  not  Baxt.  (Tenn.)  407. 
the  servant  of  the  owner.     But  where 

600 


Chap,  v.]        LIABILITY  OF  PKINCIPAL  TO  THLKD    PEKSON. 


§750. 


liable  only  in  those  cases  in  which  he  would  be  liable  for  the 
acts  of  the  servants  or  agents  of  any  other  independent  con- 
tractor.* 

§  750.  Effect  of  Ratification.  It  has  been  seen  in  an  earlier 
portion  of  the  work  that  a  principal  may  with  a  full  knowledge 
of  the  facts,  render  himself  liable  by  his  ratification  not  only  of  his 
agent's  unauthorized  contract,  but  also  of  his  unauthorized  tort.' 
But,  ae  has  been  seen,'  such  full  knowledge  is  indispensable  to 
charge  the  principal,  and  the  mere  appropriation  of  the  fruits  of 
the  trespass  without  such  knowledge  is  not  sufficient.*  So  the 
doctrine  of  ratification  can  not  be  so  applied  as  to  authorize  one 
to  be  made  a  party  to  a  suit  by  amendment,  when  the  ratification 
took  place  after  the  suit  was  instituted.* 


»  See  ante,  §§  747.  748.  Principal 
is  not  liable  for  acts  of  a  subagent 
who  is  subject  to  the  control  of  the 
agent  only.  Lindsay  v.  Singer  IMf'g 
Co.,  4  Mo.  App.  570. 

•  See  ante,  Chapter  on  Ratification. 

3  See  ante,  §§  128,  129. 

<  Herring  v.  Skaggs,  63  Ala.  180, 
34  Am.  Rep.  4. 

»  Burns  v.  Campbell,  71  Ala.  371, 
289.  In  this  care  Somerville,  J. 
says:  "  There  is  no  difficulty  about 
the  general  rules  of  law  governing  the 
ratification  of  an  agent's  unauthorized 
act  by  a  principal.  It  is  settled  that 
where  such  an  agent,  acting  in  tJie 
name  and  for  the  benefit  of  his  princi- 
pal, commits  an  unindictable  trespass 
de  bonis  asportatis,  or,  in  other  words, 
a  trespass  which  is  voidable  merely 
and  not  wholly  void,  as  imposing  a 
civil  and  not  a  criminal  liability  upon 
the  perpetrator,  the  principal,  after 
being  fully  informed  of  its  tortious 
nature,  may  adopt  it  as  his  own  act, 
and  such  ratification  ordinarily  binds 
the  principal  to  the  same  extent,  and 
holds  him  to  the  same  civil  responsi- 
bilities as  if  he  had  originally  author- 
ized it.  And  for  many  purposes  the 
ratification  will  relate  back  to  the 
date  of  the  unauthorized  act  so  as  to 


constitute  the  principal  a  trespasser  ab 
initio.  Ewell's  Evans'  Agency,  *64. 
*70-71;  Coke's  Inst.  IV.  317;  1  Brick. 
Dig.  p.  59  §  91;  Blevins  v.  Pope,  7 
Ala.  371;  Story  on  Agency,  §§  239, 
244;  Chapman  v.  Lee,  47  Ala.  143; 
Mound  City  Ins.  Co.  v.  Huth,  49  Ala. 
529;  1  Waterman  on  Trespass  §  28. 
This,  however,  is  upon  the  doctrine  of 
relation,  which  is  a  mere  legal  fiction, 
having  its  origin  in  necessity,  and 
which  is  never  allowed  to  prevail  ex- 
cept for  the  advancement  of  right 
and  justice. — Jackson  v.  Ramsay.  (3 
Cow.  75)  15  Am.  Dec.  243,  246; 
Pierce  v.  Hall.41  Barb.  142;  Menville's 
case,  13  Co.  19.  It  cannot  be  applied 
so  as  to  authorize  one  to  be  made  a 
party  defendant  to  a  suit,  by  amend- 
ment, when  the  act  creating  his  lia- 
bility was  done  after  the  suit  was 
instituted.  All  pleas  setting  up  de- 
fenses to  an  action,  have  reference  to 
the  time  when  an  action  was  com- 
menced,excepting  pleas  to  the  further 
maintenance  of  the  action,  and  pleas 
puis  darrein  continuance.  If  a  de- 
fendant be  not  liable  on  the  date 
when  the  suit  is  commenced,  he  can 
not  be  made  liable  at  all  in  that  action 
by  any  subsequent  act  of  adoption  or 
ratification.      To  create  such  retro- 


601 


§  751.  THE    LAW    OF   AGENCY.  [Book  IV. 

S  751.  The  Measxxre  of  Damages  against  the  Principal.  Where 
the  principal  is  found  to  be  liable  for  the  wrongful  act  of  his 
ao-ent,  the  measure  of  damages  is  ordinarily  full  compensation 
for  the  injury  inflicted.'  But  it  is  held,  in  many  cases,  that  he 
is  not  liable  for  exemplary  or  punitive  damages,  in  those  juris- 
dictions in  which  such  damages  are  allowed,  unless  he  is  himself 
in  fault.  The  rule  of  these  cases  was  well  stated  by  Church,  C. 
J.,  of  the  New  Tork  Court  of  Appeals,  as  follows  :  "  For  inju- 
ries, by  the  negligence  of  a  servant  while  engaged  in  the  busi- 
ness of  the  master,  within  the  scope  of  his  employment,  the  lat- 
ter is  liable  for  compensatory  damages;  but  for  such  negligence, 
however  gross  or  culpable,  he  is  not  liable  to  be  punished  in 
punitive  damages  unless  he  is  also  chargeable  with  gross  miscon- 
duct. Such  misconduct  may  be  established  by  showing  that  the 
act  of  the  servant  was  authorized  or  ratified,  or  that  the  master 
employed  or  retained  the  servant,  knowing  that  he  was  incompe- 
tent, or,  from  bad  habits,  unfit  for  the  position  he  occupied. 
Something  more  than  ordinary  negligence  is  requisite ;  it  must 
be  reckless  and  of  a  criminal  nature,  and  clearly  established. 
Corporations  may  incur  this  liability  as  well  as  private  persons. 
If  a  railroad  company,  for  instance,  knowingly  and  wantonly 
employs  a  drunken  engineer,  or  switchman,  or  retains  one  after 
knowledge  of  his  habits  is  clearly  brought  home  to  the  company, 
or  to  a  superintending  agent  authorized  to  employ  and  discharge 
him,  and  injury  occurs  by  reason  of  such  habits,  the  company 
may  and  ought  to  be  amenable  to  the  severest  rule  of  damages ; 
but  I  am  not  aware  of  any  principle  which  permits  a  jury  to 
award  exemplary  damages  in  a  case  which  does  not  come  up  to 
this  standard,  or  to  graduate  the  amount  of  such  damages  by  their 
views  of  the  propriety  of  the  conduct  of  the  defendant,  unless 
such  conduct  is  of  the  character  before  specified."  * 

spective  liability,  with  its  attendant  « In  Cleghorn  v.  New  York  Cent 

costs  and  consequences,  would  be  to  R  R.  Co.,  56  N.  Y.  44,  15  Am.   Rep. 

pervert  the  doctrine  of  relation  to  an  375,  approved  in  Sullivan  v.   Oregon 

unjust  and  improper  end."  Ry  Co.,  12  Oreg.   392,  53  Am.  Rep. 

'  Chicago  R.  R.   Co.  v.    Scurr,   59  364.     To  same  effect:  Nashville,  &c. 

Miss.  456,  42  Am.  Rep.  373;  Croaker  R.  R.  Co.  v.  Starnes,  9  Heisk.  (Tenn.) 

c.  Chicago,  &c.  Ry  Co.,  36  Wis.  657,  52,   24   Am.    Rep.    296;    Croaker    e. 

17  Am.   Rep.   504;    Pullman  Palace  Chicago,  &c.  Ry  Co.,  supra;   Hagaa 

Car  Co.  V.  Reed,  75  111.  125,  20  Am.  «.  Providence,&c.  R.R.Co.,  3  R.  I.  8S; 

Rep.  232.  62  Am.   Dec.   377;  Turner  v.    North 

602 


Chap.  Y.]        LIABILIIT  OF  PKINCIPAL  TO  THIKD    PKKSON.  §  751. 

But  in  other  cases  a  more  rigid  rule  is  imposed,  and  it  is  held 
that  a  corporation  is  liable  in  exemplary  damasfes  for  tlie  wrong- 
ful act  of  its  agent  or  servant  in  all  cases  in  which  an  individual 
would  be  liable  to  them  under  like  circumstances,  althougrh  such 
corporation  had  not  previously  authorized  or  subsequently  rati- 
fied the  act.'  The  case  of  a  corporation,  however,  and  particu- 
larly of  a  carrier  of  persons,  involves  elements  not  appearing  ordi- 
narily in  the  case  of  a  principal  who  is  a  private  individual,  in- 
asmuch as  it  is  only  through  the  medium  of  its  agents  and  ser- 
vants that  the  corporation  can  act  at  all,  and  as  the  carrier  owes 
to  the  passenger  a  peculiar  duty ;  but  whatever  may  be  the  true 
rule,  in  the  case  of  corporations  and  carriers,  in  the  case  of  pri- 
vate individuals,  the  l^ew  York  rule  seems  most  consonant  with 
reason  and  justice." 


Beach,  «&c,  R.  R.  Co.,  84  Cal.  694; 
Higgins  t>.  Watervliet  Co.,  46  N.  Y. 
23,  7  Am.  Rep.  293;  Allegheny  Val- 
ley R  R.  V.  McLain,  91  Penn. 
St.  443;  Hays  v.  Houston.  &c.  R.  R 
Co.,  46  Tex.  273;  Houston,  &c.  Ry 
Co.  V.  Cowser,  57  Tex.  293.  The 
Amiable  Nancy,  3  Wheat.  (U.  8.) 
646. 

Knowingly  retaining  the  agent  in 
service  after  the  wrongful  act  will  be 
a  ratification:  New  Orleans,  &c.  R. 
R.  Co.  V.  Burke,  53  Miss.  200,  24  Am. 
Rep.  689;  Bass  v.  Chicago,  &c.  Ry 
Co.,  42  Wis.  654,  34  Am.  Rep.  437; 
Gasway  v.  Atlanta,  &c.  Ry  Co.,  58 
Ga.  216;  Perkins  u.  Missouri,  &c.  R. 
R  Co.,  55  Mo.  201. 

'  Atlantic,  «fcc.  Ry  Co.  v.  Dunn,  19 
Ohio  St.  162,  2  Am.  Rep.  383;  God- 
dard  v.  Grand  Trunk  Ry  Co.,  67  Me. 
202,  3  Am.  Rep.  39;  Palmer  v.  Rail- 
road, 3  S.  C.  580,  16  Am.  Rep.  750; 
Doss  ».  Missouri,  &c.  R.  R.  Co.,  59 
Mo.  37,  21  Am.  Rep.  371;  Hanson  v. 
European,  &c.  Ry  Co.,  64  Me.  84,  16 
Am.  Rep.  404;  New  Orleans,  &c.  R. 
R.  Co.  V.  Burke,  53  Miss.  200,  24  Am. 
Rep.  689;  Philadelphia,  &c,  R.  R. 
Co.  V.  Larkin,  47  Md.  155,  38  Am. 
Rep.  442;  Singer  Mfg.  Co.   •.  Hold- 


fodt,  86  111.  455,  29  Am.  Rep.  43;  St. 
Louis,  &c.  R.  R.  Co.  v.  Dalby,  19  lU. 
353;  Gasway  v.  Atlanta,  «fcc.  R.  R. 
Co.,  58  Ga.  316;  Wabash,  «S;c.  Ry  Co. 
«.  Rector,  104  111.  396;  Jeffersonville 
R.  R  Co.  V.  Rogers,  88  Ind.  116,  10 
Am.  Rep.  103;  American  Express 
Co.  «.  Patterson,  73  lud.  430;  Hawes 
V.  Knowles,  114  Mass.  518;  Levi  u. 
Brooks,  131  Mass.  501 ;  Forsee  v.  Ala- 
bama, &c.  R.  R.  Co.,  63  Miss.  66,  56 
Am.  Rep.  801. 

*  "  The  rule  is,"  says  SoMERViiiLB, 
J.,  in  Burns  v.  Campbell,  71  Ala.  371, 
293,  "  that,  where  several  defendants 
are  sued  in  t'}rt  for  damages,  the  mal- 
ice or  other  evil  motive  of  one  can 
not  be  matter  of  aggravation,  or 
ground  for  vindictive  damages  against 
the  oilier.  Wood's  Mayne  on  Dam- 
ages, p.  594,  §  634.  Hence,  principals 
are  not  generally  held  liable  for  such 
damages  by  reason  of  the  evil  motive 
of  an  agent,  unless  the  act  of  the 
agent  was  fully  ratified  with  a  knowl- 
edge of  its  malicious,  aggravating,  or 
grossly  negligent  character;  or  these 
matters  of  aggravation  were  probably 
consequent  on  the  doing  of  the  wrong 
ful  act  ordered  by  the  principal;  or 
unless  the  agent  was  employed  with 


603 


§752. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


§  752.  Unsatisfied  Judgment  against  Agent  no  Bar  to  Action 
against  Principal.  A  judgment  obtained  against  an  agent  for  a 
fraud  committed  by  hira  while  acting  witliin  the  scope  of  his 
agency,  and  which  remains  wholly  unpaid,  is  no  bar  to  an  action 
by  the  same  plaintiff  against  the  agent's  principal  to  recover 
damages  for  the  same  fraud.* 


a  knowledge  of  his  incompetency. 
Lienkauf  v.  Morris,  66  Ala.  406.  415; 
Pollock  t).  Gantt,  69  Ala.  373;  Kirk- 
Bey  V.  Jones,  7  Ala.  623;  Field's  Law 
Damages,  §§  86,  87;  "Wood's  Mayne 


on  Dam.,  p.  57,  §  48;  Carmicliael  «. 
W.  and  L.  Railway  Co.,  13  Ir.  L.  R 
313." 

'  Maple  V.  Railroad  Co.,  40  Ohio 
St.  813,  48  Am.  Rep.  685. 


604 


Chap.  YI.]        LIABILITT    OF  THIRD   PEE80N   TO    AGENT. 


§753. 


CHAPTER    VI. 

THE  DUTIES  AND  LIABILITIES  OP  THIRD  PERSONS  TO  THE 

AGENT. 


L    In  Contract. 
753.  In  general  —  Right  of  Action 

in  Principal  alone. 
764.  Agent  may   sue  on   Contract 

made  by  him. 
756.  Agent  may  sue  on  Contract 

made  "with  him  personally. 

766.  Agent  may  sue  when  he  has  a 

beneficial  Interest. 

767.  Same  Subject  —  Principal  may 

sue  or  control  Action. 

768.  Agent  only  may  sue  on  sealed 

Contract  made  with  him  per- 
sonally. 

769.  Agent's  Rights  depend  upon 

the  Contract. 


760.  Right  of  assumed  Agent  to 

show  himself  Principal. 

761.  Agent    may    recover    Money 

paid  by  him  under  Mistake 
or  illegal  Contract. 

762.  What  Defenses  open  to  third 

Person. 

763.  What  Damages  Agent  may  re- 

cover on  Contract. 

II.  In  Tort. 

764.  Agent  may  sue  for  personal 

Trespass. 

765.  When  Agent  may  sue  for  In- 

juries to    Principal's    Prop- 
erty. 


m   CONTKAOT. 

8  753.  In  General— Right  of  Action  in  Principal  alone.  Con 
tracts  entered  into  by  the  agent  with  third  persons  in  pursuance 
of  his  authority,  are  presumed  to  be  made  on  account  and  in 
behalf  of  the  principal,  and  for  his  benefit  and  advantage.  It  is 
the  principal's  contract,  and  the  benefits  which  grow  out  of  it  are 
to  be  reaped  by  him.  The  legal  interest  in  the  contract  vests  in 
the  principal.  As  a  general  rule,  therefore,  where  the  contract 
is  made  by  the  agent,  as  such,  on  behalf  of  his  principal,  and  the 
agent  has  no  beneficial  interest  in  the  transaction,  the  right  of 
action  is  in  the  principal  alone,  and  the  agent  cannot  sue  upon 
it.' 

•  Fisher  t».  Marsh,  6  B.  «&  S.  411;  Commercial  Bank  «.  French,  21  Pick. 
Buckbeew.  Brown,  21  Wend.  (N.  Y.)  (Mass.)  486,  32  Am.  Dec.  280;  Med- 
110;  Garland  v.  Reynolds,  20  Me.  45;      way  Cotton  Manufactory  e.  Adams. 

605 


ft  754  THE    LAW    OF    A.GENCY.  [Book  IV. 

§  754.  Agent  may  sue  on  Contract  made  by  him.  But  it  has 
been  seen  that,  notwithstanding  the  fact  that  the  agent  has  author- 
ity, and  is  expected  to  bind  the  third  person  with  whom  he 
deals,  to  the  principal,  yet,  through  failure  to  use  apt  and  appro- 
priate language,  or  from  a  deliberate  intention  to  deal  with  the 
agent  exclusively,  the  result  of  the  negotiation  may  be  that  the 
third  person  has  assumed  obligations,  either  prima  fade  or 
exclusively,  to  the  agent  alone.  It  may  thus  happen  that  the  legal 
interest  in  the  contract  will  be,  or  will  appear  to  be,  in  the  agent 
alone,  and,  in  accordance  with  the  well  settled  rule  that  an  action 
upon  a  contract  is  to  be  brought  in  the  name  of  the  party  in 
whom  the  legal  interest  in  the  contract  is  vested,*  the  right  of 
action  may  be  either  in  the  agent  alone,'  or  it  may  be  subject  to 
an  action  by  the  agent  or  the  principal.'  This  question  as  to  the 
agent's  right  of  action  may  arise  under  a  variety  of  circum- 
stances. Thus  the  contract  may  be,  (a)  an  unwritten  one,  or  it 
may  be,  (b)  a  written  contract,  and  if  in  writing,  it  may  be,  (c) 
under  seal.  So  in  his  negotiation  the  agent  may  have  acted, 
(a)  as  the  agent  of  a  known  principal,  or,  (b)  he  may  have  dis- 
closed the  fact  of  his  agency,  but  concealed  the  name  of  his 
principal,  or,  (c)  he  may  have  bargained  as  the  real  principal. 
So  the  contract  upon  which  the  question  arises  may  be,  (a)  fully 
executed,  or,  (b)  partially  executed,  or,  (c)  wholly  executory. 

S  755.  Agent  may  sue  on  Contract  made  with  him  personally. 
Wliere  the  contract  is  made  with  the  agent  personally,  whether 
HS  a  result  of  the  failure  to  nse  apt  and  sufficient  language  to 
bind  the  principal,  or  of  a  deliberate  intention  to  deal  with  the 
airent  alone,  the  latter  is,  as  has  been  seen,  personally  liable  upon 
the  contract.  And  this  obligation  is  reciprocal, — the  other  party 
is  bound  to  the  agent,  and  in  him  vests  the  legal  interest  in  the 
contract,  and,  consequently,  the  right  of  action  upon  it.  It  is, 
therefore,  a  general  rule  that  where  a  contract,  whether  written 
or  unwritten,  is,  in  terms,  made  with  the  agent  personally,  he 
may  sue  npon  it.*     This  rule  is  unquestioned  where  the  fact  of 

10  Mass.  360;    Lowell    e.    Morse,  1  «  Cocke  «.  Dickens,  4  Yerg.  (Tenn.) 

Melc.  (Mass.)  475;  Barlow  c.  Congre-  29.   26  Am.    Dec.    214;  Shepherd  v. 

trational  Society,  8  Allen  (Mass.)  462;  Evans,   9    Ind.   260;     Rutherford  e. 

GuQU  V.  Cantine,   10  Johns.  (N.  Y.)  MitcheU,  Mart.  &  Yerg.  (Tcnn.)  2G1. 

387;  Thatcher®.  Winslow,  5  Mason  »  See  i)os^,  §  757. 

(U.  S.  C.  C.)  58.  *  Colburn     v.     Phillips,     13    Gray 

'  Chitty  on  Pleadings,  8.  (Mass.)  64.     This  case  contains  an 

606 


Chap.  VI.]         LIABILITY  OF  THIRD    PERSON  TO  AGENT. 


§T55. 


the  agency  and  the  name  of  his  principal  are  both  concealed  by 
the  agent.  In  such  a  case  the  agent  is,  in  contemplation  of  law, 
the  real  contracting  party,  to  whom  the  promises  of  the  other 
party  were  made  and  who  is  entitled  to  enforce  them.'  But  the 
rule  also  applies  although  both  the  fact  of  the  agency  and  the 
name  of  the  principal  were  disclosed.  If  the  fact  that  the  agent 
acts  as  such  appears,  but  the  name  of  the  principal  does  not 
appear,  the  action  may  be  sustained  in  the  name  of  the  agent  as 
the  only  party  disclosed  to  whom  the  promise  is  made.*  And 
so,  although  the  name  of  the  principal  appears,  this  fact  is  not 
conclusive  of  the  absence  of  the  agent's  right  of  action.  The 
question  here,  as  in  the  cases  that  have  been  considered,  is,  are 
the  words  used  in  respect  to  the  principal  descriptive  of  the  per- 
son merely,  or  do  they  declare  that  the  promise  runs  to  the  prin- 
cipal directly.* 


exhaustive  review  of  the  earlier  cases. 
Van  Staphorstc.  Pearce,  4  Mass,  258; 
Harp  V.  Osgood,  2  HiU  (N.  Y.)  216; 
Grigsby  v.  Nance,  3  Ala,  347;  Buffum 
V.  Chadwick,  8  Mass.  103;  Bird  v. 
Daniel,  9  Ala.  302;  Doee.  Thompson, 
22  N.  H,  217;  Potter  v.  Yale  College, 
8  Conn,  60;  Alsop  v.  Caines,  10 
Johns.  (N.  Y.)  396;  Borrowscale  d. 
Bosworth,  99  Mass.  378,  383;  United 
States  Tel.  Co,  t».  Gildersleve,  29  Md. 
232,  96  Am,  Dec. 519;  Sharpy.  Jones, 
18  Ind,  314,  81  Am,  Dec.  359;  Good- 
man V.  Walker,  30  Ala.  482,  68  Am. 
Dec,  134;  Albany  &  Rensselaer  Co.  v. 
Lundberg,  121  U.  S.  451;  Packard  v. 
Nye,  2  Mete.  (Mass.)  47;  Kennedy  «, 
Gouveia,  3  Dowl.  &  R.  503;  Parker 
t.  Winlow,  7  El.  &  Bl.  942;  Dutton 
*.  Marsh,  L.  R.  6  Q.  B.  361;  Ludwig 
V.  GiUespie,  105  N,  Y.  653. 

In  Rowe  v.  Rand,  111  Ind.  206, 
NiBLACK  J.,  lays  down  the  rule  as 
follows:  "An  agent  may  sue  in  his 
own  name:  First,  When  the  contract 
is  in  writing,  and  Is  expressly  made 
with  him,  although  he  may  have  been 
known  to  act  as  agent.      Secondly, 

607 


When  the  agent  is  the  only  known  or 
ostensible  principal,  and  is,  therefore, 
in  contemplation  of  law  the  real  con- 
tracting party.  Thirdly,  When,  by 
the  usage  of  trade,  he  is  authorized 
to  act  as  owner  or  as  a  principal  con. 
tracting  party,  notwithstanding  his 
well  known  position  as  agent  only. 
But  this  right  of  an  agent  to  bring  an 
action,  in  certain  cases,  in  his  own 
name  is  subordinate  to  the  rights  of 
the  principal,  who  may,  unless  in 
particular  cases,  where  the  agent  has 
a  lien  or  some  other  vested  right, 
bring  suit  himself,  and  thus  suspend 
or  extinguish  the  right  of  the  agent." 
Upon  this  latter  point  see  pout,  §  757. 

•Simsc.  Bond,  5  B,  &  Ad.  389; 
Fisher  v.  Marsh,  6  B,  &  S.  411; 
Evans  v.  Evans,  3  Ad.  &  El,  132; 
Lapham  v.  Green,  9  Vt,  407. 

»  Clap  V.  Day,  2  Greenl.  (Me.)  305, 
11  Am.  Dec.  99;  Cocke  v.  Dickens,  4 
Yerg.  (Tenn.)  29,  26  Am.  Dec.  214; 
Buffum  «.  Chadwick,  8  Mass.  103. 

»  See  Albany  &  Rensselaer  Co,  •. 
Lundberg,  121  U.  S.  451,  and  cases 
cited. 


§  755.  THE   LAW    OF    AGENCY.  [Book  lY. 

These  principles  are  of  frequent  application  to  the  case  of 
commercial  paper.  Thus  upon  a  note  or  bill  payable  to  "A.  B., 
agent,"  or  to  "  A.  B.,  agent  for  C.  D.,"  or  to  "  A.  B.,  trustee,"  or 
to  "A.  B.,  executor,"  etc.,  or  to  "A.  B.  for  the  use  of  C.  D.,"  the 
action  may  be  maintained  in  the  name  of  A.  B.' 

The  same  rule  applies  to  a  promise  made  to  "  A.  B.,  cashier," 
or  "  A.  B.,  president  of  C.  D.  Company."  In  such  cases  the 
action  may  be  brought  in  the  name  of  the  officer,  although  it  is 
now  generally  held  that  the  corporation  may  sue  also.* 

But  where  the  promise  is  made  to  the  "  agent  of  0.  D."  or  the 
"  Cashier  of  the  E.  bank,"  or  to  the  "  treasurer  of  the  F.  Co.," 
and  the  like,  the  name  of  the  agent  or  officer  not  being  dis- 
closed, it  is  usually  regarded  as  made  to  the  principal  directly.* 

So  where  an  agent  carries  on  business  for  his  principal  and 
appears  to  be  the  proprietor  and  sells  goods  as  the  apparent 
owner,  he  can  sustain  an  action  in  his  own  name  for  the  price.* 
And  where  the  principal  carries  on  business  in  the  name  of  the 
agent,  actions  may  be  sustained  in  the  name  of  the  agent  upon 
contracts  made  to  him  in  that  name.*  So  where  an  agent  ships 
goods,  taking  the  bill  of  lading  in  his  own  name,  he  may  sue 
upon  the  contract  of  carriage  for  damages  arising  from  a  breach 
of  it.*     So  one  who  describes   himself  as  agent,  but   covenants 

»  Clap  V.  Day,  2  Greenl.  (Me.)  305,  88;  Pratt  e.  Topeka  Bank,  12  Kana. 

11  Am.   Dec.   99;  Bufifum  v.  Chad-  570. 

wick,  8  Mass.  103 ;  Goodman  v.  Wal-  »  Commercial  Bank  «,   French,  21 

ker,  30  Ala.  482;  Pierce  v.  Robie,  89  Pick.  (Mass.)  486,  32  Am.  Dec.  280; 

Me.  205;  Rutland,  &c.  R.  R.  Co.  v.  Ewing  c.  Medlock,  5  Port.  (Ala.)  82; 

Cole,  24  Vt.  39;  Cocke  v.  Dickens,  4  Alston  v.  Heartman,  2  Ala.  699;  Har- 

Yerg.  (Tenn.)  29,  26  Am.  Dec.  214;  per  v.    Ragan,    2  Blackf.   (Ind.)   39; 

Van  StaphorstB.  Pearce,  4  Mass.  258;  Crawford©    Dean,  6   Id.   181;   Ver- 

Shepherd  v.  Evans,  9  Ind.  260;  Rose  mont  Central  R.  R.  Co,  v.  Clayes,  21 

V.  Laffan,  2  Speers.  (S.  C.)  424;  Als-  Vt.   31;    Pigott  v.  Thompson,  3  Bos. 

tone.  Heartman,  2  Ala.  699;  Horah  «&  P.  147. 

V.  Long,  4  Dev.  &  Bat.  (N.  C.)  274.  *  Gardiner  v.  Davis,  2  Car.  &P.  49; 

•Fairfield     v.     Adams,     16    Pick.  Dancer©.  Hastings,  4  Bing.  2;  United 

(Mass.)  381;  Johnson  v.  Catlin,  27  Vt.  States  Tel.  Co.  v.  Gildersleve,  29  Md. 

87.     That  principal  also  may  sue,  see  232,  96  Am.  Dec.  519. 

Baldwin    v.    Bank    of    Newbury,    1  »  Alsop  «.  Caines,  10  Johns.  (N.  Y.) 

Wall.  (TJ.  S.)  239;  First  Nat.  Bank  v,  396. 

Hall,  44  N.  Y.  395;  Garton  v.  Union  'Joseph  «.    Knox,    3   Camp.    320; 

City  Bank,  34  Mich.   279;  Barney  v.  Blanchard  v.   Page,    8  Gray  (Mass.) 

Newcomb,   9  Cash.  (Mass.)  46;  Rut-  281;  Hooper©.  Chicago,  &c.  Ry  Co., 

land,  &c.  R.  R.  Co.  e.   Cole,   24  Vt.  27  Wis.  81,  9  Am.  Rep.  439;  Dunlop 

608 


Chap.  YI.]         LIABILITY  OF  THIRD    PERSON  TO  AGENT. 


§T56. 


as  in  his  own  right,  may  maintain  an  action  in  his  own  name 
against  the  other  party  upon  the  covenants.'  And  a  broker  may 
sue  a  telegraph  company  in  his  own  name  for  a  breach  of  con- 
tract to  transmit  an  order,  in  his  name  though  on  behalf  of  his 
principal,  for  the  purchase  or  sale  of  goods;"  so  an  agent  who, 
having  sold  his  principal's  land,  remits  the  money  by  express, 
may  sue  the  express  company  for  a  loss  of  the  money  through  its 
negligence.* 

An  agent  who  sells  his  principal's  goods,  not  as  agent  but  as 
principal,  may  sue  the  purchaser  for  the  price.*  And  on  a  con- 
tract made  in  the  agent's  own  name  for  an  undisclosed  principal, 
whether  the  agent  describes  himself  as  such  or  not,  either  the 
agent  or  the  principal  may  sue.* 

§  756.  Agent  may  sue  when  he  has  a  beneficial  Interest. 
Mr.  Chitty  lays  down  the  rule «  which  has  been  often  cited,  that 
"  when  an  agent  has  any  beneficial  interest  in  the  performance  of 
the  contract,  as  for  commission,  etc.,  or  a  special  property  or 
interest  in  the  subject-matter  of  the  agreement,  he  may  support 
an  action  in  his  own  name  upon  the  contract,''  as  in  the  case  of 


V.  Lambert,  6  CI.  &  Fin.  600;  South- 
era  Express  Co.  v.  Craft,  49  Miss. 
480,  19  Am.  Rep.  4;  Finn  v.  Western 
R.  R.  Co.,  112  Mass.  524,  17  Am. 
Rep.  128. 

In  action  sounding  in  tort,  the 
action  must  be  brought  by  the  party 
having  an  interest  in  tlie  goods. 
Thompson  v.  Fargo,  49  N.  Y.  188,  10 
Am.  Rep.  342;  Krudler  v.  Ellison,  47 
N.  Y.  36,  7  Am.  Rep.  403. 

»  Potts  V.  Rider,  3  Ohio  70,  17  Am. 
Dec.  581.     Upon  a  contiact  made  be- 
tween "Gustaf  Lundberg,  agent  for 
N.  M.  Hoglund's  Sons  &  Co.,"  and 
"Albany  and    Rensselaer  Iron   and 
Steel   Co.,"  signed    "Gustaf    Lund- 
berg," "  Albany  &  Rensselaer  Iron  & 
Steel  Co.,"  Lundberg  may  sue  in  his 
own  name.    Albany  &  Rensselaer  Co. 
V.  Lundberg,  121    U.    S.    451,    citing 
Kennedy  v.  Gouveia,  3  D 
Parker  v.  Winlow,  7   E. 
Dutton  V.  Marsh,  L.  R.  6 
Buffum  V.   Chadwick,  8 

39  609 


&  R. 

503; 

&  B. 

943; 

q.'b 

361; 

Mass. 

103; 

Packard  v.  Nye,  2  Mete.  (Mass.)  47; 
distinguishing  Gadd  v.  Houghton.  1 
Ex.  Div.  357,  18  Eng.  Rep.  361;  and 
Oelricks  v.  Ford,  23  How.  (U.  S.)  49. 

»  United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md.  232.  96  Am.  Dec.  519. 

3  Snider  v.  Adams  Express  Co.,  77 
Mo.  523. 

<  Keown  v,  Vogel,  25  Mo.  App.  35. 

•  Ludwig  «.  Gillespie,  105  N.  Y. 
653;  Considerant  v.  Brisbane,  22  N. 
Y.  389;  Schaefer  v.  Henkel,  75  N.  Y. 
378. 

•  Chitty  on  Pleadings,  8,  16  Am. 
Ed. 

">  Citing  Porter  v.  Raymond,  53  N. 
H.  519;  Treat  v.  Stanton,  14  Conn. 
445;  Barnes  v.  Insurance  Co.,  45  N. 
H.  21 ;  Underbill  v.  Gibson,  2  N.  H. 
352;  Tankersville  v.  Graham,  8  Ala. 
245;  Butts  v.  Collins,  13  Wend.  (N.  Y.) 
139;  Colburn  v.  Phillips,  13  Gray 
(Mass.)  64;  Borrowscale  v.  Bosworth^ 
99  Mass.  378,  383. 


§  756.  THE    LAW    OF    AGENCY.  [Book    IV. 

a  factor  or  a  broker,*  or  a  warehouseman  or  carrier,'  an  auction- 
eer,' a  policy  broker  whose  name  is  on  the  policy,*  or  the  captain 
of  a  ship  for  freight."  • 

A  mere  interest  in  commissions  to  be  earned,  however,  would 
not,  of  itself,  be  sufficient,*  but  the  rule  must  be  limited  to  those 
cases  in  which  the  contract  was  in  the  agent's  name,  or  in  which 
he  has  a  lien  upon,  or  a  special  property  in,  the  subject-matter.' 

Thus  cotton  factors  who  have  sold  cotton  consigned  to  them 
may,  in  their  own  names,  recover  the  damages  resulting  from  a 
breach  of  the  contract  by  the  buyer,  although  they  may  be 
bound  to  pay  the  damages,  when  recovered,  to  their  consignors. 
The  factors  have  a  special  property  in  the  cotton,  and  have  a  lien 
upon  it  for  their  commissions,  which  commissions  attach  on  the 
very  damages  they  may  recover,  and  would  be  increased  there- 
by.* So  a  broker  may  sue  in  his  own  name,  for  the  breach  of 
contract  to  transmit  a  telegraph  message  sent  by  him,  and  direct- 
ing the  sale  of  property  of  his  principal,  in  which  the  broker  has 
a  special  interest  and  for  the  sale  of  which  he  is  entitled  to  a 
commission.*  And  agents  who  have  a  special  interest  In  goods 
by  reason  of  advances  made  for  freight  upon  them,  may  maintain 
an  action  in  their  own  names  against  a  carrier  by  whose  negli- 
gence they  were  injured." 

So  an  auctioneer  has  such  a  special  property  in  the  goods  sold 
by  him,  that  he  may  maintain  an  action   for  the  price,  though 

»  Citing  Grove  v.   Dubois,  1  T.  R.  Forester,    1   M.  «fe  S.  497;  Mellish  v. 

112;   Alkyns  v.   Amber,  2  Esp.  493;  Bell,  15  East,  4;   Ward  v.   Wood,  13 

Williams  v.   Millington,  1  H.  Bl.  82;  Mass.  539;  Lazarus  b.  Comraonwealtti 

George  v.  Clagett,  7  T.  R.  355;  John-  las.  Co.,  5  Pick,  (Mass.)  76;   Farrow 

son  v.  Hudson.  11  East,  180;  Sadler  v.  v.  Commonwealtli  las.  Co..  18  Id.  53; 

Leigh,     4      Camp.     195;    Morris    t».  Rider  c.  Ocean  las.    Co.,  20  Id.  259; 

Cleasby,    1   M  «&.  S.    581 ;   Sailly   «•  Williams  v.  Ocean  Ins.  Co  ,    2  Mete. 

Cleveland,  10  Wend.  (N.  Y.)  156.  (Mass.)  303;   Somes  v.  Equitable  Ins. 

s  Citing  per  Lord  Ellenborouoh  Co.  12  Gray  (Mass.)  531. 
in  Martinis.  Coles,  1  M.  &  S.  147.  »  Citing   Shields  v.  Davis,  6  Taunt. 

«  Citing  Williams  v.    Millington,  1  65;  Brown  v.  Hodgson,  4  Taunt.  189. 
H.  Bl.  81;  Coppin  v,  Craig,  2  Marsh.  «  Fairlie  v.  Fenton,  L.  R.  5  Ex.  169. 

501;  Farebrother  v.  Simmons.  6  B.  &  '  United  States  Tel.   Co.  v.  Gilder- 

Ald.  333;  Grice  v.  Kenrick,  L.  R.  5  sieve,  29  Md.   232.  96  Am.  Dec.  519. 
Q.  B.  840.  •  Groover  v.  Warfield.  50  Ga.  644. 

♦Citing  Park  on  Ins.  403;  Grove         'United  States  Tel.  Co.  «.  Gilder- 

•.  Duboia,  1  T.  R.   113;   Hagedorn  v.  sieve,  supra. 

Oliverson,  3  M.  &  S.  485;   Garrett  o.  i»  Steamboat    Co.     v.    Atkins;     22 

Handley,  4  B.  &  C.  666;  Gumming  v.  Penn.  St.  522. 

610 


Ohap.  VI.]  LIABILITY  OF  THIRD    PERSON  TO  AGKNT.  §  759. 

they  were  sold  as  the  goods  of  a  named  principal.*  A  fortiori 
is  this  true  where  by  the  terms  of  the  sale,  the  purchase  price  if. 
to  be  paid  to  him.* 

So  a  factor  has  such  an  interest  as  will  enable  him  to  sue  foi 
the  price  of  the  goods  he  sells.'  But  a  mere  broker  can  not 
sue.* 

§  757.  Same  Subject— Principal  may  sue  or  control  Action. 
It  is  not  to  be  inferred,  however,  that  the  agent  is  the  only  party 
who  may  maintain  the  action,  for,  as  will  be  seen  in  the  follow- 
ing chapter,  it  is  a  well  settled  rule  that  when  a  contract,  not 
under  seal,  is  made  by  an  agent  for  his  principal,  even  though 
the  latter  were  not  disclosed,  the  principal  may  sue  upon  it  instead 
of  the  agent.  And  this  right  of  the  principal  to  sue  upon  the 
contract  takes  precedence  over  that  of  the  agent;  the  principal 
being  always  at  liberty  to  interfere  and  bring  the  action  in  his 
own  name  to  the  exclusion  of  the  agent's  right,*  except  where 
the  ao'ent,  by  lien  or  otherwise,  has  an  interest  or  estate  in  the 
subject-matter  of  the  action.* 

S  758.  Agent  only  may  sue  on  sealed  Contract  made  with  him 
personally.  But  where  a  contract  under  seal  is  made  by  the 
ao-ent  in  his  own  name,  the  agent  alone  is  the  party  in  whose 
name  a  recovery  upon  it  can  be  had.^ 

§  759.  Agent's  Rights  depend  upon  the  Contract.  The  liabil- 
ity of  third  persons  to  an  agent,  upon  a  contract  made  with  him, 
is  to  be  ascertained  by  that  contract  alone,  and  cannot  be  enlarged 
by  reference  to  any  agreement  between  the  agent  and  the  princi- 
pal by  which  their  mutual  rights  are  to  be  determined.' 

>  Bleecker    t».    Franklin,    2  E.    D.  Yates,  11  Johns.  (N.  Y.)  23;  Yates  e. 

Smith  (N.  Y.)  93;  Mintura  ®.  Main,  7  Foot,  12  John.   (N,  Y.)   1;  Kelley  «. 

-&.  Y.  220;  Hulse©.  Young,  16  Johns.  Munson,  7  Mass.  318,  324;  Coiiies  v. 

(N.  Y.)l.'  Gumming,  6  Cow.  (N.  Y.)  181;  Bor- 

*  Thompson  ».  Kelly,  101  Mass.  rowscale  ?>.  Bosworth,  99  Mass,  383; 
291,  3  Am.  Rep.  353.  Ludwig  ».  Gillespie,    105   N.  Y.  653; 

» Graham    t.   Duckwall,    8    Bush.  Considerant   o.    Brisbane,   22   N.  Y. 

(Ky.)  12;  Johnson  e.  Hudson,  11  East  389;    Schaefer  c.   Henkel,   75  N.  Y. 

180.  878. 

*  Fairlie  e.    Fenton,   L.  R.,  5  Ex.  •  Rowe  t>.  Rand,  111  Ind.  206 

Igg^  7  Shack  e.  Anthony,  1  Maule  &  Sel. 

*  1  Chitty  on  Pleading,  9;  Morris  B.  572;  Berkeley  c.  Hardy,  5  B.  &  O. 
Cleasby,  1  M.  &  Sel.  579;   Bickerton      355;  Dancer  v.  Hastings,  4  Bing,  2. 

e.  Burrell,  5  M.  &  Sel.   385;  Vischer         »  Evrit  «.  Bancroft,  22  Ohio  St.  172. 

611 


§  7C0.  THE    LAW    OF    AGENCY.  [Book  lY. 

§  760.  Right  of  assumed  Agent  to  show  himself  Principal. 
The  question  of  the  right  of  one,  who  has  contracted  in  the  char- 
acter of  an  agent,  to  throw  off  this  character  and  show  himself 
to  be  the  real  principal  in  the  transaction,  is  one  attended  with  no 
little  difficulty.  Every  man  has  the  right  to  determine  for  him- 
self with  whom  he  will  deal,  and  he  cannot  have  another  person 
thrnst  upon  him  witiiout  his  consent.  It  may  be  of  importance 
to  him  who  performs  the  contract,  as  when  he  contracts  with 
another  to  paint  a  picture,  or  write  a  book,  or  furnish  articles  of 
a  particular  kind,  or  relies  upon  the  character  or  qualities  of  an 
individual,  or  has  reasons  why  he  does  not  wish  to  deal  with  a 
particular  party.  In  all  these  cases,  he  may  select  the  person  to 
whom  he  will  entrust  the  performance,  and,  having  selected  one, 
he  can  not  be  compelled,  against  his  will,  to  accept  performance 
from  another.' 

It  is  obvious,  also,  that  an  attempt  to  enforce  the  performance 
of  a  contract  which  is  purely  executory,  involves  different  con- 
siderations than  an  endeavor  to  recover  from  a  third  person  the 
stipulated  return  for  a  performance  fully  executed  by  or  on  behnlf 
of  the  agent.  Equally  manifest  is  it  that  the  fact  whether  the 
agent  assumed  to  act  for  a  named,  or  for  an  unnamed  principal, 
is  an  important  element.  These  considerations  suggest  a  division 
of  the  question  thus :  The  right  of  an  assumed  agent  to  show 
himself  to  be  the  real  principal,  1.  Where  he  contracted  for  a 
named  principal  and  the  contract  is,  a.  executory,  or,  h.  executed 
2.  Where  he  contracted  for  an  unnamed  principal  and  the  con- 
tract is,  a.  executory,  or,  b.  executed. 

1.  a.  A  person  who  has  assumed  as  the  agent  of  a  named  prin- 
cipal, to  pledge  the  performance  of  that  principal  to  a  tliird  per- 
son, can  not,  while  the  contract  remains  unperformed,  insist  upon 
substituting  himself  as  the  real  principal,  without  the  consent  of 
the  other  party,  in  any  case  in  which  it  may  reasonably  be  con- 
sidered that  the  skill,  ability  or  solvency  of  the  named  principal 
was  a  material  ingredient  in  the  contract.'     If  A  contract  with  B 

'  Boston  Ice  Co.  v.  Potter,  123  (Q.  B.)  655.  "In  many  such  cases, 
Mass.  28,  25  Am.  Rep.  9;  Boiilton  v,  such  as,  for  instance,  the  case  of  con- 
Jones,  2  H.  &  N.  564;  Schmaliug  v.  tracts  in  which  the  skill  or  sol- 
Thomlinson,  6  Taunt.  147.  vency  of  the  person  who  is  named  as 

»  Rayner  v.  Grote,15  Mees.  &Wel3.  the  principal  may  reasonably  be  con- 

859;  Schmaltz  v.  Avery,  16  Ad.  &  Ell.  sidered  as  a  material  ingredient  in  the 

612 


Chap.  YI.]  LIABILITY  OF  THIRD    PERSON  TO  AGENT.  §  760. 

as  the  assumed  agent  of  C  for  the  personal  services  of  C,  B  can 
not,  by  offering  to  perform  the  contract  himself,  recover  the  sti- 
pulated compensation  from  A.  This  principle  is  too  plain  to 
require  illustration. 

1.  b.  A  person  who  has  assumed,  as  the  agent  of  a  named  prin- 
cipal, to  pledge  the  performance  of  that  principal  to  a  third  per- 
son, may,  if  the  contract  has  been  performed  by  himself  as  prin- 
cipal with  the  knowledge  and  express  or  implied  consent  of  such 
third  person,  compel  performance  to  himself  on  the  part  of  such 
third  person,  although  personal  considerations  may  have  entered 
into  the  making  of  the  contract ;  but  where  such  personal  consid- 
erations are  involved,  he  can  not  recover  if  the  performance  by 
himself  as  principal  has  been  without  the  knowledge  or  consent 
of  the  other  party,'  If  A  contracts  with  B  for  the  personal  ser 
vices  of  C,  and  B  offers  to  perform  and  does  perform  as  being 
himself  C,  with  the  knowledge  and  without  the  dissent  of  A, — 
hence  with  A's  implied  consent, — B  may  recover  of  A  the  sti- 
pulated compensation ;  but  not  if  the  performance  was  without 
the  knowledge, — and  hence  without  the  express  or  implied  con- 
sent,— of  A. 

Whether,  where  the  contract  can  not  reasonably  be  considered 
to  have  been  entered  into  from  any  consideration  of  personal 
skill,  solvency  or  other  personal  reason,  it  is  competent  for  one, 
who  has  contracted  as  the  assumed  agent  of  a  named  principal,  to 
show  himself  to  be  the  real  principal,  and  recover  upon  the  con- 
tract, whether  executed  or  executory,  is  not  clear  from  doubt.  It 
has  been  intimated  in  one  or  two  cases,*  that  this  might  be  done 
if  notice  of  the  true  state  of  the  case  were  given  to  the  other 
party  before  the  action  was  begun,  but  no  case  has  been  discov- 

contract,   it  is  clear  that  the  agent  Schmaltz  «.   Avery,   16  Q.   B.    655; 

cannot  then   show  himself  to  be  the  Eggleston  c.  Boardman,  37  Mich.   14; 

real   principal,    and  sue  in  his  own  Boston  Ice  Co.  v.  Potter,    123  Mass. 

name;  and  perhaps  it  may  be  fairly  28,    25   Am.    Rep.  9;   "Winchester  v. 

urged  that  this,  in  all  executory  con-  Howard,  97  Mass.  303;   93  Am.  Dec. 

tracts,  if  wholly  unperformed,  or  if  93;Mudget).  Oliver,  1  Allen   (Mass.) 

partly  performed  without  the  knowl-  74;  Orcutt  v.  Nelson,   1   Gray  (Mass.) 

edge  of  who    is  the    real  principal,  530      Smelting  Co.   v.    Belden   Co., 

may  be  the  general  rule."    Aldbr-  127  U.  S.  387. 

BON,  B.  in  Rayner    v,    Grote,    supra  ^Bickerton  v.  Burrell,  5  Maule  & 

at  p.  865.  Pel.    383;  Foster  v.    Smith,    2  Cold. 

>  Rayner  «.  Grote,  15  M.  &W.  859;  'T.  nn.)  475,  88  Am.  Dec.  604. 

613 


§  761.  THE   LAW   OF   AGENCY.  [Book   IV. 

ered  in  which  this  precise  question  was  presented  for  adjudica- 
tion, and  no  satisfactory  reason  is  apparent  which  will  permit  one, 
who,  in  express  terms,  has  made  another  than  himself  the  party  to 
the  contract,  by  any  mere  notice  to  change  the  essential  nature  of 
the  agreement,  or  be  permitted  to  recover,  as  a  party,  when  he 
has  in  terms  made  himself  not  a  party.'  The  true  rule  would 
seem  to  be  that  it  can  not  be,  in  any  case,  while  the  contract 
remains  executory,  and  that,  if  it  can  be  done  where  the  contract 
is  executed,  it  can  only  be  to  the  extent  that  the  execution,  by 
tlie  assumed  agent  as  the  real  principal,  has  been  with  the  knowl- 
edge and  consent  of  the  other  party.* 

2.  Where  the  contract  is  entered  into  by  the  assumed  agent, 
as  agent  for  an  unnamed  principal,  no  personal  considerations 
can  arise,  because  as  no  particular  principal  is  named  or  known, 
no  particular  elements  of  skill,  solvency  or  ability,  are  involved. 
In  most  of  such  cases,  the  words  referring  to  a  principal 
would,  in  accordance  with  established  rules,  be  regarded  as 
mere  desoriptio  personos,  or  be  rejected  as  surplusage.  In  such 
a  case,  the  third  person  must  be  deemed  to  be  liable  to  some 
one,  and  as  no  one  else  is  designated,  it  must  be  presumed  that 
he  is  liable  to  the  person  who  in  fact  sustained  the  relation  of 
principal  in  the  transaction,  and  this  principal  may  as  well  be  the 
assumed  agent  as  a  stranger.  In  either  event,  the  rights  of  the 
third  person  are  not  impaired,  because  he  has  contracted  to  ans- 
wer to  any  one  who  might  be  entitled.' 

In  cases  of  this  nature,  it  is  immaterial  whether  the  claim  be 
made  while  the  contract  remains  executory  or  after  it  is  fully 
executed.  The  other  party  is,  of  course,  entitled  to  be  informed 
as  to  who  the  real  principal  is,  whether  the  ngent  or  a  stranger, 
that  he  may  have  opportunity  to  avail  himself  of  any  rights  which 
he  may  have  against  such  principal. 

8  761.  Agent  may  recover  Money  paid,  by  him  ixnder  Mistake 
or  illegal  Contract.  Where  an  agent  pays  out  the  money  of  his 
principal  to  a  third  person  under  a  mistake  of  fact,*   or  where 

*  Bickerton  v.   Burrell,  5  M.  «fc  S.  «  See  cases  in  preceding  note. 

383.     See  also  Boston  Ice  Co.  v.  Pot-  •  Schmaltz  v.  Avery,  16  Q.   H.  655. 

ter,  mpra. ;  Hills  v.  Snells,  104  Mass.  *  Lord  Mansfield  laid  down  the 

173;  Boulton  fl.  Jones,  2  H,  »&  N.  564;  rule    in   an   early   case    as  follows; 

Schmaling  «.   Thomlinson,  6  Taunt.  "  Where  a  man  pays  money  by  his 

147^  agent,    which     ought    not    to    have 

614 


Ohap.  VI.]         LIABILITY  OF  THIBD   PERSON  TO  AGENT.  §  762. 

he  pays  it  upon  a  contract  whicli  subsequently  proves  to  be  illegal, 
if  the  agent  was  ignorant  of  its  illegality  at  the  time, '  he  may 
sue  for  and  recover  it  in  his  own  name.  Such  an  action  is,  ordi- 
narily, the  only  remedy  by  which  an  agent,  who  has  parted  with 
his  principal's  money  under  a  mistake  of  fact,  and  for  which  he 
is  answerable  to  his  principal,  can  reimburse  himself.' 

In  such  cases,  however,  as  will  be  seen,  the  principal,  being 
the  party  to  whom  the  money  belongs,  and  for  whose  benefit  it  is 
to  be  recovered,  may  ordinarily  sue  instead  of  the  agent.* 

Thus  an  agent  who,  not  being  authorized  to  exchange  money 
of  his  principal  in  his  hands,  has  so  exchanged  it  and  received  in 
exchange  a  worthless  counterfeit  bill,  may  maintain  an  action  in 
his  own  name  to  recover  the  money  so  paid  out  by  him.* 

But  an  agent  who  has  carelessly  or  mistakenly  sold  the  prop- 
erty of  his  principal,  entrusted  to  him  for  sale,  for  less  than  the 
proper  price,  the  purchaser  not  being  in  fault,  can  not  recover  of 
such  purchaser  the  difference  between  the  selling  price  and  the 
real  price,  although  the  agent  may  have  paid  such  difference  to 
his  principal  in  the  settlement  of  the  mistake.* 

§  762.  What  Defenses  open  to  third  Person.  "  Where  the 
agent  sues  in  his  own  name,"'  says  Mr.  Evans,  "  the  defendant 
may  avail  himself  of  all  defenses  whicli  would  be  good  at  law 
and  in  equity : 

a.  As  against  the  agent  who  is  the  plaintiff  on  the  record  ;*  or 

been  paid,  either  the  agent,  or  prin-  lenboroxtgh    ruled   that    the  agent 

cipal,  may  bring  an  action  to  recover  having  effected  the  insurance  without 

it  back.     The  agent  may,  from  the  any  consciousness  of  its  illegality  at 

authority  of  the  principal;  and  the  the  time  vpas  entitled  to  recover  back 

principal  may,  as  proving  it  to  have  the  premium  paid,  as  money  had  aud 

been  paid  by  his  agent."     Stevenson  received    by    the    defendant    to  the 

«.  Mortimer,  Cowp.  805.  plaintiff's  use.  and  without  consider- 

•  Oom  V.  Bruce,   12  East,  225.     In  ation  as  the  risk  never  attached, 

this  case  an  insurance  had  been  made  "^  Kent    v.     Bornstein,     12     Allen 

on  goods  from  a  port  in  Russia  to  (Mass.)  342. 

London,    by    an    agent    residing  in  'Stevenson®.  Mortimer,  Cowp. 805. 

London  for  a  Russian  subject.     The  ♦  Kent    -o.     Bornstein,     supra.     In 

insurance  was  in  fact  made  after  the  such  a    case    it  is  not  necessary  to 

commencement  of  hostilities  between  tender  back  the  worthless  bill  before 

Russia    and    England,    but    before  bringing  the  action, 

knowledge  of  it  reached  London,  and  «  Hungerford  v.  Scott,  37  Wis.  341. 

after  the  ship  had  sailed  and  been  •  Evans  on  Agency,  387. 

confiscated.      At  the  trial  Lord  El-  i  Gibson  v.  Winter,  5  B.  «&  Ad.  96. 

615 


§  763.  THE    LAW    OF    AGENCY.  [Book    lY. 

b.  As  against  the  principal  for  whose  use  the  action  is  brought, 
provided,  of  course,  a  principal  exists."  • 

§  763.  What  Damages  Agent  may  recover  on  Contract. 
Where  the  action  is  brought  by  the  agent  upon  the  contract,  he 
may,  unless  the  principal  intervenes,  recover  the  full  measure  of 
damages  for  its  breach,  in  the  same  manner  as  though  the  action 
had  been  brought  by  the  principal.*  The  fact  that  the  damages, 
when  recovered,  will  belong  to  the  principal  does  not  aflEect  this 
right' 

But  where  the  principal  intervenes,  the  agent,  when  permitted 
to  sue  at  all,  can  only  recover  to  the  extent  of  his  special  interest, 
by  virtue  of  which  the  action  is  maintained. 

II. 

IN   TOKT. 

§  764.  Agent  may  sue  for  personal  Trespass.  For  all  tres- 
passes and  injuries  committed  by  third  persons  to  the  agent  per- 
sonally in  the  course  of  his  employment,  the  agent  may  sue  and 
recover  in  his  own  name.  In  a  proper  case  the  principal  might 
recover  his  damages  also. 

Thus  an  agent,  selling  goods  upon  commission,  may  recover 
damages  from  a  third  person  for  a  libel  upon  him  in  reference 
to  the  subject-matter  of  his  agency,  by  reason  of  which  he  lost 
customers  and  was  deprived  of  the  natural  gains  and  profits  of 
the  business.* 

§  765.  When  Agent  may  sue  for  Injuries  to  Principal's  Prop- 
erty. The  possession  by  a  mere  servant  of  his  master's  goods  is 
ordinarily  deemed  to  be  so  far  the  possession  of  the  master,  as  to 
give  the  servant  no  right  of  action  against  one  who  disturbs  that 
possession,*  but  where  the  party  in  possession  has  a  special  prop- 
See  also  Leeds  v.  Marine  Ins.  Co.,  6  Davis,  2  C.  &  P.  49;  Dancer  v.  Hast- 
Wheat.  (U.  8.)  565.  ings,  4  Bing.  2. 

»  Grice  v.   Keurick  L.   R.  5  Q.  B.  » Groover     «.      Warfleld,      tupra; 

344;  Smith  t.  Lyon,  3  Camp.  465.  United  States  Tel.  Co.  v.  Gildersleve. 

'Groover  v.  Warfleld,  50  Ga.  644;      supra. 
United  States  Tel.  Co.  v.  Gildersleve,  *  Weiss ^.Whittemore,  28  Mich.  866. 

29  Md.  232,  96  Am.  Dec.  519;  Joseph         •  Fauliiner  v.  Brown,  13  Wend,  (N. 
•.  Knox,  3  Camp.   320;  Gardiner  v.      Y.)  63;  Tuthill  ».  Wheeler,  6  Barb. 

(N.  Y.)  362. 

616 


Chap.  YI.]         LIABILITY  OF  THIED    PERSON  TO  AGENT.  §  765. 

erty  or  interest  in  thera,  the  rule  is  different.  Thus  an  agent 
who  is  in  possession  of  his  principal's  goods,  having  a  special 
property  or  interest  therein,  as  in  the  case  of  a  factor,  may  main- 
tain an  action  in  his  own  name  against  any  person  who  wrong- 
fully injures  or  converts  the  goods,'  though  such  person  were  the 
absolute  owner.*  As  to  all  persons  except  the  owner,  or  those 
claiming  under  him,  the  agent  may  thus  recover  the  full  value 
of  the  goods ;  •  but  as  against  such  owner,  or  those  claiming  under 
him,  he  can  recover  only  to  the  extent  of  his  interest.*  The 
defendant  who  has  disturbed  the  agent's  possession  will  not  be 
permitted  to  set  up  the  rights  of  a  third  party  in  defense,  unless 
he  can  show  that  he  acted  under  the  authority  of  such  third 
party.'  Where,  however,  such  an  agent  is  not  in  possession,  he 
may,  if  he  can  show  that  he  is  entitled  to  immediate  possession, 
recover  from  one  who  wrongfully  denies  him  the  right.*  As 
against  a  mere  wrong  doer,  he  would  in  this  case  as  in  the  other, 
be  entitled  to  recover  the  full  value  of  the  goods ; '  but  as  against 
the  owner,  or  one  claiming  under  him,  only  to  the  extent  of  his 
special  property.* 

'  Robinson  v.  Webb,  11  Bush  (Ky.)  *  Littell  v.  Fossett,  ntpra.   White  v. 

464;  Beyer  v.  Bush,  50  Ala.  19;  Fitz-  Webb,  supra;  Ingersoll  v.  Van  Bok- 

hugh  V.  Wiman,   U  N.  Y.  559;  Little  kelin,  7  Cow.  (N.  Y.)  670;  Davidson 

V.  Fossett,  34  Me.    545,  56  Am.  Dec.  ».    GunsoUy,    1    Mich.  388;  Burk  v. 

671 ;  Barker  D.  Dement.   9  Gill  (Md.)  Webb,   32  Mich.    173;  Tread  well  v. 

7,  52  Am.  Dec,  670.  Davis,  34  Cal.  601;  Schley  v.  Lyon,  6 

» Little  V.   Fossett,   supra.    White  Qa.  530. 

«.  Webb,  15  Conn.  305.  »  Harker  «.  Dement,  9  Gill  (Md.)  7, 

3  Little  V.  Fossett,  supra\  Harker  v.  52  Am.  Dec.  670;  Duncan  «.   Spear, 

Dement,  supra;  Mechanics',  «&c.  Bank  11  Wend.  N.  Y.  54. 

».  Farmers',  «fcc.  Bank,   60  N.  Y.  40;  •  Cooley  on  Torts,  443-447. 

Pomeroy  v.    Smith,  17  Pick.  (Mass.)  »  See  cases  in  note  3,  supra. 

85;  CuUen  v.   O'Hara,  4  Mich.  132;  •  See  cases  in  note  4,  «upra. 
Finn  v.  W  estern  R.R.  Co. ,  1 12  Mass.  524. 

617 


THB   LAW    OF   ▲OttNOY. 


[Book  lY. 


CHAPTER    YII. 

THE  DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO 
THE  PRINCIPAL. 


g  766.  In  general. 

767.  The  Rule  stated. 

/,  The  Right  to  Sue  on  Contract  made 
by  Agent. 

768.  !May  sue  on  Contracts  made  in 

Name  of  Principal. 

769.  May  sue  on  Contracts  made  in 

his  Behalf  but  in  Agent's 
Name. 

770.  Same    Subject  —  How    when 

Contract  involves  Elements 
of  personal  Trust  and  Con- 
fidence. 

771.  Same  Subject— Principal  can 

not  sue  where  Contract 
solely  with  Agent  person- 
ally. 

772.  Same    Subject  —  Principal's 

Right  superior  to  Agent's. 

773.  Principal  subject  to  Defenses 

which  could  have  been  made 
against  Agent. 

774.  Same  Subject — Limitations  of 

Rule. 

775.  How    Principal    affected    by 

Agent's  Fraud. 

776.  Third  Person  can  not  dispute 

Principal's  Right  When — 

777.  Summary  of  Rules. 

9.  Right  to  Recover  Money  paid  or 
used  by  Agent. 

778.  In  general. 

A. 

779.  Right  in  Cases  of  first  Class. 

B. 

780.  Principal's    Right    to    follow 

trust  Funds 


781. 
782. 


783. 


Same  Subject — Illustrations. 

Same  Subject — Further  Illus- 
trations —  Restrictive  In- 
dorsements. 

Right  to  recover  Money 
wrongfully  paid  by  Agent. 


S.  Right  to  Recover  Property. 

784.  In  general  —  Principal    may 

recover  Property  wrongfully 
applied  or  disposed  of  by 
Agent. 

785.  Principal's  Title  can  not  be 

divested  except  by  his  Con- 
sent or  voluntary  Act. 

786.  When  Possession  is  Evidence 

of  Authority. 

787.  Possession  coupled  with  In- 

dicia of  Ownership. 

788.  Same  Subject — Illustrations. 

789.  Principal  may  recover  Prop- 

erty appropriated  to  Agent's 
Uses. 

790.  Right    to    recover    Securities 

wrongfully  released. 

791.  Right    to    recover    Property 

wrongfully  sold. 

.f.  Right  to  Recover  for  Torts. 

792.  May  recover  for  Injuries  occa- 

sioned by  third  Person's 
Torts. 

793.  For  enticing  Agent  away. 

794.  For   preventing  Agent    from 

performing. 

795.  For  personal  Injury  to  Agent 

causing  Loss  of  Service. 

796.  Third   Person  not  liable    for 

Agent's  Fraud  or  Neglect 


618 


Chap.VII.]     LIABTLTTT  OF  THIRD  PERSON  TO  PRINCIPAL. 


§  767. 


6.  Hemedies  for  double  Dealing. 

797.  How  when  third  Person  con- 

spires with  Agent. 

798.  How  when  Agent    in  secret 

Employment    of    the   other 
Party. 


6.  Conclusiveness  of  Judgment  against 
Agent. 

§  799.  Principal  not  bound  by  Judg- 
ment against  Agent  to  which 
he  was  not  a  Party 


§  766.  In  general  The  profits,  benefits  and  advantages  re- 
sulting from  the  agency  belong  to  the  principal.  To  secure  them 
to  him  was  the  object  for  which  the  agency  was  created,  and  it  is 
therefore  his  right,  not  only  as  against  the  agent,  but  as  against 
third  persons  who  have  dealt  with  the  agent  as  such,  to  obtain 
and  enjoy  them.  The  right,  however,  is  based  upon  the  agent'e 
acts  and  contracts,  and  is  limited  by  them.  The  principal  can 
not  avail  himself  of  the  advantages  of  these  acts  and  contracts, 
and  relieve  himself  of  the  responsibilities  attaching  to  them. 
What  is  said  or  done  by  the  agent  within  the  scope  of  hie  author 
ity  is,  as  has  been  seen,  binding  upon  the  principal.  What  k 
said  or  done  by  the  agent  without  the  scope  of  his  authority,  is,  as 
has  been  seen,  not  binding  upon  the  principal,  unless  ratified  and 
approved  by  him.  Such  subsequent  ratification  is  equivalent  tc 
precedent  authorization.  One  of  the  most  unequivocal  evidences 
of  such  ratification  has  been  seen  to  be  the  fact  that  the  princi- 
pal, with  knowledge  of  the  facts,  appropriates  to  himself  the  bene- 
fits of  the  agent's  unauthorized  acts  or  contracts.  These  general 
principles  are  essential  to  be  borne  in  mind  in  considering  the 
questions  involved  in  the  subject  of  this  chapter. 

§  767.  The  Rule  stated.  Keeping  in  mind  these  principles  it 
may  be  said  that,  subject  to  certain  exceptions  and  modifications 
which  grow  out  of  them  and  which  will  be  fully  dealt  with  in 
the  following  sections,  the  principal  is  entitled  to  demand,  receive 
and  recover  from  third  persons  all  the  rights,  profits,  benefits  and 
advantages  based  upon  or  growing  out  of  his  agent's  dealings 
with  them,  in  the  same  manner  and  to  the  same  extent  as  thouo-h 
the  same  dealings  had  been  had  with  him  in  person.' 

These  rights,  profits,  benefits  and  advantages  may  be  souo-ht 
nnder  such  circumstances  as  to  involve : 

1.  The  principal's  right  to  sue  on  contracts  made  by  his  agent. 

>  See  Story  on  Agency,  §  418.  See,  generally,  the  cases  cited  in  the  follow- 
ing sections. 

619 


§  768.  THE   LAW   OT    AGENCY.  [Book  lY. 

2.  His  right  to  recover  money  paid  or  used  by  the  agent. 

3.  His  right  to  recover  his  property. 

4.  His  right  to  recover  for  torts  to  person  or  property. 

5.  His  remedies  for  double  dealing  between  the  agent  and  third 
persons. 

6.  The  conclusiveness  of  judgments  against  the  agent. 

1.     The  Right  to  Sue  on  Contracts  made  hy  Agent 

§  768.  May  sue  on  Contracts  made  in  Name  of  Principal. 
The  principal's  right  to  sue  upon  contracts  made  by  the  agent  in 
the  name,  and  for  the  benefit  and  advantage  of  the  princi- 
pal is,  of  course,  unquestioned.*  Here  the  principal  is  the 
nominal,  as  well  as  the  real  party  in  interest,  and  is  as  much 
entitled  to  enforce  the  contract  as  though  it  had  been  executed 
by  him  in  person.  It  has  been  seen  to  be  the  general  duty  of 
the  agent,  authorized  to  execute  a  contract  in  behalf  of  his  prin- 
cipal, to  so  execute  it  that  it  shall  be  in  fact,  what  it  was  intended 
it  should  be, — a  contract  running  from  and  to  the  principal  as  the 
party  in  interest.  But,  as  has  been  likewise  seen,  this  general 
duty  of  the  agent  is  not  always  performed,  and  cases  are  frequent 
where  from  a  disregard  of  duty,  or  a  failure  to  use  appropriate 
language,  the  contract  appears  to  be  one  made  with  the  agent 
rather  than  with  the  principal,  and  it  is  this  class  of  cases  in  which 
difficulties  arise. 

8  769,  May  sue  on  Contracts  made  in  his  Behalf  but  in 
Agent's  Name.  It  has  been  seen  in  the  preceding  chapter  that 
where  the  agent  contracts  for  the  principal,  but  in  his  own  name, 
the  agent  may,  in  general,  maintain  an  action  upon  the  contract 
against  the  other  party.  But  this  right  to  sue  has  also  there  been 
seen  to  be  subservient  to  the  principal's  superior  right  to  main- 
tain the  action  in  his  own  name  upon  all  simple  contracts.  Such 
contracts,  though  made  in  the  agent's  name  without  the  disclos- 
ure of  his  principal,  are  binding  upon  the  principal,  and 
actions  may  be  maintained  upon  them  by  the  other  party 
against  him  when  discovered.  Being  thus  liable  upon  them, 
he  should  be  entitled  to  reciprocal  rights  against  the  other 
party.  And  such  is  the  general  rule.  All  simple  contracts 
made   by   the   agent   in   the  execution   of  his   agency,   though 

» Sharp  V.  Jones,  18  Ind.  314,  81  Am.  Dec.  359. 

620 


Chap.  VII.]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 


§769. 


made  in  his  own  name  without  disclosing  his  principal  or  the 
fact  of  the  agency,  and  although  the  agent  acted  under  a  del 
credere  commission,  may  be  enforced  by  the  principal,  whether 
he  be  foreign  or  domestic,  b}"  appropriate  actions  brought  in  his 
own  name.'  Where,  however,  the  contract  was  under  seal,  the 
action  should  be  brought  by  the  principal  in  the  name  of  the 
agent.*  In  order  to  maintain  an  action  it  is,  of  course,  necessary 
for  the  principal  to  show  the  fact  of  the  agency  and  that  the 
agent,  either  through  previous  authorization  or  a  subsequent  rati- 
fication, had  power  to  bind  him  to  the  contract,  else  there  would 
be  no  mutuality  and  consequently  no  contract.'  For  the  purpose 
of  showing  that  the  ostensible  party  was  really  but  an  agent, 
resort  may  be  had  to  parol  evidence.* 


*  Tutt  t>.  Brown,  5  Littell  (Ky.)  1, 
15  Am.  Dec.  33;  Pitts  tj.  Mower,  18 
Me.  361,  36  Am.  Dec.  727;  Gilpin  v. 
Howell,  5  Penn.  St.  41;  45  Am.  Dec. 
720;  Girard  ti.  Taggart,  5  S.  &  R. 
(Penn.)  19,  9  Am.  Dec.  327;  Arling- 
ton V.  Hinds,  1  D.  Chip.  (Vt.)  431,  12 
Am.  Dec.  704;  Bayley  v.  Onondaga 
Co.  Mut.  Ins.  Co.  6  Hill  (N.  Y.)  476, 
41  Am.  Dec.  759;  Violett  v.  Powell, 
10  B.  Mon.  (Ky.)  347,  53  Am.  Dec. 
548;  Ruiz.  v.  Norton,  4  Cal.  355,  60 
Am.  Dec.  618;  Ilsley  c.  Merriam,  7 
Cush.  (Mass.)  242,  54  Am.  Dec.  721; 
Eastern  R.  R.  Co.  v.  Benedict,  5 
Gray  (Mass.)  561;  66  Am.  Dec.  384; 
Taintor  v.  Prendergast,  3  Hill  (N.  Y) 
72,  38  Am.  Dec.  618;  Huntington  v. 
Knox,  7  Cush.  (Mass.)  371;  Edwards 
v.  Golding,  20  Vt.  30;  Salmon  Falls 
Mnfg  Co.  ■».  Goddard,  14  How.  (U. 
S.)  446;  Foster  v.  Smith,  2  Cold. 
(Tenn.)474,  88  Am.  Dec.  604;  Win- 
chester V.  Howard,  97  Mass.  303, 
93  Am.  Dec.  93;  Ford  v.  Williams,  21 
How.  (U.  S.)  387;  New  Jersey  Steam 
Nav.  Co.  V.  Merchants'  Bank,  6  Id. 
344,  381;  Woodruff  v.  McGehee,  30 
Ga.  158;  Ames  v.  St.  Paul  &c.  R.  R. 
Co.  13  Minn.  413;  Mildred  v.  Her- 
mano,  8  App.  Cases  874,36  Eng.  Rep. 
(Moak)    97;    Norfolk    ».    Worthy,   1 


Camp.  837;  Wilson  «.  Hart,  7  Taunt. 
295 ;  Bickerton  v.  Burrell,  5  Maule  & 
Sel.  383;  El  kins  ».  Boston  &c.  R.  R.. 
19  N.  H.  337. 

a  Violett  v.  Powell,  10  B.  Mon. 
(Ky.)  347,  53  Am.  Dec.  548. 

3  Ruiz  v.  Norton,  4  Cal.  355,  60 
Am.  Dec.  618. 

<  "  It  is  now  well  settled  by  authori- 
ties," said  Chief  Justice  Su.a.w  of 
Massachusetts,  "that  when  the  prop- 
erty of  one  is  sold  b}''  another,  as 
agent,  if  the  principal  give  notice  to 
the  purchaser,  before  payment  to  pay 
to  himself,  and  not  to  the  agent,  the 
purchaser  is  bound  to  pay  the  priuci- 
pal,  subject  to  any  equities  of  the 
purchaser  against  the  agent. 

When  a  contract  is  made  by  deed 
under  seal,  on  technical  grounds,  no 
one  but  a  party  to  the  deed  is  liable 
to  be  sued  upon  it,  and  therefore,  if 
made  by  an  agent  or  attorney,  it  must 
be  made  in  the  name  of  the  principal, 
in  order  that  he  may  be  a  party,  be- 
cause otherwise  he  is  not  bound  by 
it. 

But  a  different  rule,  and  a  far  more 
liberal  doctrine,  prevails  in  regard  to 
a  written  contract  not  under  seal.  In 
the  case  of  Uiggias  v.  Senior,  8  Mees. 
&  Wels.  834,  it  is  laid  down  as  a  gen- 


621 


§769. 


THE    LAW   OF   AGENCY. 


[Book  IV. 


This  right  to  sue  upon  the  contract  embraces  every  appropri- 
ate action  by  which  the  rights  of  the  principal  can  be  protected 
under  it,  or  by  which  he  can  secure  to  himself  the  benefits  and 
advantages  which  flow  from  it.  Subject  to  the  exceptions  to  be 
hereafter  noted,  all  rights  and  remedies  are  open  to  the  principal 
as  though  he  were  in  fact,  that  which  he  is  in  contemplation  of 
law, — the  actual  party  to  the  contract.  He  may  thus  not  only 
sue  for  and  recover  the  direct  fruits  of  the  transaction,  as  the 
price  of  his  property  sold  by  his  agent;*  or  the  benefits  of  an 
insurance  effected  by  the  latter;*  but  he  may  recover  upon  col- 


eral  proposition,  that  it  is  competent 
to  show  that  one  or  both  of  the  con- 
tracting parties  were  agents  for  other 
persons,  and  acted  as  such  agents  in 
making  the  contract  of  sale,  so  as  to 
give  the  benefit  of  the  contract  on 
the  one  hand  to,  and  charge  with 
liability  on  the  other,  the  unnamed 
principals;  and  this  whether  the 
agreement  be  or  be  not  required  to 
be  in  writing.by  the  statute  of  frauds. 
But  the  court  mark  the  distinction 
broadly  between  such  a  case  and  a 
case  where  an  agent,  who  has  con- 
tracted in  his  own  name,  for  the  ben- 
efit, and  by  the  authority  of  a  princi- 
pal, seeks  to  discharge  himself  from 
liability,  on  the  ground  that  he  con- 
tracted in  the  capacity  of  an  agent. 
The  doctrine  proceeds  on  the  ground 
that  the  principal  and  agent  may 
each  be  bound;  the  agent,  because  by 
his  contract  and  promise  he  has  ex- 
pressly bound  himself;  and  the  prin- 
cipal, because  it  was  a  contract  made 
by  his  authority  for  his  account. 
Paterson  v.  Gandasequi.  15  East.  63; 
Magee  v.  Atkinson,  2  Mees.  &  Wels. 
440;  Trueman  v.  Loder,  11  Ad.  &  Ell. 
589;  Taintor  v.  Prendergast,  3  Hill 
(N.  Y.)  72,  38  Am.  Dec.  618;  Ed- 
wards V.  Golding,  20  Vt.  80.  It  is 
analogous  to  the  ordinary"  case  of 
a  dormant  partner.  He  is  not  named 
or  alluded  to  in  the  contract;  yet  as 
the  contract  is  shown  in  fact  to  be 


made  for  his  benefit,  and  by  his  au- 
thority, he  is  liable. 

So,  on  the  other  hand,  where 
the  contract  is  made  for  the  bene- 
fit of  one  not  named,  though  in 
writing,  the  latter  may  sue  on 
the  contract  jointly  with  others, 
or  alone,  according  to  the  interest. 
Garrett  v.  Handley.  4  B.  &  C.  664; 
Sadler  v.  Leigh,  4  Campb.  191;  Cop- 
pin  V.  Walker,  7  Taunt.  237;  Slory 
on  Agency,  §  410.  The  rights  and 
liabilities  of  a  principal,  upon  a  writ- 
ten instrument  executed  by  an  agent, 
do  not  depend  upon  the  fact  of  the 
agency  appearing  on  the  instrument 
itself,  but  upon  the  facts;  1,  that  the 
act  is  done  in  the  exercise,  and  2, 
within  the  limits,  of  the  powers  dele- 
gated; and  these  are  necessarily  in- 
quirable  into  by  evidence.  Mechan- 
ics* Bank  v.  Bank  of  Columbia,  5 
Wheat.  (U.  S.)  326;"  Huntington  v. 
Knox,  7  Cush.  (Mass.)  871.  See  also 
that  parol  evidence  is  admissible. 
Salmon  Falls  Mnfg  Co.  v.  Goddard, 
14  How.  (U.  S.)  446;  Briggs  v.  Mun- 
chon,  56  Mo.  467;  Bank  of  Odessa  t>. 
Jennings,  18  Mo.  App.  651;  Oelrichs 
V.  Ford,  21  Md.  489. 

*  Merrick's  Estate,5  W.&  S  (Penn.) 
9;  Winchester  v.  Howard,  97  Mass. 
803,  93  Am.  Dec.  93. 

*  An  undisclosed  principal  may  re- 
cover upon  an  insurance  policy  taken 
by  the  agent  in  his  own  name,  if  the 

622 


Chap.YlI.]     LIABILITT  OF  THIBD  PBR80N  TO  PEINOIPAL.  §  770. 

lateral  obligations,  as  upon  a  warranty  of  quality  or  title  made  to 
the  agent.^  So  where  an  agent  lends  the  money  of  his  principal 
taking  notes  payable  to  his  own  order  secured  by  mortgages,  the 
principal  may  enforce  or  transfer  the  notes  and  mortgages.' 

§  770.  Same  Subject— How  when  Contract  involves  Elements 
of  personal  Trust  and  Confidence.  Where  the  contract,  upon 
which  the  principal  seeks  to  recover,  is  one  wliich  may  reason- 
ably be  supposed  to  have  been  made  with  the  agent  in  consider- 
ation of  some  element  of  personal  trust  and  confidence,  a  difficult 
question  is  raised  and  one  analogous  to  that,  already  discussed  in 
the  preceding  chapter,  where  an  assumed  agent  proposes  to  show 
himself  to  be  the  real  principal,  and  to  recover  upon  a  similar 
contract. 

The  fact  that  the  elements  of  trust  or  confidence  moved  from 
the  other  party  alone, — that  he  was  to  do  some  act  involving  per- 
sonal considerations, — could  not  defeat  the  principal's  right  to 
sue,  because  it  would  be  no  hardship,  and  involve  no  prejudice, 
to  the  other  party,  to  be  required  to  render  his  performance  to 
the  real  principal.  But  if,  on  the  other  hand,  these  elements 
moved  from  the  agent, — if  they  involved  the  performance  by 
him,  as  a  condition  precedent  to  the  right  to  sue,  of  some  act 
which  must  fairly  be  considered  as  having  been  stipulated  for  in 
contemplation  of  his  personal  skill,  influence  or  solvency, — a 
different  question  is  presented.  And  here  it  would  seem  that  the 
question  whether  the  contract  on  the  part  of  the  agent  was  exe- 
cuted or  executory  must  be  the  test. 

For  it  is  certain  that  if  the  doing  of  some  personal  act,  not  yet 
done,  is  a  condition  precedent  to  the  right  to  recover,  no  undis- 
closed principal  can  force  his  own  performance  upon  the  other 
party  in  substitution  for  that  of  the  person  for  whose  individual 

agent  had  no  insurable  interest.  New  the  execution  of  the  contract,  rests  in 
Orleans  Ins.  Co.  v.  Spruance,  18  111.  the  principal;  and  the  right  of  action 
App.  576;  DeVignier  v.  Swanson,  1  upon  an  implied  warranty  or  on 
Bos.  &  Pul.  346,  note;  Browning  «.  fraudulent  representations  made  to 
Provincial  Ins.  Co.,  L.  R.  5  Priv.  the  agent  is  in  the  principal,  for  the 
Coun,  App.  263,  8  Eng.  Rep.  217  damages  which  ground  the  action 
'  "  In  case  of  a  purchase  or  ex-  follow  the  property."  1  Am.  Lead, 
change  of  goods  by  an  agent  even  if  Cas.  643;  Cushingc.  Rice,  46  Me.  303, 
the  principal  be  not  disclosed,  or  the  71  Am.  Dec.  579;  Odessa  Banke,  Jen- 
bill  of  sale  be  made  to  the  agent  him-  nings,  18  Mo.  App.  651. 
self,  the  property,  immediately  upon         *  Caldwell  t>.  Meshew,  44  Ark.  564, 

623 


§  771.  THE    LAW    OF    AGENCY.  [Book    IV". 

performance  the  other  party  had  stipulated.'  If,  for  example,  A 
contracts  with  lawyer  B  to  argue  A's  case  in  court  for  a  stipu- 
lated compensation,  lawyer  C  cannot,  against  A's  will,  assert  that 
B  was  but  his  agent,  and  therefore  insist  upon  arguing  the  cause 
himself  and  recovering  the  compensation.'  Nor  would  it  make 
any  difference  that  other  people  might  think  or  know  that  0 
could  argue  the  case  a  great  deal  better  than  B.  A  having  em- 
ployed B,  has  a  clear  right  to  B's  services.  If,  however,  A  should, 
knowingly  and  without  dissent,  permit  C  to  make  tlie  argument 
in  the  place  of  B,  A's  right  to  a  personal  argument  from  B  must 
be  considered  to  be  waived.' 

But  if,  on  the  other  hand,  the  contract  has  been  fully  per- 
formed on  the  part  of  the  agent,  no  objection  could  be  made  to 
permitting  the  real  principal  to  require  the  other  party  to  render 
performance  to  him.  Thus,  in  the  illustration  used,  if  B,  who 
is  in  reality  C's  agent,  personally  argues  A's  cause  as  he  agreed, 
A  can  suffer  no  hardship  if  C  should  be  permitted  to  recover  the 
compensation.*  The  right  of  the  other  party  to  make  the 
defenses  against  the  principal  which  he  could  have  made  against 
the  agent,  had  the  latter  brought  the  action,  is  considered  in  a 
subsequent  section. 

§  771.  Same  Subject— Principal  cannot  sue  where  Contract  is 
solely  with  Agent  personally.  The  right  of  the  principal  to  sue 
upon  the  contract  made  by  the  agent  in  his  own  name  flows  from 
the  fact  that  the  agent  made  the  contract  in  reality,  though  per- 
haps this  may  have  been  unknown  to  the  other  party,  as  the 
agent  of  the  principal,  and  by  his  authority ;  and  the  principal 
is,  therefore,  entitled  to  enforce  the  contract,  not  only  upon  the 
ground  that  the  benefits  of  his  agent's  acts  accrue  to  him,  but  also 
upon  the  ground  that  he  is  himself, — wlien  discovered, — liable 
upon  the  contract  to  the  other  party.  If,  therefore,  as  is  coin])0 
tent  to  be  done,  the  other  party  with  knowledge  of  the  agency, 
dealt  with  the  agent  as  being  in  fact  the  principal,  and  the  agent 
pledged  his  individual  credit,  there,  as  has  been  seen,  the  princi- 
pal is  not  bound, — is  not  a  party  to  the  contract  and  cannot 
enforce   it.     Every  man  has  a  right   to   determine  for  himself 

>  Boston    Ice    Co    v.    Potter,    123  «Eggleston®.  Boardman,37Micb.l4 

Mass.  '28,  35  Am.  Rep.  9;  Boulton  v.  »  Eggleston  v.  Boardmau,  supra. 

Jones,  2  H.  &  N.  504;  King  v.  Bat-  *  Giojan    v.    Wade.   2   Stark.  443; 

terson,  13  R.  I.  117,  43  Am.  Rep.  13.  Warder  v.  White,  14  111.  App.  50. 

624 


Chap.YIL]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  773. 

what  parties  he  will  deal  with,  and  if  the  other  party  has  ex- 
pressly dealt  with  the  agent,  to  the  exclusion  of  the  principal,  he 
cannot  be  made  liable  to  the  principal.* 

§  772.  Same  Subject— Principal's  Eight  superior  to  Agent's. 
The  principal's  right  to  bring  the  action  takes  precedence  of  the 
agent's,  and  in  all  cases  where  either  may  sue,  the  principal,  by 
giving  notice  of  his  rights  to  the  other  party  and  demanding  per- 
formance to  himself,  may  cut  off  the  agent's  right  to  sue,*  except 
m  those  cases  in  which  the  agent  has  a  lien  upon  the  subject- 
ir)atter  of  the  contract  equal  to  or  greater  than  the  claim  of  the 
principal.* 

Thus  if  an  agent  sells  goods  of  his  principal  but  in  his  own 
name,  the  principal  may  interpose  before  payment  and  forbid  it 
to  be  made  to  his  agent ;  and  a  payment  made  to  the  agent  after 
such  notice  will  not  bind  the  principal.*  The  mere  fact  that  the 
agent  takes  from  the  purchaser  a  promissory  note  payable  to  the 
agent  personally,  will  not  defeat  the  principal's  right."  Of 
course  if  the  note  were  negotiable  and  came  into  the  hands  of  a 
hona  fide  holder,  such  a  holder  would  be  protected.  But  if  the 
note  were  not  so  negotiated,  or  if,  by  the  laws  of  the  state,  it  did 
not  constitute  payment,  the  principal  might  bring  his  action  upon 
the  contract  of  sale,*  but  in  such  a  case  he  should  be  prepared  to 
tender  back  the  note  upon  the  trial. 

After  the  principal  has  interposed  and  given  notice  of  his 
claim,  his  right  to  sue  cannot,  of  course,  be  afterwards  defeated 
or  impaired  by  any  dealings  between  the  other  party  and  the 
agent.' 

§  773.  Principal  subject  to  Defenses  which  could  have  been 
made  against  Agent.     But  if  the  principal  would  avail  himself 

•  Humble  v.  Huuter,  13  Q.  B.  810;  »  A  principal  may  sue  in  his  own 
Winchester  «.  Howard,  97  Mass.  303;  name  on  a  promissory  note,  not  ne- 
93  Am.  Dec.  93.                                        gotiable  made  for  his  benefit  although 

«  Sadler   t.    Leigh,   4  Camp.   195;  payable  to  his  agent.     National  Life 

Pitts  «.  Mower,  18  Me,  361,  36  Am.  Lis  Co.  e.  Allen,  116  Mass.  393. 

Dec.  727;   Huntington    t.    Knox,    7  •  Pitts  v.  Mower,  supra. 

Cusb,  Mass.  371;  Warder  ».  White,  »  Norcross  ».  Pease,  5  Allen  (Mass.) 

14  111.  App.  50.  331;  Jones  v.  Witter;  13  Mass.  304; 

3  Hudson  t>.  Granger,  5  B.  «S;  Aid.  Eastman®.  Wright,  6  Pick.    (Mass.) 

27.  322;    Sigourney  v.  Seveny,   4  Cush. 

*  Pitts  V.  Mower,  supra;  Hunting-  (Mass.)  176;  Rockwood  v.  Brown,  1 
ton  V.  Knox,  supra.  Gray  (Mass.)  261. 

40  625 


R  773.  THB   LAW   OF   AGENCY.  [Book  IV. 

of  the  benefits  of  a  contract  made  by  an  agent  in  bis  own  name 
witliout  disclosing  bis  principal,  he  must  also  assume  the  respon- 
sibilities of  the  contract.  He  must  take  the  contract  as  it  exists 
at  the  time  he  interposes,  and  subject  to  all  the  rights  which  the 
other  party  then  possesses  against  the  agent.  In  the  homely  but 
expressive  language  of  a  learned  judge,  the  principal  must  "  step 
into  the  shoes  of  the  agent."  Hence  where  a  third  person,  who 
has  entered  into  a  contract  with  the  agent  in  ignorance  of  the 
fact  that  he  was  not  the  real  principal  as  he  assumed  to  be,  is  sued 
upon  the  contract  by  the  principal,  he  may  avail  himself,  as 
against  the  principal,  of  every  defense,  whether  it  be  by  common 
law  or  statute,  which  existed  in  his  favor  against  the  agent  at 
the  time  the  principal  first  interposed  and  demanded  perform- 
ance to  himself.'  This  right  is  not  affected  by  the  fact  that  the 
asent  in  thus  entering  into  the  contract  in  his  own  name  without 
disclosing  his  principal,  acted  in  contravention  of  the  express 
directions  of  his  principal.' 

If,  therefore,  before  he  has  knowledge  that  the  assumed  prin- 
cipal was  but  the  agent  of  another,  the  other  party  has  made  pay- 
ments to  the  agent  upon  the  contract,  such  payments  will  bind 
the  principal ;  ^  so  if,  in  such  a  case,  and  before  the  real  princi- 
pal has  interposed,  the  other  party  has  acquired  a  set-off  against 
the  agent,  the  principal  will  be  bound  by  the  set-off/ 

This  rule,  however,  does  not  apply  where  an  agent,  as  for 
instance,  a  mere  broker,  is  authorized  to  sell  the  goods  of  his 
principal,  but  is  not  entrusted  either  with  the  possession  of  the 

»  Rabonee.  Williams,  7  T.  R.  356,  365;  Woodruff  t>.  McGehee,  30   Ga. 

note;  George  B.  Clagett.  7  T.  R.  355;  158;    Baltimore     Coal     Tar    Co.    v. 

Semenza  «.  Brinsley,  18  C.  B.  (N.  S.)  Fletcher,   61    Md.    288;    Amann    v. 

467,  477;  Borries  B.Imperial  Ottomaa  Lowell,  66  Cal.  306;    Bernshouse  v. 

Bank,  L.  R.  9,  C.  P.  38,  7  Eng.  Rep.  Abbott,  16  Vroom  (N.  J.),531,  46  Am. 

(Moak)  138;  Ex  parte  Dixon,  4  Ch.  Rep.  789. 

Div.  133,  19  Eng.  Rep.   (Moak)  724;  '  Ex  parte  Dixon,  4  Ch.  Div.   133, 

Mildred  t;.  Hermano,  8  App.  Cas.  874,  19  Eng.    Rep.    (Moak)  724;   Peel  v. 

36  Eng.  Rep.   (Moak)  97   and  note;  Shepherd,  58  Ga.  365;  Eclipse  Wind 

Tutt «.  Brown,  5  Littell  (Ky.)  1,  15  Mill  Co.  v.  Thorson,  46  Iowa,  181. 
Am.  Dec.  33;  Taintor  v.  Prendergast,  »  Peel  v.  Shepherd,  supra. 

8  Hill  (N.  Y.)  72,  38  Am.    Dec.  618;  <  Bernshouse  ».  Abbott,  16  Vroom 

Ruiz  V.  Norton,  4  Cal.    355,    60  Am.  (N.  J.)  531,  46  Am.  Rep.  789,  30  Alb. 

Dec.  618;  Ilsley  v.  Merriam,  7  Cash.  L.  Jour.  51;  Baring  v.  Corrie,  2  B.  & 

(Mass.)  242,  54  Am.  Dec.  721;  Foster  Aid.  137;  Crosby  v.  Hill,  39  Ohio  St. 

e.  Smith,  2  Cold.  (Tenn.)  474.  88  Am.  100;  Harrison  v.  Ross,  44  N.Y.  Super. 

Dec.  604;  Peel  v.  Shepherd,  58  Ga.  Ct.  230. 

626 


Chap.yil.]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  774. 

goods  or  other  indicia  of  property  therein.  In  such  a  case  the 
purchaser,  when  sued  bj  the  principal,  cannot  set  off  a  debt  dne 
from  the  agent.'  "Where,  on  the  other  hand,  as  in  the  case  of  a 
factor,  the  agent  is  entrusted  with  the  possession  of  goods  sold, 
and  makes  the  sale  in  his  own  name  without  disclosing  his  prin- 
cipal, the  other  party,  when  sued  by  the  principal  upon  the  con- 
tract may  set  off  against  him  a  debt  due  from  the  agent. 

In  order  to  establish  such  a  set-off  the  defendant  must  show  : — 

1.  That  the  contract  was  made  by  a  person  whom  the  plaintiff 
had  intrusted  with  the  possession  of  the  goods  with  power  to 
eell  them. 

2.  That  the  person  sold  them  as  his  own  goods  and  in  his  own 
Dame  as  principal. 

3.  That  the  defendant  dealt  with  him  as,  and  believed  him  to 
6e,  the  principal  in  the  transaction,  up  to  the  time  that  the  set-off 
accrued.* 

§774.  Same  Subject— Limitations  of  this  Rule.  It  is  obvious 
that  this  rule  is  intended  for  the  protection  of  third  parties  who 
have  acquired  riglits  while  dealing  with  the  agent  as  the  real 
principal  in  ignorance  of  any  other,  and  who  would  be  preju- 
diced by  permitting  another  person  to  interpose  and  appropriate 
the  benefits  of  the  dealing  without  recognizing  their  rights.  But 
where  the  reason  of  the  rule  fails,  the  rule  itself  does  not  apply. 
Hence  if,  before  the  right  accrued  which  they  seek  to  apply 
against  the  principal,  the  other  parties  had  knowledge,  or  what 
is  equivalent  to  knowledge,  reasonable  ground  to  believe,  that 
the  person  with  whom  they  were  dealing  was  but  an  agent, 
whether  the  principal  was  disclosed  or  not,  the  rights  so  acquired 
cannot  be  interposed  against  the  action  of  the  principal.* 

'  Bernshouse  v.  Abbott,  supra;  Ra-  »  Hogan  e.  Shorb,  24  Wend.  (N.  Y.) 

done  V.  Williams,  7  T.  II.  356,  note;  458;  Bliss  v.   Bliss,   7  Bosw.  (N.  Y.) 

Semenzar).  Brinsley,  18  C.  B.  (N.  S.)  339;  Baring  v.  Corrie,  2  B.    &  Aid. 

467;    Borries    v.    Imperial    Ottoman  137;  Childers  t>.  Bowen,  68  Ala.  221; 

Bank,  L.  R.  9  C.  P.  38,  7  Eng.  Rep.  Wright ».  Cabot  47  N.Y.  Super  Ct.  229, 

(Moak)  138;  Ex  parte  Dixon,  4  Ch.  s.  c.  89  N.  Y.  570;  Frame  v.  William 

Div.  133,  19  Eng.   Rep.   (Moak)  724;  Penn  Coal    Co.,    97  Penn.    St.    309; 

Pratt  V.  Collins,  20  Hun  (N.  Y. )  126.  Mildred    v.    Hermano,    8  App.    Cas. 

«Mr.  Justice  WiLLES  in  Semenza  874,  36  Eng.    Rep.    (Moak)  97;    Mc- 

«.  Brinsley.  18  C.  B.  (N.  S.)  467.  477,  Lachlin  v.  Brett,  105  (N.Y.)  391;  New 

as  modified  by  Bbett,  J.,  mEx  parte  Zealand  Land  Co.  v.  Ruston,  5  Q.  B. 

Dixon,  4  Ch.  Div.  133,  19  Eng.  Rep.  Div.  474,  29  Eng.  Rep.  399. 
(Moak)  724. 

627 


R  775.  THE    LAW    OF    AQENOT.  [Book  IV. 

So  in  a  recent  case  ^  it  is  said,  "  the  buyer  must  be  cautious, 
and  not  act  regardless  of  the  rights  of  the  principal,  though 
nndisclosed,  if  he  has  any  reasonable  grounds  to  believe  that  the 
party  with  whom  he  deals  is  but  an  agent.  Hence,  if  the  char- 
acter of  the  seller  is  equivocal, — if  he  is  known  to  be  in  the  habit 
of  selling  sometimes  as  principal  and  sometimes  as  agent,  a  pur- 
chaser who  buys  with  a  view  of  covering  his  own  debt  and 
availing  himself  of  a  set-off,  is  bound  to  inquire  in  what  character 
he  acts  in  the  particular  transaction  ;  and  if  the  buyer  chooses  to 
make  no  inquiry,  and  it  should  turn  out  that  he  has  bought  of 
an  undisclosed  principal,  he  will  be  denied  the  benefit  of  his 
set-off.*  If  by  due  diligence  the  buyer  could  have  known  in 
what  character  the  seller  acted,  there  would  be  no  justice  in 
allowing  the  former  to  set  off  a  bad  debt  at  the  expense  of  the 
principal."  •  The  defendant  is  a  competent  witness  upon  the 
question  whether  he  had  such  knowledge  or  not.* 

§  775.  How  Principal  aflfectod  by  Agent's  Fraud.  But  not- 
only  is  the  principal's  action  thus  subject  to  the  right  of  set-off 
which  existed  as  against  the  agent,  but  it  is  also  subject  to  cer- 
tain defenses  and  equities  growing  out  of  or  based  upon  the 
agent's  fraud,  imposition,  misrepresentation  and  misconduct.  As 
has  been  stated,  if  the  principal  would  avail  himself  of  the  advan- 
tages of  the  agent's  acts,  he  must  also  assume  the  responsibilities. 
Hence  it  is  a  rule  of  universal  application,  whether  the  principal 
be  disclosed  or  not  at  the  time  of  entering  into  the  contract,  that 
the  principal  is  affected  by,  and  is  subject  to,  every  defense 
which  the  other  party  may  have,  based  upon  such  fraud,  imposi- 
tion, misrepresentation,  concealment  or  other  misconduct  of  the 
agent  as  is,  either  by  the  prior  authorization  or  a  subsequent  rati- 
fication, properly  chargeable  to  the  principal  as  having  been  done 
or  committed  by  the  agent  within  the  scope  of  his  author- 
ity, although  the  principal  himself  may  have  been  entirely 
innocent.* 

» Miller «.  Lea,  35  Md.  396,  6  Am.  15    North    E.    Rep.    459;    Byne   v. 

Rep.  417.  Hatcher,  75  Ga.  289 ;  Elwell  v.  Cham- 

8  Citing  Addison  on  Cont.  1191.  berlin,   31   K    Y.    611;   Mnndorff  u. 

8  Citing  Fish  v.  Kempton,  7  M.  G.  Wickersham,  63  Penn.  St.  87;  Haskit 

&  S.  687.  e-  Elliott,   58  Ind.    493;    Bennett  v. 

*  Frame  v.  William  Penn  Coal  Co.,  Judson,  21  N.  Y.  238;  Law  v.  Grant, 
97  Penn.  St.  309.  37  Wis.  548;  Bowers  v.  Johnson,  18 

•  DuSouchet  «.  Dutcher, — Ind. —  Miss.    169;    Lawrence  v.   Hand,    23 

628 


Cbap.YII.]     LIABILITT  OF  THIRD  PERSON  TO  PRINCIPAL.  §  777. 

8  776.  Third  Person  can  not  dispute  Principal's  Bight— When. 
Where  the  contract  made  by  the  agent  has  been  executed  by  the 
principal,  the  other  party  can  not,  when  called  upon  for  per- 
formance on  his  part,  defeat  the  principal's  right  by  showing 
that  as  between  the  principal  and  the  agent,  the  contract  was 
unauthorized.  Thus  one  who  borrows  money  from  the  princi- 
pal's agent  is  estopped  to  deny  the  agent's  authority  to  lend  it, 
when  called  upon  by  the  principal  for  its  repayment.* 

So  where  a  contract  has  been  made  with  a  subagent  for  the 
principal,  the  party  making  it  can  not  defeat  the  principal's  action 
upon  it  by  showing  that  the  appointment  of  the  subagent  was 
unauthorized.  Having  dealt  with  him  as  having  authority,  he 
is  estopped  to  deny  it.* 

§  777.  Summary  of  Rules.  The  following  summary  of  the 
rules  governing  the  right  of  the  principal  to  sue  upon  contracts 
made  by  his  agent,  is  adapted  from  that  of  Mr.  Evans. 

I.  He  may  take  advantage  of  all  such  contracts,  whether  his 
name  has  been  disclosed  or  not,  except — 

1.  "Where  the  contract  was  in  the  agent's  own  name  and  was 
under  seal. 

2.  Where  the  contract  is  executory  and  involved  considera- 
tions personal  to  the  agent. 

3.  Where  the  other  party,  with  knowledge  of  the  real  prin- 
cipal, elected  to  deal  with  the  agent  exclusively. 

4.  Where  the  agent  has  a  lien  upon  or  special  property  in 
the  subject-matter  of  the  agency,  exceeding  or  equal  to 
the  value. 

n.  This  right  of  the  principal  is  subject  to  the  following  qual- 
ifications : — 

1.  Defenses  founded  upon  the  fraud  of  the  agent  are  equally 
valid  against  the  principal. 

2.  Where  the  agent  has  been  allowed  to  contract  as  princi- 
pal, the  real  principal  takes  the  contract  subject  to  all  the 
equities  and  rights  of  which  the  other  party,  who  has  had 
no  notice  of  the  agency,  might  have  availed  himself  had 
the  agent  been  in  fact  the  principal. 

Miss.  103;  National  Life  Ins  Co.  v.      Mt.  Nat.  Bank,  3  Col.  248.  8.  c.  96 
Minch,  5  Thomp.   «&  Cook  (N.  Y.)      U.  8.  640. 

645.  'Mayer  v.  McLure,  36  Miss.   389, 

>  See  Union  Mining  Co.  v.  Rocky      72  Am.  Dec.  190. 

629 


§  778.  THE    LAW   OF   AGENCY.  [Book    IV, 

8.     Right  to  recover  Money  paid  or  used  hy  Agent. 

§  778.  In  general.  The  question  of  the  principal's  right  to 
recover  money  belonging  to  him  and  paid  out  or  used  by  his 
agent  may  arise  under  two  general  states  of  fact:  {a.)  Where 
the  agent,  in  the  attempted  performance  of  a  legitimate 
and  authorized  act,  has  paid  out  the  money  by  mistake,  or 
under  coercion,  or  without  consideration;  and  (b.)  Where  the 
agent  has,  in  violation  of  his  duty,  paid  out  or  applied  the  money 
of  his  principal  to  the  agent's  own  uses  or  purposes. 

A. 

§  779.  Right  in  Cases  of  first  Class.  The  right  of  the  prin- 
cipal to  recover  money  paid  by  his  agent  to  a  third  person  under 
a  mistake  of  facts ;  or  which  was  obtained  from  the  agent  by 
fraud  or  compulsion ;  or  which  was  extorted  from  him  by  unjust 
and  oppressive  proceedings ;'  or  which  was  deposited  by  him  upon 
an  illegal  wager,  or  an  illegal  contract  not  executed ;  or  whicli 
was  paid  by  him  upon  a  consideration  which  has  failed,  depends 
upon  the  same  rules  which  would  apply  were  the  money  paid 
out  by  the  principal  himself  under  the  like  circumstances,  and 
the  principal  may  recover  it  wherever  he  could  have  recovered 
it,  if  paid  by  him  in  person.* 

B. 

§  780.  Principal's  Right  to  follow  trust  Funds.  The  cases  of 
the  second  class  present  questions  of  greater  difficulty.  When- 
ever the  principal  confides  to  his  agent  money  for  the  accom- 
plishment of  a  particular  object,  or  to  be  appropriated  in  a  speci- 
fied manner,  and  whenever  money  of  the  principal  comes  into 
the  hands  of  the  agent  which  it  is  his  duty  to  pay  over  to  his 
principal  or  to  apply  in  any  other  designated  manner,  the  law 
impresses  upon  that  money,  for  the  benefit  of  the  principal,  a  trust 
for  the  performance  of  the  object  contemplated  which  can  only 
be  satisfied  by  its  devotion  to  that  object,  unless  the  principal 
directs  it  otherwise.  While  the  money  remains  in  the  hands  of 
the  agent,  as   has  heretofore  been  seen,  he  cannot  shake  off  the 

»Holman  v.  Frost,  26  S.  C.  290,  Ancher  v.  Bank  of  England,  2  Doug. 

•Sadler  v.  Evans,  4  Burr.  1984;  687;  Sigourney  v.  Lloyd,  8  B,  &  0. 
Stevenson  e.  Mortimer,  Cowp.  805;      622. 

630 


Ohap.YIL]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  780. 

trust  by  any  manner  or  number  of  alterations  or  changes  in  its 
specific  character,  unless  all  trace  of  it  be  completely  lost,  for  it 
is  well  settled  that  equity  will  follow  the  fund  through  any  num- 
ber of  transmutations  and  preserve  it  for  the  owner  as  long  as 
it  can  be  identified.^  As  was  said  by  Lord  Ellenborough,"  "  it 
makes  no  difference  in  reason  or  law  into  what  other  form,  dif- 
ferent from  the  original,  the  change  may  have  been  made, 
whtther  it  be  into  that  of  promissory  notes  for  the  security  of 
the  money  which  was  produced  by  the  sale  of  the  goods  of  the 
principal,  as  in  Scott  v.  Surman,'  or  into  other  merchandise,  as 
in  Whitecomb  v.  Jacob ;  *  for  the  product  of  or  substitute  for 
the  original  thing  still  follows  the  nature  of  the  thing  itself,  as 
long  as  it  can  be  ascertained  to  be  such,  and  the  right  only  ceases 
when  the  means  of  ascertainment  fail."  Neither  does  it  matter 
in  whose  name  the  legal  title  stands.  If  the  money  be  converted 
into  a  chose  in  action,  the  legal  right  to  it  may  have  changed, 
but  equity  regards  the  beneficial  ownership. 

And  this  trust  is  not  confined  to  the  period  during  which  the 
money  remains  in  the  possession  of  the  agent,  but  follows  the 
fund  into  the  hands  of  whomsoever  it  may  come,  until  it  reaches 
the  possession  of  one  who  has  an  equity  superior  to  that  of  the 
principal.  Such  an  one  is  a  bona  fide  holder  for  value  without 
notice  of  the  trust.  For  if  the  fund  comes  into  the  hands  of  a 
third  person  who  receives  it  without  consideration  as  a  gift,  or 
without  parting  with  value,  or  with  actual  or  constructive  notice 
of  the  trust,  the  principal  may  recover  it  from  such  third  person 
as  well 'as  from  the  agent.* 

It  is  not  necessary  that  the  third  person  into  whose  hands  the 
trust  fund  may  be  traced,  should  be  an  active  wrong  doer,  or 
that  he  should  have  attempted  to  defeat  the  trust.     It  is  enough 

'Farmers'  «&;  Mechanics'  Bank®.  National  Bank.  ««pra;  National  Bank 

King,  57  Penn.  St.  202,  98  Am.  Dec.  «.   Insurance   Co.,   supra;  Jaudon  v. 

215;  "Van  Alen  t).  American  National  City  Bank,  8  Blatchf.  (U.   S.    C.    C.) 

Bank,  52  N.  Y.  1;  National  Bank  v.  430;  Fifth  National  Bank  v.  Village 

Insurance  Co.,  104  U.  8.  54.  of  Hyde  Park,  101  111.  595,    40  Am. 

'In  Taylor  «.  Plumer,  8  M.    «&  S.  Rep.  218;  Riebl  v.  Evansville  Foun- 

662.  dry  Assn,  104  Ind.    70,   3  North  E. 

•Willes,  400.  Rep.  633;  Baker  v.  New  York  Nat. 

« 1  Salk.  161.  Bank,  100  N.  Y.   31,   53  Am.   Rep. 

»  Farmers'   &  Mechanics'  Bank  v.  150. 
King,  supra;  Van  Alen  v.  American 

631 


§  781.  THE   LAW   OF   AGENOT.  [Book  IV. 

that  he  is  not  a  bona  fide  holder  for  value  without  notice.*  So 
it  is  not  necessary  that  such  third  person  should  have  had  notice 
of  the  trust  character  of  the  fund  at  the  time  it  carae  into  his 
hands.  If  he  receive  notice  in  time  to  protect  himself,  it  is  suf- 
ficient.* Neither  is  it  necessary  that  he  should  have  had  any 
notice  of  its  trust  character  at  all  up  to  the  time  that  the  princi- 
pal demands  it  of  him,  if  he  acquired  it  without  consideration.* 

§  781.  Same  Subject— Illustrations.  These  principles  have 
received  illustration  in  a  number  of  cases.  Thus,  in  a  leading 
case  in  the  Supreme  Court  of  the  United  States,  where  the  gen- 
eral agent  of  an  insurance  company,  whose  business  it  was  to 
collect  and  remit  to  it  premiums  accruing  within  the  territory 
assigned  to  him,  deposited  such  premiums  from  time  to  time  in 
a  bank  to  his  credit  as  such  "  general  agent,"  from  which  he 
remitted  to  his  principal  by  check  twice  a  month,  and  the  bank 
knew  that  he  was  such  agent  and  that  the  fund  so  accumulated 
was  made  up  chiefly  of  premiums  due  to  the  company,  it  was 
held  that  the  bank  was  chargeable  with  notice  of  the  company's 
rights  therein,  although  the  agent  had  also  deposited  some  other 
money  therein,  and  that  the  company  might,  in  equity,  enforce 
its  claim  thereon  against  the  bank  which  claimed  a  lien  upon  the 
deposit  for  a  debt  due  to  it  by  the  agent  in  his  individual 
•capacity. 

Said  the  court :  "A  bank  account,  it  is  true,  even  when  it  is  a 
trust  fund  and  designated  as  such  by  being  kept  in  the  name  of 
the  depositor  as  trustee,  differs  from  other  trust  funds  which  are 
permanently  invested  in  the  name  of  trustees  for  the  sake  of 
beinty  held  as  such  ;  for  a  bank  account  is  made  to  be  checked 
ao-ainst,  and  represents  a  series  of  current  transactions.  The  con- 
tract between  the  bank  and  the  depositor  is,  that  the  former  will 
pay  according  to  the  checks  of  the  latter,  and  when  drawn  in 
proper  form,  the  bank  is  bound  to  presume  that  the  trustee  is  in 
the  course  of  lawfully  performing  his  duty,  and  to  honor  them 
accordingly.  But  when  against  a  bank  account,  designated  as 
one  kept  by  the  depositor  in  a  fiduciary  character,  the  bank  seeks 
to  assert  its  lien  as  a  banker  for  a  personal  obligation  of  the  de- 
positor, known  to  have  been  contracted  for  his  private  benefit,  it 

•  Fifth Nat.Bank».HydePark,«wpra.         'Fifth  Nat.   Bank  t».   Hyde  Park, 
»  Farmers*  &  Mechanics'  Bank  ».      $upra. 
King,  supra. 

632 


Chap. VII.]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  7S1. 

must  be  held  as  having  notice  that  the  fund  represented  by  the 
account  is  not  the  individual  property  of  the  depositor,  if  it  is 
shown  to  consist,  in  whole  or  in  part,  of  funds  held  by  him  in  a 
trust  relation."  * 

So  in  a  recent  case  in  New  York*  it  appeared  that  a  firm  of 
commission  merchants,  who  were  insolvent,  liad  deposited  in  a 
bank  in  their  own  name  with  the  word  "agents"  added,  the 
proceeds  of  certain  sales  made  by  them  for  various  principals. 
The  deposit  was  made  in  this  form  for  the  purpose  of  protecting 
their  principals,  which  purpose  was  known  to  the  bank  at  the 
time.  Upon  this  deposit,  the  agents  drew  a  check  in  favor  of 
the  plaintiff,  one  of  the  principals,  in  settlement  of  a  balance  due 
him  on  sales  made  by  them.  In  an  action  brought  by  the  plain- 
tiff on  the  check,  the  bank  sought,  with  the  consent  of  the  agents, 
to  charge  against  this  deposit  an  individual  debt  due  from  the 
agents  to  the  bank,  but  the  court  held  that  this  could  not  be 
done.  "  It  is  clear  upon  the  facts,"  said  Andrews,  J.,  "  that  the 
fund  represented  by  the  deposit  account  was  a  trust  fund,  and 
that  the  bank  had  no  right  to  charge  against  it  the  individual 
debt  of  Wilson  &  Bro.  (the  agents.)  The  bank  having  notice  of 
the  character  of  the  fund,  could  not  appropriate  it  to  the  debt  of 
Wilson  &  Bro.,  even  with  their  consent,  to  the  prejudice  of  the 
<sestui  que  trusts.  The  supposed  difficulty  in  maintaining  the 
action  arising  out  of  the  fact  that  the  money  deposited  was  not 
the  specific  proceeds  of  the  plaintiff's  goods,  is  answered  by  the 
<jase  of  Yan  Alen  v.  American  National  Bank.'  Conceding 
that  Wilson  &  Bro.  used  the  specific  proceeds  for  their  own  pur- 
poses, and  their  identity  was  lost,  yet  when  they  made  up  the 
amounts  so  used,  and  deposited  them  in  the  trust  account,  the 
amounts  so  deposited  were  impressed  with  the  trust  in  favor  of 
the  principals,  and  became  substituted  for  the  original  proceeds 
and  subject  to  the  same  equities."  The  objection  that  the  de- 
posit account  represented  not  only  the  proceeds  of  the  plaintiffs' 
goods,  but  also  the  proceeds  of  goods  of  other  persons,  and  that 
the  other  parties  interested  are  not  before  the  court  and  must  be 
brought  in  in  order  to  have  a  complete  determination  of  the  con- 
troversy, was  held  to   be  not  well   taken.     The   objection   for 

'  National  Bank  ».  Insurance  Co.,  *  Baker  v.  New  York  Nat.  Bank, 

104  U.  S.  54.  100  N.  Y.  31,  53  Am.  Rep.  150. 

8  53  N.  Y.  1. 

633 


§T81. 


THE    LAW    OF    AGENCY.  [Book  IV. 


defect  of  parties  was  not  taken  in  the  answer,  and  moreover,  it 
did  not  appear  that  there  were  any  unsettled  accounts  of  Wilson 
&  Bro.  with  any  other  person  or  persons  for  whom  they  were 
agents.  The  check  operated  as  a  setting  apart  of  so  much  of  the 
deposit  account  to  satisfy  the  plaintiffs'  claim.  It  did  not  appear 
that  the  plaintiffs  were  not  equitably  entitled  to  this  amount 
out  of  the  fund,  or  that  there  was  any  conflict  of  interest  between 
the  plaintiffs  and  any  other  person  or  persons  for  whom  Wilson 
&  Bro.  acted  as  consignees.  The  presumption,  in  the  absence  of 
any  contrary  indication,  was  that  the  fund  was  adequate  to  pro- 
tect all  interests,  and  that  Wilson  &  Bro.  appropriated  to  the 
plaintiffs  only  their  just  share.    • 

But  where  a  village  treasurer,  who  stated  that  he  wished  to 
use  it  to  pay  warrants  drawn  in  anticipation  of  the  collection  of 
taxes,  borrowed  at  a  bank,  upon  his  own  note  secured  by  his  own 
collaterals,  a  sum  of  money  which  was  placed  to  the  credit  of  his 
account  as  treasurer,  and  most  of  it  drawn  out  in  payment  of 
proper  warrants;  and  afterwards,  when  the  tax  money  came  in, 
the  treasurer  drew  a  check  upon  his  account  as  treasurer  in  pay- 
ment of  the  note  which  was  thereupon  surrendered  to  him  with 
the  collaterals,  it  was  held  by  the  Supreme  Court  of  Illinois  that 
the  village  could  not  recover  the  amount  of  the  check  from  the 
bank,  the  treasurer  having  become  a  defaulter.  In  this  case, 
although  the  public  money  was  thus  appropriated  to  the  payment 
of  a  debt  private  upon  its  face,  yet  the  bank  assumed  and  had 
reason  to  assume,  that  it  was  being  used  to  pay  a  debt  which  was 
in  reality  a  proper  charge  against  the  village.' 

Ao-ain  where  an  agent  had  deposited  money  of  his  principal  in 
a  bank,  in  his  own  name,  where  it  was  attached  by  a  creditor  of 
the  agent,  but  the  principal  gave  immediate  notice  of  his  rights 
in  the  fund,  it  was  held  that  the  attaching  creditor  stood  in  no 
better  situation  than  the  agent,  and  could  recover  only  what  the 
agent  could.  Said  the  court :  "  It  is  undeniable  that  equity 
will  follow  a  fund  through  any  number  of  transmutations  and 
preserve  it  for  the  owner  so  long  as  it  can  be  identified.  And  it 
does  not  matter  in  whose  name  the  legal  right  stands.  If  money 
has  been  converted  by  a  trustee  or  agent  into  a  chose  in  action, 
the  legal  right  to  it  may  have  been  changed,  but  equity  regards 

'  Fifth  National  Bank©.  Village  of  Hyde  Park,  101  111.  595,  40  Am.  Rep.  218. 

634 


Ciiap.YlI.]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL. 


§781. 


the  beneficial  ownership.  It  is  conceded,  for  the  cases  abun- 
dantly show  it,  that  when  the  bank  received  the  deposits,  it 
thereby  became  a  debtor  to  the  depositor.  The  debt  might  have 
been  paid  in  answer  to  his  checks,  and  thus  the  liability  have 
been  extinguished,  in  the  absence  of  interference  by  his  principals 
to  whom  the  money  belonged.  But  surely  it  cannot  be  main- 
tained that  when  the  principals  asserted  their  right  to  the  money 
before  its  repayment  and  gave  notice  to  the  bank  of  their  owner- 
ship and  of  their  unwillingness  that  the  money  should  be  paid 
to  their  agent,  his  right  to  reclaim  it  had  not  ceased.  A  bank 
can  be  in  no  better  situation  than  any  other  debtor."  * 

So  where  a  bookkeeper  and  salesman  embezzled  the  funds  of 
his  principal  to  a  large  amount,  and,  with  the  money,  bought 
real  estate  which  he  caused  to  be  conveyed  to  his  wife,  and  built 
a  house  thereon,  the  wife  knowing  the  source  from  which  her 
husband  obtained  the  money,  it  was  held  that  the  principal  was 
entitled  in  equity  to  recover  the  property  so  purchased  with  his 
funds.* 


'  Farmers'  &  Mechanics'  Bank  «. 
King,  57  Penn.  St.  202,  98  Am.  Dec. 
215. 

»  Riehlc  Evansville  Foundry  Assn, 
104  Ind.  70,  3  North  E.  Rep.  633. 

In  National  Bank  «.  Ins.  Co.,  104 
U.  8.  54,  Mr.  Justice  Matthews 
gives  the  following  review  of  the 
cases:  "  In  the  case  of  Pannell  v. 
Hurley,  2  Col.  C.  C.  241,  the  depos- 
itor, having  two  accounts,  one  in 
trust,  the  other  in  his  own  name, 
drew  his  check  as  trustee  to  pay  his 
private  debt  to  the  banker.  The  Vice 
Chancellor,  Knight  Bruce,  put  the 
case  thus:  'Money  is  due  from  A  to 
B  in  trust  for  C.  B  is  indebted  to  A 
on  his  own  account.  A,  with 
knowledge  of  the  trust,  concurs  with 
B  in  selling  one  debt  against  the 
other,  which  is  done  without  C's  con- 
sent. Can  it  be  a  question  in  equity 
whether  such  a  transaction  stand? ' 

In  Bodenham  v.  Hoskyns,  2  DeG., 
M.  &  G.  903,  the  principle  was  stated 
to  be  one,  acted  upon  daily  by  courts 


of  equity,  'according  to  which  a  per- 
son who  knows  another  to  have  in 
his  hands  or  under  his  control  mon- 
eys belonging  to  a  third  person  can- 
not deal  with  those  moneys  for  his 
own  private  benefit,  when  the  effect 
of  that  transaction  is  the  commission 
of  a  fraud  upon  the  owner.' 

In  the  case  of  Ex  parte  Kingston, 
In  re  Gross,  Law  Rep.  6  Ch.  App, 
633,  a  county  treasurer  had  two  bank 
accounts,  one  headed  '  Police  Ac- 
count.' Some  of  the  items  to  his 
credit  in  this  account  could  be  traced 
as  having  come  from  county  funds, 
but  most  of  them  could  not.  The 
checks  which  he  drew  upon  it  were 
all  headed  'Police  Account,' and  ap- 
peared to  have  been  drawn  only  for 
county  purposes.  For  the  purposes 
of  interest,  the  bank  treated  the  ac- 
counts as  one  account,  and  the  interest 
on  the  balance  in  his  favor  was  carried 
to  the  credit  of  his  private  account. 
The  manager  of  the  bank  knew  he 
was  county  treasurer,  and  understood 


635 


§781. 


THE    LAW    OF    AGENCT. 


[Book  TV. 


But  where  an  agent  collected  money  belonging  to  his  princi- 
pal, and  without  authority  loaned  it  to  certain  persons  to  whom 
he  was  indebted  personally  in  an  amount  larger  than  the  sum 


that  he  had  been  in  the  habit  of  pay- 
ing county  moneys  into  the  bank. 
He  absconded,  his  private  account 
being  overdrawn,  and  the  police  ac- 
count being  in  credit.  It  was  held 
that  the  bank  was  not  entitled  to  set- 
off the  one  account  against  the  other, 
but  that  the  county  magistrates  could 
recover  the  balance  standing  to  the 
credit  of  the  police  account.  Sir  W. 
M.  James,  L.  J.,  said:  '  In  my  mind 
this  case  is  infinitely  stronger  than 
those  referred  to  during  the  argu- 
ment, in  which  a  similar  claim  on  the 
part  of  bankers  was  disallowed ;  for 
in  those  cases  the  bankers  relied  on 
cheques  drawn  by  the  customers;  and 
if  a  banker  receives  from  a  custom- 
er, holding  a  trust  account,  a  cheque 
drawn  on  that  account,  he  is  not 
in  general  bound  to  inquire  whether 
that  cheque  was  properly  drawn. 
Here  the  customer  has  drawn  no 
cheque,  and  the  bankers  are  seeking 
to  set  off  the  balance  on  his  private 
account  against  the  balance  in  his 
favor  on  what  they  knew  to  be  a  trust 
account.'    •    ♦    * 

In  the  case  of  Pennell  v.  Deffell,  4 
DeG.,  M.  and  G.  373,  388,  Lord  Jus- 
tice Turner  said:  "  It  is,  I  appre- 
hend, an  undoubted  principle  of  this 
court,  that  as  between  cestui  que  trust 
and  trustee  and  all  parties  claiming 
under  the  trustee,  otherwise  than  by 
purchase  for  valuable  consideration 
without  notice,  all  property  belonging 
to  a  trust,  however  much  it  may  be 
changed  or  altered  in  its  nature  or 
character,  and  all  the  fruit  of  such 
properly,  whether  in  its  original  or  in 
its  altered  state,  continues  to  be  sub- 
ject to  or  affected  by  the  trust.*  In 
the  same  case  Lord  Justice  Knight 
Bruce  said,  (p.  388):    '  When  a  trus- 


tee pays  trust  money  into  a  bank  to 
his  credit,  the  account  being  a  simple 
account  with  himself,  not  marked  or 
distinguished  in  any  other  manner, 
the  debt  thus  constituted  from  the 
bank  to  him  is  one  which,  as  long  aa 
it  remains  due,  belongs  specifically 
to  the  trust  as  much  and  as  effectually 
as  the  money  so  paid  would  have 
done,  had  it  specifically  been  placed 
by  the  trustee  in  a  particular  reposi- 
tory and  so  remained;  that  is  to  say, 
if  the  specific  debt  shall  be  claimed 
on  behalf  of  the  cestuis  que  trustent, 
it  must  be  deemed  specifically  theirs, 
as  between  the  trustee  and  his  execu- 
tors, and  the  general  creditors  after 
his  death  on  one  hand,  and  the  trust 
on  the  other.'  He  added,  (p.  384): 
'  This  state  of  things  would  not,  I 
apprehend,  be  varied  by  the  circum- 
stance of  the  bank  holding  also 
for  the  trustee,  or  owing  also  to 
him,  money  in  every  sense  his  own.' 
Vice-Chancellor  Sir  W.  Pagk 
Wood,  in  Frith  v.  Cartland,  2  Hem. 
and  M.  417,  420,  said  that  Pennell  «. 
Deffell  rested  upon  and  illustrated 
two  established  doctrines.  One  was 
that  '  so  long  as  the  trust  property 
can  be  traced  and  followed  into  other 
property  into  which  it  has  been  con- 
verted, that  remains  subject  to  the 
trust;'  the  second  is,  'that  if  a  man 
mixes  trust  funds  with  his  own,  the 
whole  will  be  treated  as  the  trust 
property,  except  so  far  as  he  may  be 
able  to  distinguish  what  is  his  own.' 
The  case  of  Pennell  v.  Deffell,  supra, 
was  the  subject  of  comment  by  Fry, 
J.,  in  In  re  West  of  England  and 
South  Wales  District  Bank,  Ex  parte. 
Dale  &  Co.,  11  Ch.  D.  773,  32  Eng. 
Rep.  810.  Strongly  approving  the 
decision  in  principle,  he  felt  bound 


636 


Cbap.YII.]      LIABILITY  OF  THIRD  PEKSON  TO  PKINOIPAL. 


§781. 


loaned,  without  their  having  any  notice  that  it  was  not  his,  it  was 
held  that  they  had  a  legal  right  to  appropriate  it  to  the  payment 
of  the  agent's  debt  to  them,  and  that  the  principal  could  not 


nevertheless,  by  what  he  considered 
the  weight  of  authority,  not  to  apply 
it,  in  the  circumstances  of  the  case 
before  him,  where  there  had  been  a 
mingling  of  trust  money  with  indi- 
vidual money.  He  said  however: 
'  Does  it  make  any  diiference  that,  in- 
stead of  trustee  and  cestui  gus  trust, 
it  is  a  case  of  fiduciary  relationship? 
"What  is  a  fiduciary  relaJionship?  It 
is  one  in  which,  if  a  wrong  arise, 
the  same  remedy  exists  against  the 
wrong-doer  on  behalf  of  the  principal 
as  would  exist  against  a  trustee  on 
behalf  of  the  cestui  que  trust. 

If  that  be  a  just  description  of  the 
relationship,  it  would  follow  that 
wherever  fiduciary  relationship  exists, 
and  money  coming  from  the  trust 
lies  in  the  hands  of  persons  standing 
in  that  relationship,  it  can  be  followed 
and  separated  from  any  money  of 
their  own.' 

The  whole  subject  of  this  discus- 
sion was  very  elaborately  and  with 
much  learning  reviewed  by  the  Court 
of  A-ppeal  in  England,  in  the  very 
recent  case  of  KnatchbuU  v.  Hallett, 
Jn  re  Halletfs  Estute,  13  Ch.  D.  696. 
(86  Eng.  Rep.  779).  It  was  there  de- 
cided that  if  money  held  by  a  person 
in  a  fiduciary  character,  though  not 
as  trustee,  has  been  paid  by  him  to 
his  account  at  his  banker's,  the  person 
for  whom  he  held  the  money  can  fol- 
low it,  and  has  a  charge  on  the  bal- 
ance in  the  banker's  hands,  although 
it  was  mixed  with  his  own  moneys; 
and  in  that  particular  the  court  over- 
ruled the  opinion  in  Ex  parte  Dale 
and  Co.,  supra.  It  was  also  held 
that  the  rule  in  Clayton's  Case,  1  Mer. 
673,  attributing  the  first  drawings  out 
to  the  first  payments  in,  does  not 
Rjpply ;  and  that  the  drawer  mu8t  be 


taken  to  have  drawn  out  his  own 
money  in    preference    to    the    trust 
money,  and  in  that  particular  Pen- 
nell  V.  Deflell  was  not  followed.   The 
Master   of    the    Rolls,     Sir    George 
Jessel,  showed  that  the  modern  doc- 
trine of  equity,  as  regards  property 
disposed  of  by  persons  in  a  fiduciary 
position,  is  that,  whether  the  disposi- 
tion of  it  be  rightful  or  wrongful, 
the  beneficial  owner  is  entitled  to  the 
proceeds,   whatever  be  their    form, 
provided  only  he  can  identify  them. 
If  they  cannot  be  identified  by  reason 
of  the   trust  money   being  mingled 
with   that  of  the  trustee,    then   the 
cestui  que  trust  is  entitled  to  a  charge 
upon  the  new  investment  to  the  ex- 
tent of  the  trust  money  traceable  into 
it;  that  there  is  no  distinction  between 
an  express  trustee  and  an  agent,  or 
bailee,  or  collector  of  rents  or  any 
body  else,  in  a  fiduciary  position,  and 
that  there   is  no  difference  between 
investments  in  the  purchase  of  lands, 
or  chattels,    or  bonds,    or  loans,  or 
moneys  deposited  in  a  bank  account. 
He    adopts    the    principle    of    Lord 
Ellenborough's  statement  in  Taylor 
V.  Plumer,  3  M.  &  S.    502,  that    *  it 
makes  no  difference,  in  reason  or  law, 
into  what  other  form  different  from 
the  original,   the  change   may  have 
been  made,  whether  it  be  into  that  of 
promissory  notes  for  the  security  of 
money  which  was  produced  by  the 
sale  of  the  goods  of  the  principal,  as 
in  Scott  V.  Surman,   (Willes  400)  or 
into  other  merchandise,  as  in  White- 
comb  c.  Jacob,   1  Salk.    161;  for  the 
product  or  substitute  for  the  original 
thing  still  follows  the  nature  of  the 
thing  itself,  as  long  as  it  can  be  ascer- 
tained to  be  such,  and  the  right  only 
ceases  when  the  means  of  ascertain- 


637 


ft  732.  THE    LAW    OF    AGENCY.  [Book  IV. 

recover  it  of  them,  even  after  notice  that  it  did  not  belong  to  the 
agent.*     "The   only  question,"  said   Wilde,   J.,  "therefore   is, 
whether  after  notice  the  defendants  could  lawfully  detain  the 
money ;  and  we  are  of  opinion  that  they  could.     As  Parkhurst 
(the  agent)  was  indebted  to  them  in  a  sum  exceeding  the  loan, 
they  had  a  legal  right  of  set-off  as  against  Parkhurst,  of  which 
they  could  not  be  deprived  by  the  intervention  of  the  plaintiffs' 
claim  ;  and  however  disingenuous  the  defendants'  conduct  maybe 
considered  in  relation  to  Parkhurst,  they  had  a  legal  right  thus  to 
secure  their  own  debt.     Their  refusal  to  repay  the  loan  according 
to  agreement  was  a  breach  of   promise ;  but  against  this  the  de- 
fendants could  set  off  a  breach  of  promise  by  Parkhurst,  and  this 
set-off  is  allowed  by  law.     The  defendants,  therefore,  had  a  legal 
right  to  appropriate  the  money  lent,  to  the  payment  of  their  own 
debt.     This  distinguishes  the  present  case  from  that  of  Mason  v. 
Waite,  where  the  money  came  into  the  defendant's  hands  unlaw- 
fully, and  he  had  no  legal  or  equitable  right  to  retain  it ;  and 
also  from  that  of  Clarke  v.  Shee,'     But  the  law  as  laid  down  by 
Lord  Mansfield,  in  the  latter  case,  is  decisive  against  the  plain- 
tiff's claim.     '  Where  money  or  notes,'  it  is  said,  'are  paid  lona 
Jide,  and  upon   a  valuable   consideration,  they  never   shall   be 
brought  back  by  the  true  owner  ;  but  where  they  come  mala  fide 
into  a  person's  hands,  they  are  in  the  nature  of  specific  property, 
and  if  their  identity  can  be  traced  and  ascertained,  the  party  has 
a  right  to  recover.' " 

8  782.  Same  Subject— Further  Illustrations— Restrictive  In- 
dorsements. This  question  frequently  arises  in  the  case  of  those 
who  have  received  from  a  bank,  or  other  agent,  negotiable  paper 
which  the  principal  has  entrusted  to  the  agent  for  collection. 
Where  such  paper,  bearing  no  indication  upon  its  face  of  the 

ment  fail.'    But  he  dissents  from  the  mark  must  be  taken  as  subject  to  the 

application  of  the  rule  made  by  Lord  application  of  this  rule.     The  Court 

Ellenborough,    when    the     latter  of   Appeals  had  previously  applied 

added,  '  which  is  the  case  when  the  the  very  rule  as  here  stated   in  the 

subject  is  turned  into  money  and  con-  case  of  Birt  v.   Burt,   reported  in  a 

founded  in   a   general  mass  of   the  note  to  Ex  parte  Dale  and  Co.,   11 

same    description;'    for    equity  wUl  Ch.  D.  773,  32  Eng.  Rep.  812  n." 

follow  the  money  even  if  put  into  a  *  Lime  Rock  Bank  v.  Plimpton,  17 

bag  or  an  undistinguishable  mass,  by  Pick.  (Mass.)  159,  28  Am.  Dec.  286. 

taking  out  the  same  quantity.     And  •  Cowp.  200. 
the  doctrine  that  money  has  no  ear- 

638 


Chap.YII.]     LIABILITY  OF  THIKl)  PERSON  TO  PKINCirAL.  §  784. 

trust  impressed  upon  it  in  the  agent's  hands,  comes  into  the  hands 
of  a  third  person  who,  in  good  faith,  parts  with  vahie  for  it,  in 
reliance  upon  the  agent's  apparent  title,  such  third  person  will,  in 
accordance  with  well  settled  rules,  be  protected.'  But  where  the 
paper  bears,  upon  its  face,  evidence  that  the  agent  holds  it  for  a 
special  purpose  merely,  as  if  it  be  indorsed  "  for  collection,"  •  or 
"for  collection  for  account  of"  the  principal,'  such  an  indorse- 
ment is  notice  to  all  who  may  take  the  paper  of  the  restricted 
nature  of  the  agent's  title,  and  the  principal  may  recover  the 
paper  or  its  proceeds  from  one  who  claims  an  adverse  title  through 
the  agent.* 

§  783.  Right  to  recover  Money  wrongfully  paid  by  Agent. 
So  payments  received  from  an  agent  by  one  knowing  the  agent 
to  be  unauthorized  to  make  them,  may  be  recovered  by  the  prin- 
cipal as  money  wrongfully  had  and  received.'  A  fortiori  may 
the  principal  recover  money  illegally  exacted,  or  compulsorily 
obtained,  by  such  third  person,  from  the  agent.* 

3.  Right  to  recover  Property. 
§  784.  In  general— Principal  may  recover  Property  -WTongfully 
applied  or  disposed  of  by  Agent.  Analogous  to  the  question 
considered  under  the  last  subdivision,  is  that  of  the  right  of  the 
principal  to  recover  property,  which  has  been  applied  or  disposed 
of  by  his  agent,  without  the  authority  or  assent  of  the  principal. 
The  general  rule  is,  that  a  purchaser  of  property  takes  only  such 
title  as  his  seller  has,  and  is  authorized  to  transfer ;  that  he  acquires 
precisely  such  interest  as  the  seller  has,  and  no  greater  or  other. 
Nemo  plus  juris  ad  allinn  transferre  potest  quam  ipse  hdbet,  is 
the  maxim  of  the  law.  If  the  agent  has  no  authority  to  trans- 
fer the  title,  he  can,  as  a  rule,  confer  none  upon  his  transferee. 

»  Hackett  ».  Reynolds,  114  Penn.  Farmers'  Bank,  22  Md.  148;  Blaine  v. 

St.  328.  Bourne,  11  R.  I.   119,  23  Am.   Rep. 

«  Sweeny  e.  Easter,  1  Wall.  (U.  S.)  429;  Sigourney  v.   Lloyd,  8  B.  &  C. 

166.  622;  Treuttel  v.  Barandon,  8  Taunt. 

»  First  Nat.  Bk  of  Crown  Point  v.  100. 

First  Nat.   Bk  of  Richmond,  76  Ind.  *  See  cases  cited  in  notes  2  and  8 

661.  40  Am.  Rep.  261;  Sherman  Bank  supra. 

t.  Weiss,  67  Tex,  331,  60  Am.   Rep.  «  Demarest  v,  Barbadoes,  40  N.  J. 

29;  First  Nat.  Bk  v.  Bank  of  Monroe.  L.  604. 

33  Fed.  Rep.  408;  In  re  Armstrong.  •  Holman  ©.  Frost,  26  S.  Car.  290. 
S3   Fed.  Rep.    405;    Cecil    Bank    v. 

039 


§  785.  THE    LAW    OF    AGENCY.  [Book  IV. 

Wherever,  therefore,  the  agent  has,  without  the  authority  of  his 
principal,  sold,  assigned,  transferred  or  disposed  of  the  princi- 
pal's property  to  a  third  person,  the  principal  may,  by  appropri- 
ate action,  recover  either  the  property  itself,  or  its  value,  from 
such  third  person,  if  he  refuses  to  recognize  the  rights  of  the 
principal  therein.* 

This  rule  is,  however,  subject  to  certain  exceptions  to  be  here- 
after noticed,'  founded  upon  the  principle  that  where  one  of  two 
innocent  persons  must  suffer,  the  loss  must  fall  upon  that  one 
whose  act  enabled  the  loss  to  be  incurred. 

§  785.  Principal's  Title  can  not  bo  divested  except  by  his 
Consent  or  voluntary  Act.  It  is  a  general  principle  that  no  man 
can  be  divested  of  his  property,  without  his  own  consent  or  vol- 
untary act.*  Hence  whoever  claims  to  have  acquired  the  title  to 
goods  of  the  principal,  through  some  dealing  with  his  alleged 
agent,  must  be  prepared  to  show,  not  only  that  the  agency  existed, 
but  that  the  agent  had  authority  so  to  transfer  the  property. 
Without  the  co-existence  of  both  of  these  elements,  the  title  must 
fail.  The  question  of  authority  here  is  the  same  as  in  other 
cases  which  have  been  considered.  The  act  must  be  within  the 
scope  of  the  authority  which  the  principal  has  held  the  agent 
out  to  the  world  as  possessing. 

This  rule  of  apparent  authority,  is,  as  has  been  seen,  one 
intended  for  the  protection  of  innocent  parties  who  have  acquired 
rights,  while  relying  thereon  in  good  faith,  which  would  be  imper- 
illed if  the  principal  were  to  be  permitted  to  assert  that  the  real 
authority  was  less  than  he  had  caused  or  permitted  it  to  appear. 
When  no  such  rights  exist,  there  is,  therefore,  nothing  to  prevent 
the  principal  from  asserting  the  actual  fact. 

"  Two  things,"  says  Judge  Allen,  "  must  concur  to  create  an 
estoppel  by  which  an  owner  may  be  deprived  of  his  property,  by 
the  act  of  a  third  person,  without  his  assent :  1.  The  owner  must 

I  Boisblanc's    Succession,    32    La.  *  See  §§  786,  787,  post. 

Ann.  109;  Manning  v.  Keenan,  73  N.  »  Barker  v.  Dinsraore,  72  Penn.  St. 

Y.  45;  Meiggs  v.  Meiggs,  15  Hun  (N.  427;  Saltus  v.  Everett,  22  Wend.  (N. 

Y.)  453;  Loomiso.  Barker,  69  111.  360;  Y.)  366,  32  Am.  Dec.    541;  Quinn  v. 

Bert  hoi.    v.    Quinlan,    68    111.    207;  Davis,  78  Penn.  St.  15;  McMahon  v. 

Thompson  v.  Barnum;  49  Iowa,  392;  Sloan,  12  Penn.  St.  229,  51  Am.  Dea 

McGoldrick    v.    Willi  ts,    52    N.    Y.  602. 
612;  Bercich  v.  Marye,  9  Nev.  312. 

640 


Chap.YII.]     LIABILTTT  OF  THIRD  PERSON  TO  PRINCIPAL.  §  780. 

clothe  the  person  assuming  to  dispose  of  the  property  with  tiie 
apparent  title  to,  or  authority  to  dispose  of  it ;  and  2.  The  per- 
son alleging  the  estoppel  must  have  acted  and  parted  with  value, 
upon  the  faith  of  such  apparent  ownership  or  authority,  so  that 
he  will  be  the  loser  if  the  appearances  to  which  he  trusted  are 
not  real."  ' 

8  786.  When  Possession  is  Evidence  of  Authority.  As  a 
general  rule  the  mere  possession  by  the  agent  of  his  principal's 
property,  is  not  sufficient  evidence  of  authority  in  the  agent  to 
dispose  of  it.'  Such  possession  is  as  consistent  with  any  one  of  a 
variety  of  purposes,  as  that  the  agent  should  sell  or  dispose  of  it. 

Thus  the  property  may  be  in  the  agent's  possession  for  safe 
keeping,  or  for  transportation,  or  for  repair,  or  it  may  have  been 
borrowed  or  hired  by  the  agent  for  some  purpose  of  his  own,  or 
the  possession  may  have  been  tortiously  acquired  by  the  agent  in 
violation  of  his  duty  to  his  principal ;  but  in  none  of  these  cases, 
as  a  rule,  could  the  agent  transfer  any  title  to  the  property,  as 
against  the  true  owner,  even  to  a  hona  fide  purchaser.'  As  has 
been  stated  in  a  previous  section,  Nemo  dat  quod  non  habet.  To 
this  rule,  however,  there  are  two  well  recognized  exceptions. 

One  relates  to  the  case  in  which  the  property  in  the  agent's 
possession  consists  of  money  or  of  negotiable  paper.  The  other 
to  the  case  in  which  the  principal  entrusts  the  possession  of  his 
goods  to  one  whose  business  it  is  to  sell  similar  property  as  the 
agent  of  the  owners. 

The  first  exception  depends  upon  principles  of  public  policy 
and  the  necessities  of  commerce.  Money  itself  bears  no  ear- 
mark of  peculiar  ownership,  and  its  primary  purpose  is  to  pass 
from  hand  to  hand,  as  the  medium  of  exchange,  without  other  evi- 
dence of  its  title,  as  against  those  who  receive  it  in  good  faith  for 
valuable  consideration  in  the  usual  course  of  business,  than  its  mere 
possession.  And  so  in  regard  to  negotiable  paper.  It  is  intended, 
so  far  as  this  is  possible,  to  represent  money,  and,  like  it,  to  be  a 
means  of  commercial  intercourse  unfettered  by  any  qualifications 
or  conditions  not  appearing  on  its  face.     When  payable  to  bearer, 

» In  Barnard  v.  Campbell,  55  N.  Y.  46    N.   T.   335,    7    Am.    Rep.    341. 

456,  14  Am.  Rep.  289.  •  The  borrower    of    a  chattel  caa 

»Covill  ».  Hill,  4  Denio  (N.Y.)323;  confer  no  title    against  the    lender. 

Ballard©.  Burgett,  40  N.  Y.  314;  Mc-  McMahon  v.  Sloan,  13  Penn.  8L  229» 

Neil     «.     Tenth      National      Bank,  51  Am.  Dec.  603. 

41  641 


§  786.  THE   LAW    OF    AGENCY.  [Book  lY. 

or  endorsed  in  blank,  it  passes  by  mere  delivery,  and  it  is  a  well 
settled  principle  of  commercial  law  that  he  who  takes  such  paper, 
in  good  faith,  before  dishonor  and  for  a  valuable  consideration, 
shall  not  be  affected  by  defects  in  the  title  of  him  from  whom  it 
was  so  obtained,  of  which  the  taker  had  no  notice.*  If,  there- 
fore, an  agent  has  in  his  possession  the  money  of  his  principal, 
or  his  principal's  negotiable  paper  payable  to  bearer  or  endorsed 
in  blank,  although  he  has  no  authority  to  transfer  it,  or  although 
he  may  have  acquired  its  possession  tortiously  or  against  the 
rights  of  his  principal,  his  transfer  of  it  to  one  who  takes  it  in 
the  usual  course  of  business,  in  good  faith,  before  maturity  and 
for  valuable  consideration,  will  confer  upon  such  transferee  a 
title  which  the  principal  cannot  defeat.*  Bnt  in  order  to  effect 
this  result,  all  of  the  elements  mentioned  must  co-exist.  In 
default  of  these  the  principal,  as  has  been  seen  in  the  preceding 
subdivision,  may  pursue  his  property  through  any  number  of 
transmutations  so  long  as  he  can  trace  it.  If  the  paper  were  payable 
to  the  order  of  the  principal  and  was  not  endorsed,  its  mere  posses- 
sion would,  of  course,  be  no  evidence  of  title  in  the  agent.' 

The  second  exception  rests  upon  well  recognized  principles  of 
estoppel.  If  a  man  voluntarily  places  his  property  in  the  pos- 
session of  one,  whose  ordinary  business  it  is  to  sell  similar  prop- 
erty as  the  agent  of  the  owners,  it  is  a  warrantable  inference,  in 
the  absence  of  anj^thing  to  indicate  a  contrary  intent,  that  he 
intends  his  property  to  be  sold  also.  Lord  Ellenborough  perti- 
nently inquires  :  "If  the  owner  of  a  horse  send  it  to  a  reposi- 
tory of  sale,  can  it  be  implied  that  he  sent  it  thither  for  any  other 
purpose  than  that  of  sale  ?  Or  if  one  sends  goods  to  an  auction 
room,  can  it  be  supposed  that  he  sent  them  thither  merely  for 
safe  keeping  ?  "  *  Bnt  here,  unlike  the  case  of  the  possession  of 
money  or  negotiable  paper,  it  is  necessary  that  the  agent  shall 
have  acquired  the  possession  of  the  property  by  the  act  of  the 

1  See   Daniel  on  Neg.  Insts,  §§769,  •Gibson  v.    Miller,    29  Mich.  355; 

863,  51  Am.  Dec.  602.  Morton  v.  Preston,  18  Mich.  60;  Lan- 

*  A  principal  can  not  recover  from  caster  National  Bank  v.  Taylor,  100 

a  third  party  who  received  it  in  good  Mass.  18,  97  Am.  Dec.  70;  Whistler  t>. 

faith,  money  of  the  ordinary  currency  Forster,  14  C.  B.  (N.  S.)  243;  Central 

of  the  country,  intrusted  by  the  princi-  Bank  v.  Hammett,  50  N.  Y.  158. 

pal  to  the  agent  for  special  purposes  <  In  Pickering  «.  Busk,   15   East, 

and  misapplied  by  the  agent.     Burn-  38. 
ham  V.  Holt,  14  N.  H.  367. 

642 


Chap.YIl.]     LIABILITY  OF  THIRD    rEliSON  TO  PRINCIPAL.  §  786. 


principal ;  possession  wrongfully  obtained  would  not  enable  the 
agent  to  confer  title  even  upon  a  hona  fide  purchaser.'  And  it 
is  also  necessary  that  the  business  of  the  person  to  whom  it  is  so 
confided,  be  to  sell  as  agent,  and  that  the  property  should  appear 
to  have  been  intrusted  to  him  in  the  line  of  his  business.  If,  on 
the  other  hand,  his  business  is  to  sell  his  own  goods,  as  the  owner, 
something  more  than  mere  possession  is  necessary.  There  must 
be  some  act  or  conduct,  on  the  part  of  the  real  owner,  whereby 
the  party  selling  is  clothed  with  the  apparent  ownership,  or  author- 
ity to  sell,  which  the  real  owner  will  not  be  heard  to  deny  or  ques- 
tion to  the  prejudice  of  an  innocent  third  party  dealing  on  the 
faith  of  such  appearance.  "  If  it  were  otherwise,"  said  a  learned 
judge,  "  people  would  not  be  secure  in  sending  their  watches  or 
articles  of  jewelry  to  a  jewelry  establishment  to  be  repaired,  or 
cloth  to  a  clothing  establishment  to  be  made  into  garments."* 
So,  too,  it  is  necessary  that  the  business  of  the  agent  be  to  sell 
similar  property.  The  mere  fact  that  one  puts  his  horse  into  the 
possession  of  an  agent,  whose  occupation  it  is  to  sell  jewelry 
only,  would  be  no  evidence  of  authority  to  sell  the  horse.*     This 


«  Saltus  v.  Everett,  20  Wend.  (N. 
y.)  366,  32  Am.  Dec.  541;  Filch  «. 
Newberry,  1  Doug.  (Mich.)  1,  40  Am. 
Dec.  38. 

»  Wilkinson  v.  King,  2  Camp.  335; 
Pickerings.  Busk,  15  East.  38;  Cole 
r.  Northwestern  Bank,  L.  R.  10  C.  P. 
354,  12  Eng.  Rep.  (Moak)  418;  Levit). 
Booth,  58  Md.  305,  42  Am.  Rep.  332; 
Johnson  v.  Credit  Lyonnais,  2  C.  P. 
Div.  224,  20  Eng.  Rep.  486;  S.  C.  on 
appeal,  3  C.  P.  Div.  26,  30  Eng  Rep. 
19. 

8  "  Strangers  can  only  look  to  the 
acts  of  the  parties  and  to  the  external 
indicia  of  property,  and  not  to  the 
private  communications  which  may 
pass  between  a  principal  and  his  bro- 
ker; and  if  a  person  authorize  another 
to  assume  the  apparent  right  of  dis- 
posing of  property  in  the  ordinary 
course  of  trade,  it  must  be  presumed 
that  the  apparent  authority  is  the  real 
authority.  I  cannot  subscribe  to  the 
doctrine  that  a  broker's  engagements 


are  necessarily,  and  in  all  cases,  limi- 
ted to  his  actual  authority,  the  reality 
of  which  is  afterwards  to  be  tried  by 
the  fact.  It  is  clear  that  he  may 
bind  his  principal  within  the  limits  of 
the  authority  with  which  he  has  been 
apparently  clothed  by  the  principal 
in  respect  to  the  subject-matter,  and 
there  would  be  no  safety  in  mercan- 
tile transactions  if  he  could  not.  II 
the  principal  send  his  commodity  to 
a  place,  where  it  is  the  ordinary  busi- 
ness of  the  person  to  whom  it  is  con- 
fided to  sell,  it  must  be  intended  that 
the  commodity  was  sent  thither  for 
the  purpose  of  sale.  If  the  owner  of 
a  horse  send  it  to  a  repository  of  sale, 
can  it  be  implied  that  he  sent  it 
thither  for  any  other  purpose  than 
that  of  sale  ?  Or  if  one  send  goods 
to  an  auction  room,  can  it  be  sup- 
posed that  he  sent  them  thilhe/ 
merely  for  safe  custody T  Where  tht< 
commodity  is  sent  in  such  a  way, and 
and  to  such  a  place,  as  to  exhibit  an 


643 


§786. 


THE    LAW    OF    AGENCY. 


[Book  lY. 


rule,  like  the  other,  is  for  the  protection  of  those  only  who  have, 
in  good  faith,  parted  with  value  in  the  usual  course  of  business 
upon  the  strength  of  the  authority  which  the  principal  has  caused 
or  permitted  to  appear.  If  the  purchaser  be  in  this  situation,  he 
is  protected  and  the  principal  is  estopped,  as  against  him,  to 
assert  that  the  agent  had  no  power  to  sell.'  But  if  the  pur- 
chaser had  notice  of  the  agent's  want  of  authority,  or  if  he  acted 
collusively  with  the  agent,  or  if  he  has  parted  with  no  value,  or 
if  he  purchased  the  property  out  of  the  usual  course  of  business, 
he   has   no   equities  which   are  superior  to   those   of   the   true 

owner. 

The  authority  implied  in  such  a  case  is  not  to  be  extended 
beyond  its  legitimate  scope.  The  authority  implied  is  an 
authority  to  sell  and  not  an  authority  to  exchange,  pledge  or 
mortgage.     Hence  a  transferee  claiming  title  to   the   property 


apparent  purpose  of  sale,  the  princi- 
pal will  be  bound,  and  the  purchaser 
safe."  Lord  Ellenborough,  C.  J., 
in  Pickering  v.  Busk,  15  East,  38. 
See  also  Folsom  v.  Batchelder,  22 
N.  H.  51;  Nixon  v.  Brown,  57  N.  11. 
34. 

This  rule  is  well  illustrated  by  the 
recent  case  of  Smith  v.  Clews,  105 
N.  Y.  283,  59  Am.  Hep.  503.  In  that 
case  it  appeared  that  one  Miei  s  was 
a  dealer  in  diamonds  in  New  York. 
His  business  was  to  procure  diamonds 
from  the  larger  dealers  and  sell  them 
to  his  customers.  He  obtained  from 
the  plaintiff  a  pair  of  diamonds  for 
which  he  gave  them  a  receipt  staling 
that  they  were  received  by  him,  "on 
approval  to  show  to  my  customers, 
said  knobs  to  be  returned  to  said  A. 
H.  Smith  «fc  Co.  on  demand."  Hav- 
ing obtained  the  diamonds  he  sold 
them  to  defendant  who  purchased 
them  in  good  faith,  supposing  Miers 
to  be  the  owner  and  paying  him  the 
price.  Miers  not  paying  the  plaintiffs, 
they  sought  to  recover  them  from  the 
defendant,  but  the  court  held  that 
plaintiffs,  by  intrusting  them  to  Miers, 


a  known  dealer  in  such  articles,  to  be 
shown  to  a  prospective  purchaser, 
had  clothed  him  with  apparent  au- 
thority to  sell,  and  that  defendant  got 
a  good  title.  The  provision  that  the 
diamonds  were  to  be  returned  upun 
demand  was  held  by  the  court  to 
mean  that  they  were  to  be  reiurned  if 
the  purchaser  in  view  did  not  buy 
them. 

But  where  the  owner  of  a  diamond 
ring  put  it  into  the  hands  of  a  jeweler 
to  match  it,  or  failing  in  that,  to  get 
an  offer  for  it, and  the  jeweller  sold  it 
to  one  who  bought  in  good  faith,  it 
was  held  that  the  purchaser  got  no 
title  as  against  the  owner.  Authority 
to  get  an  offer  did  not  confer  power 
to  sell.  The  owner  had  the  right  to 
pass  upon  the  offer  himself.  Levi 
V.  Booth,  58  Md.  305,  42  Am.  Rep. 
332. 

1  Where  the  person  dealing  with 
the  apparent  owner  of  property  has 
actual  notice  of  the  rights  of  the  true 
owner,  he  can  claim  no  other  or 
greater  rights  tlierein  than  the  appar- 
ent owner  can  lawfully  convey.  Por- 
ter V,  Parks,  49  N.  Y.  564. 


644 


Chap.  VII.]     LIABILITY  OF  THIRD    PERSON  TO  PRINCIPAL.  §  787. 

through  such  a  transaction  could  not  defeat  a  recovery  by  the  true 
owner.' 

§  787.  Possession  coupled  with  Indicia  of  Ownership.  So 
where,  in  addition  to  the  possession  of  the  property,  the  princi- 
pal has  conferred  upon  the  a^ent  the  documents  which  constitute 
the  usual  indicia  of  ownership,  or  has  otherwise  held  hira  out  as 
possessed  of  the  ownership,  or  power  of  disposal  of  the  prop- 
erty, a  question  is  presented,  similar  to  the  one  last  under  con- 
sideration. For  where  the  principal  has  intentionally  or  negli- 
gently caused  or  permitted  his  agent  to  hold  himself  out  to  the 
world  as  the  owner  of  property,  clothed  with  the  evidences 
of  title,  or  as  having  competent  authority  to  transfer  the 
title,  and  innocent  third  parties  have,  in  good  faith,  acquired 
rights  in  the  property  upon  the  strength  of  the  appearance,  the 
plainest  dictates  of  right  and  justice  require  that  the  principal 
should  not  be  permitted  to  deny  that  the  agent  was  the  owner, 
although  as  between  himself  and  the  agent,  the  fact  may  have 
been  otherwise.' 

"It  must  be  conceded,"  said  Judge  Eapallo,  in  dealing  with 
the  question,  "that,  as  a  general  rule,  applicable  to  property 
other  than  negotiable  securities,  the  vendor  or  pledgor  can  con- 
vey no  greater  right  or  title  than  he  has.  But  this  is  a  truism, 
predicable  of  a  simple  transfer  from  one  party  to  another  where 
no  other  element  intervenes.  It  does  not  interfere  with  the  well 
established  principle,  that  where  the  true  owner  holds  out  another, 
or  allows  him  to  appear,  as  the  owner  of,  or  as  having  full  power 
of  disposition  over  the  property,  and  innocent  third  parties  are 

*  Agent  to  sell  cannot  pledge.  som  v.  Thornton,  6  East  17;  Taylor 
Loring  v.  Brodie,  134  Mass.  453;  Mc-  v.  Kymer,  3  B.  «fc  Ad.  320;  Saltus  v. 
Creary  «.  Gaines,  55  Tex.  485,  40  Everett.  20  Wend.  (N.  Y.)  267,  32 
Am.  Rep.  818;  City  Bank®.  Barrow  Am.  Dec.  541;  McNeil «.  Tenth  Na- 
5  App.  Cas.  664,  34  Eng,  Rep.  41;  tional  Bank,  46  N.Y.  325,7  Am.  Rep. 
Voss  ».  Robertson,  46  Ala.  483;  341;  Moore  v.  Metropolitan  National 
Wheeler  &  Wilson  Mfg.  Co.,  v.Givan,  Bank,  55  N.  Y.  41.  14  Am.  Rep.  173; 
65  Mo.  89.  Root  V.  French,  13  Wend.  (N.  Y.)  570, 

Nor    mortgage: — Switzer  v.    Wil-  28  Am.   Dec.  482;  Nixon  v.  Brown, 

vers,  24  Kan.  384,  36  Am.  Rep.  259.  67  N.  H.  34;  Barnard  v.  Campbell, 

Nor  exchange:— Bertholf  v.  Quin-  55  N.  Y.  456,  14  Am.  Rep.  289,  a.  c. 

Ian,  68  111.  297.  58  N.Y.73,  17  Am.  Rep.  208;  Walker 

•  Pickering  «.  Busk,  15  East.  38;  v.  Detroit  Transit  Ry  Co.,  47  Mich. 
Gregg  u  Wells,    10  Ad.    &  Ell.    90;  838. 

Dyer  v.  Pearson,  3  B.  «&  C.  38;  New- 

645 


§  788.  THE   LAW    OF   AGENCY.  [Book    IV.  , 

thus  led  into  dealing  with  such  apparent  owner,  they  will  be  pro- 
tected. Their  rights  in  such  cases  do  not  depend  upon  the  actual 
title  or  authority  of  the  party  with  whom  they  deal  directly,  but 
are  derived  from  the  act  of  the  real  owner,  which  precludes  him 
from  disputing,  as  against  them,  the  existence  of  the  title  or 
power,  which  through  negligence  or  mistaken  confidence,  he 
caused  or  allowed  to  appear  to  be  vested  in  the  party  making 
the  conveyance."  * 

The  fact  that  the  act  of  the  agent  is  a  fraud  upon  his  princi- 
pal, does  not  alter  the  rule.  Indeed,  in  every  case  in  which  the 
question  here  under  consideration  can  arise,  the  act  of  the  agent 
must  have  been  either  a  negligent  or  a  willful  violation  of  his 
duty  to  his  principal,  because  if  the  act  were  in  fact  authorized, 
no  necessity  would  exist  for  the  application  of  the  principle  of 
estoppel.  But  the  principal  has  appointed  the  agent  and  put  him 
in  motion,  and  given  him  the  means  by  which  to  accomplish  the 
act,  and  although  the  principal  may  be  entirely  innocent  of 
wrong  intention,  yet,  in  accordance  with  the  well  settled  rule, 
that  where  one  of  two  innocent  parties  must  suffer,  the  loss  must 
fall  upon  him  by  whose  act  it  was  made  possible  to  occur,  the 
principal  must  be  held  bound.* 

But  this  rule  operates  only  for  the  protection  of  those  who,  in 
dealino-  with  the  agent,  have  exercised  ordinary  caution  and  pru- 
dence, and  who  have  dealt  in  the  ordinary  way  and  in  the  usual 
course  of  business,  upon  the  ordinary  evidences  of  right  and 
authority.*  So  its  protection  extends  only  to  those  who,  in  reli- 
ance upon  the  apparent  ownership,  have  in  good  faith  acquired 
interests  therein  for  a  valuable  consideration.  If  they  have 
parted  with  no  valre,  they  are  entitled  to  no  protection.  Tiie 
payment,  or  parting  with  value  for  the  property,  by  the  purchaser, 
lies  at  the  foundation  of  the  estoppel,  for  if  he  has  parted  with 
nothino-,  he  can  lose  nothing  if  the  true  owner  retakes  the  goods; 
and  that  payment  must  be  occasioned  by  the  acts  or  omissions  of 
such  owner.  It  is  the  payment  or  the  parting  with  value  which 
creates  the  estoppel,  and  if  that  is  not  done  in  reliance  upon  the 
appearance  given  by  the  principal,  the  latter  will  not  be  estopped.* 

§788.     Same  Subject— Ulustrations.     These   principles   find 

» In    McNeil    v.    Tenth    National  » Barnard  v.  Campbell,  mpra. 

Bank,  supra.  *  Barnard  v.  Campbell,  mpra. 
»  Barnard  c.  Campbell,  tupra. 

646 


Cliap.YlL]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  788. 

frequent  illQstration  in  the  decided  cases,  a  few  of  which  will 
serve  to  show  the  occasion  and  extent  of  their  application. 
Among  these,  Pickering  v.  Busk'  is  a  leading  case.  In  that  case 
it  appeared  that  a  broker,  named  Swallow,  had  purchased  for  the 
plaintiff,  Pickering,  a  quantity  of  hemp,  which  by  the  plaintiff's 
request  was  transferred  upon  the  books  of  the  wharfinger  to  the. 
name  of  Swallow.  Another  lot  subsequently  purchased,  was 
transferred  to  the  names  of  Pickering  or  Swallow,  which  the 
court  held  to  be  the  same,  so  far  as  the  question  there  involved 
was  concerned,  as  though  it  stood  in  Swallow's  name  alone.  The 
plaintiff  paid  for  the  hemp.  Swallow  afterwards  wrongfully 
sold  it  to  defendant's  assignors  in  bankruptcy  who  relied  upon 
the  entry  in  the  wharfinger's  books  and  who  paid  him  for  it ;  and 
Pickering  sued  the  assignees  in  trover  for  the  value.  But  the 
court  held  that,  by  permitting  the  hemp  to  appear  upon  the 
books  of  the  wharfinger  as  the  property  of  Swallow,  the  plain- 
tiff had  authorized  third  persons,  who  relied  upon  Swallow's 
apparent  ownership,  to  believe  that  he  had  authority  to  sell  the 
hemp,  and  that  he  could  not  recover. 

McNeil  V.  The  Tenth  National  Bank "  is  also  a  well  considered 
and  valuable  case  upon  this  subject.  There  the  plaintiff,  who 
was  the  owner  of  bank  shares,  delivered  to  his  brokers  to  secure 
a  balance  of  account,  the  certificate  of  the  shares,  indorsed  with 
an  assignment  in  blank  and  an  irrevocable  power  of  transfer 
signed  and  sealed  by  himself.  The  brokers,  without  his  knowl- 
edge, pledged  the  shares  to  the  defendant  to  secure  advances 
made  to  them,  the  defendant  having  no  knowledge  of  the  plain- 
tiff's interest.  The  plaintiff  brought  an  action  against  the  defen- 
dant to  compel  the  latter  to  deliver  the  shares  to  him,  but  it  was 
held  that  the  defendant  was  entitled  to  hold  the  stock  as  against 
the  plaintiff  for  the  full  amount  of  the  advances  made  and  remain- 
ing unpaid.  In  delivering  the  opinion  of  the  court,  Rapallo, 
J,,  said:  "Simply  entrusting  the  possession  of  a  chattel  to  an- 
other as  depositary,  pledgee  or  other  bailee,  or  even  under  a  con- 
ditional executory  contract  of  sale,  is  clearly  insufficient  to  pre- 
clude the  real  owner  from  reclaiming  his  property,  in  case  of  an 
unauthorized  disposition  of  it  by  the  person  so  intrusted.'  'The 
mere  possession  of  chattels,  by  whatever  means  acquired,  ifihera 

'  15  East,  88.  »  Citing  Ballard  v.  Burgett,  40  N. 

•46  N.  Y.  325,  7  Am.  Rep.  341.  Y.  314. 

647 


§  788.  THE   LAW   OF    AGENOT.  [Book  lY. 

he  no  other  evidence  of  property  or  authority  to  sell  from 
the  true  owner,  will  not  enable  the  possessor  to  give  a  good 
title.' ' 

But  if  the  owner  intrusts  to  another,  not  merely  the  possession 
of  the  property,  but  also  written  evidence  over  his  own  signature 
of  title  thereto,  and  of  an  unconditional  power  of  disposition 
over  it,  the  case  is  vastly  different.  There  can  be  no  occasion 
for  the  delivery  of  such  documents,  unless  it  is  intended  that 
they  shall  be  used,  either  at  the  pleasure  of  the  depositary  or 
under  contingencies  to  arise.  If  the  conditions  upon  which  this 
apparent  right  of  control  is  to  be  exercised  are  not  expressed  on 
the  face  of  the  instrument,  but  remain  in  confidence  between  the 
owner  and  the  depositary,  the  case  cannot  be  distinguished  in 
principle  from  that  of  an  agent  who  receives  secret  instructions 
qualifying  or  restricting  an  apparently  absolute  power.     *    *     * 

The  holder  of  such  a  certificate  and  power  possesses  all  the 
external  indicia  of  title  to  the  stock,  and  an  apparently  unlimi- 
ted power  of  disposition  over  it.  He  does  not  appear  to  have, 
as  is  said  in  some  of  the  authorities  cited,  concerning  the  assignee 
of  a  chose  in  action,  a  mere  equitable  interest,  which  is  said  to  be 
notice  to  all  persons  dealing  with  him  that  they  take  subject  to 
all  equities,  latent  or  otherwise,  of  third  parties;  but,  apparently, 
the  legal  title  and  the  means  of  transferring  such  title  in  the 
most  effectual  manner. 

Such,  then,  being  the  nature  and  effect  of  the  documents  with 
which  the  plaintiff  intrusted  his  brokers,  what  position  does  he 
occupy  towards  persons  who,  in  reliance  upon  those  documents, 
have  in  good  faith  advanced  money  to  the  brokers  or  their 
assigns  on  a  pledge  of  the  shares  ?  When  he  asserts  his  title,  and 
claims  as  against  them  that  he  could  not  be  deprived  of  his  prop- 
erty without  his  consent,  cannot  he  be  truly  answered  that  by 
leaving  the  certificate  in  the  hands  of  his  brokers,  accompanied 
by  an  instrument  bearing  his  own  signature,  which  purported  to 
be  executed  for  a  consideration  and  to  convey  the  title  away 
from  him,  and  to  empower  the  bearer  of  it,  irrevocably  to  dispose 
of  the  stock,  he,  in  fact  'substituted  his  trust  in  the  honesty  of 
his  brokers  for  the  control  which  the  law  gave  him  over  his  own 
property,'  and  that  the  consequences  of  a  betrayal  of  that  trust 

»  Citing  Bbonbon,  C.  J.  in  Covill  v.  Hill.  4  Den.  (N.  Y.)  833. 
648 


Chap. VII.]     LIABILITY  OF  THIRD  PERSON  TO  PRINCIPAL.  §  7S8. 

should  fall  upon  him  who  reposed  it,  rather  than  upon  innocent 
strangers  from  whom  the  brokers  were  thereby  enabled  to  obtain 
their  money?"  * 

So  in  Calais  Steamboat  Co.  v.  Yan  Pelt,"  it  appeared  that  Yan 
Pelt,  who  resided  in  California,  instructed  his  agent  in  New 
York  to  cause  a  steamboat  to  be  built,  giving  tlie  agent  express 
directions  to  hold  himself,  the  agent,  out  as  owner,  and  to  cause 
the  vessel  to  be  enrolled  in  his,  the  agent's,  own  name,  as  the 
principal  did  not  wish  to  appear,  or  to  be  known,  as  the  owner. 
The  agent  followed  these  instructions,  but  upon  the  completion 
of  the  vessel,  sold  her  to  the  Steamboat  company,  who  pur- 
chased her  in  good  faith  without  knowledge  of  Yan  Pelt's  inter- 
est, in  reliance  upon  the  agent's  apparent  ownership,  and  paid  the 
agent  her  full  value.  The  agent  converted  the  money  to  his  own 
use,  and  Yan  Pelt  brought  an  action  against  the  Steamboat 
company  to  establish  his  title.  But  the  Supreme  Court  of  the 
United  States  held  that,  having  held  the  agent  out  to  the  world 
as  owner,  and  having  intentionally  clothed  him  with  the  docu- 
mentary evidences  of  ownership,  he  could  not  recover  from 
one  who,  in  good  faith,  had  purchased  the  property  relying 
upon  such  apparent  ownership. 

Nixon  V.  Brown'  presents  another  illustration  of  this  princi- 
ple. Nixon  had  employed  an  agent  to  purchase  a  horse.  The 
agent  made  the  purchase,  but  took  the  bill  of  sale  in  his  own 
name.  He  informed  Nixon  of  the  purchase,  showed  him  the  bill 
of  sale,  and  said  he  would  execute  a  bill  of  sale  to  Nixon  which 
would  make  it  all  right,  but  did  not  do  so.  It  was  then  arranged 
that  the  agent  should  keep  the  horse  in  his  possession  for  the 
purpose  of  training  him,  and  the  agent  went  away  taking  with 
him  the  bill  of  sale.  Afterwards  the  agent  sold  the  horse  to 
Brown  who  purchased  in  good  faith  in  reliance  upon  the  appar- 
ent title  conferred  by  the  bill  of  sale,  and  paid  the  agent  the 
money,  with  which  the  latter  decamped.  Nixon  thereupon  sued 
Brown  in  trover,  but  was  not  permitted  to  recover.  The  trouble 
with  the  plaintiff's  claim,  said  the  court,  was  that  he  suffered  his 
agent  to  carry  off  with  him  the  evidence  as  to  the  ownership  oi 

'  For    similar  or    analogous  cases,  623;  Bartlett  p.  Board  of  Education, 

see  Commercial   Bank   v.    Kortright,  59  111.  371. 

22  Wend.  (N.  Y.)  348,  34    Am.  Dec.  '«  2  Black.  (U.  S.)  378. 

317;  Holbrook  v.  Zinc  Co..  57  N.  Y.  »57  N.  H:  34. 

649 


§  73S,  THE    LAW    OF    AGENCY.  [Book  IV. 

the  horse,  which  was  directly  calculated  to  mislead  and  deceive 
an  innocent  purcliaser.  He  selected,  as  his  agent,  a  person  who 
proved  to  be  a  thief.  And  inasmuch  as  one  of  two  innocent 
persons  must  sujBFer,  it  must,  in  this  case,  be  the  plaintiff,  because 
he  put  it  in  the  power  of  his  agent  to  deceive  the  defendant, 
when  it  was  possible  for  him  to  have  prevented  it. 

But  in  order  to  estop  the  true  owner  it  is,  as  has  been  seen, 
indispensable  not  only  that  he  has  clothed  the  person  assuming 
to  dispose  of  the  property,  with  the  apparent  title  to  it,  or  with 
apparent  authority  to  dispose  of  it,  but  also  that  the  person  alleg- 
ing the  estoppel  must  have  acted,  and  parted  with  value,  upon 
the  faith  of  such  apparent  ownership  or  authority,  so  that  he  will 
be  the  loser  if  the  appearances  to  which  he  trusted  are  not  real. 
This  principle  is  well  illustrated  by  a  case  which  received  elab- 
orate consideration  in  the  Court  of  Appeals  of  New  York.^ 
There  defendants  bought  of  one  Jeffries,  on  the  21st  of  August, 
a  quantity  of  linseed,  and,  at  his  request,  forwarded  to  him  their 
notes  in  payment,  which  he  at  once  pledged  as  collateral  to  a 
loan.  Jeffries  did  not  have  the  linseed  at  the  time,  but  on  the 
24:th  of  August,  he  purchased  it  of  the  plaintiffs,  and,  by  false 
and  fraudulent  representations,  induced  them  to  deliver  it  to  him 
without  payment.  He  sent  the  linseed  to  the  defendants  on 
the  24th  of  August,  and  on  the  next  day  mailed  them  the  bill  of 
lading.  On  the  27th  of  August,  Jeffries  failed,  not  having  paid 
for  the  linseed,  and  plaintiffs,  on  account  of  the  fraudulent  repre- 
sentations, rescinded  the  sale,  and  demanded  the  linseed  of  the 
defendants.  Upon  their  refusing  to  surrender  it,  the  plaintiffs 
brought  replevin,  and  were  permitted  to  recover.  Defendants 
assumed  the  position  of  honafide  purchasers  for  value,  and,  claim- 
ing that  they  had  purchased  upon  the  faith  of  the  possession  con- 
ferred by  the  plaintiffs  upon  Jeffries,  invoked  the  principle  of 
estoppel  for  their  protection.  But  the  court  held  that  every  ele- 
ment of  estoppel  was  wanting.  At  the  time  defendants  pur- 
chased the  property  and  parted  with  their  notes,  Jeffries  had 
neither  the  possession  of  the  property  nor  the  right  of  possession, 
nor  had  he  any  documentary  evidence  of  title,  or  any  indicia  of 
ownership  or  of  dominion  over  the  property  of  any  kind.  The 
plaintiffs   had  then  done  nothing  to  induce  the  defendants   to 

>  Barnard  e.  Campbell,  55  N.  Y.  motion  for  rehearing,  58  N.  Y.  73,  17 
456,    14  Am.    Rep.    289,   8.   c,    on      Am.  Rep.  208. 

650 


Chap.   Vll.]    LIABILITY  OF  THIED  PKK80N  TO  PBLNCIl'AL.  §  T'Jl. 

put  their  faith  in,  or  give  credit  to,  the  claim  of  Jeffries  of  the 
right  to  sell  the  property.  The  defendants  parted  with  the  con- 
sideration for  the  seed,  not  upon  the  apparent  owuersliip  of  Jeff- 
ries, but  upon  his  assertion  of  a  right  of  which  the  plaintiffs  had 
no  knowledge,  and  for  which  they  were  in  no  way  responsible. 

§  789.  Principal  may  recover  Property  appropriated  to  Agent's 
Uses.  As  has  been  seen,  an  agent  having  property  of  his  prin- 
cipal in  his  possession  to  be  disposed  of  by  sale  or  otherwise  for 
the  principal's  benefit,  can  not  tarn  it  out  to  a  third  person  in 
payment  of  a  debt  due  such  third  person  by  the  agent,  and,  if 
he  does  so,  the  principal  may  recover  it.*  The  fact  that  the  prin- 
cipal also  has  a  right  of  action  against  the  agent  for  the  wrong- 
ful disposition  of  the  property,  does  not  prevent  the  principal's 
recovery  from  the  third  person  who  has  received  it' 

So  the  property  of  the  principal  in  the  agent's  hands  can  not 
be  taken  by  legal  process  for  the  agent's  debts,  and,  if  so  taken, 
the  principal  may  recover  it.' 

§  790.  Right  to  recover  Securities  wrongfully  released. 
Where  an  agent,  without  authority,  releases  security  belonging 
to  his  principal,  the  principal  may  recover  it,  and  his  right  of 
action  is  not  lost  by  mere  neglect  to  dissent,  if  the  other  party  is 
not  prejudiced  thereby.* 

So  where  an  agent  authorized  only  to  sell,  collect  and  take 
notes,  surrendered,  before  they  were  due,  certain  notes  running 
to  his  principal  and  took  notes  payable  to  himself,  it  was  held 
that  the  principal  could  recover  on  the  original  notes.' 

But  where  an  agent  having  authority  to  "  assign,  satisfy  and 
discharge"  all  mortgages  of  his  principal  in  his  possession,  sold 
and  assigned  one  to  A,  and  used  the  money  for  his  own  purposes, 
it  was  held  that  A  having  acted  in  good  faith,  was  not  liable  over 
to  the  principal.* 

§  791.  Right  to  recover  Property  wrongfully  sold.  As  has 
also  been  seen,  an  agent  employed  to  sell  his  principal's  property, 
whether  it  be  real  or  personal,   cannot,  without    the  principal's 

>  Thompson  v.   Barnum,  49  Iowa,  *  Whittemore  v.  Hamilton,  51  Conn. 

392.  153. 

a  Bertholf  v.  Quinlan,  68  111.  297.  »  Robinson  v.   Anderson,  106  Ind. 

•Loomis    V.    Barker,    69  111.    360;  252. 

Farmers'  &  Mechanics'  Bank  v.  King,  •  Chestwood  v.   Berrian,    89  N.  J. 

57  Penn.  St.  202,  98  Am.  Dec.  215.  Eq.  203. 

651 


3  792.  THE    LAW    OF    AGENCY.  [Book  IV. 

full  knowledge  and  consent,  sell  it  to  himself.  And  what  he  can 
not  thus  do  directly,  he  will  not  be  permitted  to  do  indirectly. 
If  therefore,  the  agent,  in  violation  of  his  duty,  sell  the  property 
ostensibly  to  a  third  person,'  or  to  a  third  person  in  conjunction 
with  himself,*  but  in  reality  for  his  own  benefit;  or  if  he  sells  it 
to  a  partnership  of  which  he  is  a  member ; '  the  sale  is  voidable 
at  the  election  of  the  principal,  and  the  latter  may,  if  he  acts 
within  a  reasonable  time  after  the  facts  have  come  to  his  knowl- 
edge, and  if  the  rights  of  an  innocent  third  party  have  not  inter- 
vened, avoid  the  sale,  upon  returning  or  tendering  back  the  con- 
sideration received,  and  recover  the  property  from  such  third 
person  or  any  one  to  whom  it  been  conveyed  with  knowledge  of 
the  facts.*  That  the  principal  was  not  injured,  or  the  property 
was  not  sold  under  its  value,'  or  that  it  was  sold  for  the  price 
fixed  by  the  principal,'  does  not,  as  has  been  seen,  defeat  the 
principal's  right. 

4.  Right  to  Recover  for  Torts. 
8  792.  May  recover  for  Injuries  occasioned  for  third  Person's 
Torts.  For  wrongs  done  or  injuries  committed  by  third  persons 
to  the  property  or  interests  of  the  principal  which  he  has  com- 
mitted to  his  agent,  the  principal  may  ordinarily  recover  in  the 
same  manner  and  to  the  same  extent  as  though  no  agency  had 
existed.  Except  where  the  agent  has  a  special  interest  in  the 
subject-matter  of  the  agency,  the  possession  of  the  agent  is  the 
possession  of  the  principal,  who  may  maintain  actions  based  upon 
such  possession.  For  the  maintenance  of  those  actions  which 
depend  upon  the  right  of  property,  the  principal's  title  to  the 

>  Eldridge  v.   Walker,  60  111.  230;  istrator;  Ives  ».  Ashley,  97  Mass.  198; 

Bee  Haynie  v.  Johnson,  71  Ind.  394.  Greene*.  Haskell,  5  R.  I.  447. 

s  Hughes  V.  Washington,  72  111.  84.  Agent's  clerk  can  not  lawfully  pur- 

»  Francis  v.  Kerker,  85  111.  190.  chase  and  if  he  does  principal  may 

*  Norris  v.  Tayloe,   49   111.  17,  95  compel  him  to  recover  or  account  for 

Am.  Dec.  568.  proceeds;  Gardner  v.  Ogden,  22  N.  T. 

»  Lewis  V.   Hillman.   8  H.  L.  Gas.  327,  78  Am.  Dec.  192;  Lingke  v.  Wil- 

607;  Trevelyan  v.   Charter,  9    Beav.  kinson,  57  N.  Y.   451;  Cheeseman  v. 

j4o'  Sturges,  9  Bows.  (N.  Y.)  255;  Levy  v. 

BRuckman  e.  Bergholz,  37  N.  J.  L.  Brush,  8  Abb.  Pr.  N.   S.   431;  New- 

437  comb  v.  Brooks,  16  W.  Va.  71. 

Same  principle  was  applied  to  a  Nor  his  partner;  Fulton  v.  Whit- 

sale    by  an    administrator  to  a  third  ney,    5   Hun  (N.  Y.)   19;  Francis  e. 

person  in  secret  trust  for  the   admin-  Kerker,  85  111.  190. 

652 


Cliap.VlI.]      LIA-BILITT  OF  THIRD  PERSON  TO  PRINCIPAL.  §  794. 

thing  involved  is,  of  course,  suflBcient,  though  the  actual  custody 
may  have  been  confided  to  another. 

Hence  if,  in  the  dealings  through  the  agent,  the  principal  ia 
injured  by  the  fraud,  deceit,  negligence  or  trespass  of  third  per- 
sons, he  may  maintain  his  action  in  the  same  manner  as  though 
he  had  dealt  in  person.' 

If  the  agent  has  co-operated  with  the  third  person  in  the  com- 
mission of  the  injury,  the  principal  may  sue  both  or  either  of 
them.* 

§  793.  For  entioing  Agent  away.  A  principal  may  maintain 
an  action  against  a  third  person  who  wrongfully  induces  hia 
agent  to  abandon  his  undertaking.'  Said  Rodman,  J.,  in  a  recent 
case  :  "  We  take  it  to  be  a  settled  principle  of  law,  that  if  one 
contracts  upon  a  consideration  to  render  personal  services  for 
another,  any  third  person  who  maliciously,  that  is,  without  a  law- 
ful justification,  induces  the  party  who  contracted  to  render  the 
service  to  refuse  to  do  so,  is  liable  to  the  injured  party  in  an 
action  for  damages.  It  need  scarcely  be  said  that  there  is  noth- 
ing in  this  principle  inconsistent  with  personal  freedom,  else  we 
should  not  find  it  in  the  laws  of  the  freest  and  most  enlightened 
States  in  the  world.  It  extends  impartially  to  every  grade  of 
service,  from  the  most  brilliant  and  best  paid,  to  the  most 
homely,  and  it  shelters  our  nearest  and  tendcrest  domestic  rela- 
tions from  the  interference  of  malicious  intermeddlers.  It  is  not 
derived  from  any  idea  of  property  by  the  one  party  in  the  other, 
but  is  an  inference  from  the  obligation  of  a  contract  freely  made 
by  competent  persons."  * 

§  794.  For  preventing  Agent  from  performing.  For  similar 
reasons  the  principal  may  recover  against  one  who   wrongfully 

•  White  V.  DoUiver,  113  Ma3s.  400,  Johnsbury,  &c.  R.  R.  Co.  v.  Hunt,  55 

18  Am.    Rep.    503;   Holly   v.  Hugge-  Vt.  570,  45  Am.  Rep.   639;  Walker©, 

ford,  8  Pick.  (Mass.)  73,  19  Am.  Dec.  Cronin.  107  Mass.  555;   Hart  v.  Ald- 

303.     Where  the  agent  of  a  purchaser  ridge,  Cowp.  54;  Gunter  v.    Astor,  4 

of  land  was  deceived  by  a  false  entry  J.  B.    Moore,    12;   Lumley  v.  Gye,  2 

made  by  a  public  officer,  the  princi-  El.  &   Bl.    216,   20  Eng.  Law  &  Eq. 

pal  may  sue  for  damages.     Perkins??.  168;  Jones  v.   Blocker,   43  Ga.    331; 

Evans,  61  Iowa,  35.  Salter  u.  Howard.  43  Ga.   601;  Bixby 

a  Taylor  v.  Plumer,  3  M.  &  S.  562.  e.  Dunlap.  56  N.  H.  456,  22  Am,  Rep. 

«  Haskins  v.  Roysler,  70  N.  C.  601,  475;  Daniel  ti.    Swearengen,  6  S.  C. 

10  Am.  Rep.    7S0;  Huff  v.  Watkins,  297,  24  Am.  Rep.  471. 
15   S.    C.    82,  40   Am.   Rep.  680;  St.  *  In  Hiiskins  v.  Royster,  supra. 

C53 


§  795.  THE    LAW    OF    AGENCY.  [Book  iV. 

prevents  the  agent  from  performing  his  undertaking,  whereby 
the  principal  suffers  injury.  Thus  it  has  been  held  that  a  railroad 
company  may  maintain  an  action  against  one  who  maliciously 
causes  the  arrest  of  its  engineer  while  running  a  train,  with 
intent  to  delay  the  train  and  injure  the  company.' 

§  795.  For  personal  Injury  to  Agent  causing  Loss  of  Service. 
So  an  action  may  be  maintained  against  a  third  person  for  a  per- 
sonal injury,  committed  by  him  upon  the  agent,  and  which  causes 
Buch  a  disability  as  prevents  the  agent  from  performing  his 
stipulated  undertaking,  thereby  causing  injury  to  the  principal.' 

§  796.  Third  Person  not  liable  for  Agent's  Fraud  or  Neglect. 
A  third  person,  however,  who  deals  with  an  agent,  is  not  liable 
to  the  principal  for  a  fraud  perpetrated  by  the  agent  upon  his 
principal  in  that  transaction  unless  such  third  person  was  a  party 
to  the  fraud  ;'  nor  does  the  neglect  or  want  of  skill  of  the  agent 
in  the  transaction,  by  which  the  principal  suffers  loss  or  injury, 
entitle  the  principal  to  relief  against  the  other  party  who  has 
been  guilty  of  no  wrong  upon  his  part.*  If  the  principal  does 
not  obtain  as  good  a  bargain,  or  derive  as  mucli  benefit  from  the 
transaction,  as  if  a  more  skilful  or  experienced  agent  had  been 
employed,  he  cannot  complain  if  the  other  party  has  taken  no 
undue  advantage  of  the  agent. 

5.  Remedies  for  Double  Dealing. 
8  797.  How  when,  third  Person  conspires  with  Agent.  But 
where  the  third  person  conspires  with  the  agent  to  perpetrate  a 
fraud  upon  the  principal,  he  is  undoubtedly  liable.  So  where 
the  third  person,  by  surreptitious  dealing  with  the  agent,  or  by 
corrupting  him  or  leading  him  astray  from  his  duty,  has  obtained 
the  property  of  the  principal,  or  has  secured,  from  the  principal, 
contracts,  obligations  or  rights  in  action,  the  defrauded  principal, 
if  he  acts  promptly  and  before  the  rights  of  innocent  third  parties 
have  intervened,  is  entitled  to  recover  his  property,  and  to  have 

*  St.  Johnsbury,   &c.  R.  R.  Co.  v.  Burgess «.  Carpenter.  2  S.   C.  7,  18 

Hunt,  55  Vt.  570,  45  Am.  Rep.  639.  Am.  Rep.  643,  as  explained  in  Daniel 

«  Robert  Mary's  Case,  9  Coke  113;  v.  Swearengen,  6  S.    C.  397,  24  Am. 

Ames  V.  Union  Ry  Co.,  117  Mass.  541,  Rep.  471,  is  not  contra. 

19  Am.  Rep.  426;  Kennedy  v.  Shea,  »  Mason  v.  Bauman.  63  HI.  76. 

110  Mass.  147,  14  Am.  Rep.  584;  Mc-  «  Bacon  v.  Markley,  46  Ind.  116. 
Carthy  v.  Guild,  12  Mete.  (Mass.) 291; 

654 


Chap. VII.]     LIABILITY  OF  THIRD  PP:KS0N  TO  PRINCIPAL.  §  797. 

the  contracts,  obligations  or  rights  of  action  rescinded,  or,  if  he 
elects  not  to  have  it  rescinded,  to  have  such  other  adequate  relief 
as  a  court  of  equity  maj  deep  proper  under  the  circumstances.' 


>  These  principles  are  admirably 
illustrated  in  a  recent  case  in  the 
English  Court  of  Chancery,  Panama, 
&c.  Telegraph  Co.  «.  India  Rubber, 
&c.  Co..  L.  R.  10  Ch.  App.  515,  14 
Eng.  Rep.  (Moak)  759.  In  this  case 
it  appears  that  a  telegraph  works 
compaDy  agreed  with  a  telegraph 
cable  company  to  lay  a  cable,  the 
cable  to  be  paid  for  by  a  sum  payable 
when  the  cable  was  begun,  aad  by 
twelve  installments  payable  on  cer- 
tificates by  the  cable  company's 
engineer,  who  was  named  in  the  con- 
tract. Shortly  afterwards  the  engi- 
neer, who  was  engaged  to  lay  other 
cables  for  the  works  company,  agreed 
with  them  to  lay  this  cable,  also  for  a 
sum  of  money  to  be  paid  to  him  by 
installments  payable  by  the  works 
company  when  they  received  the  in- 
stallments from  the  cable  company. 
Held,  that,  under  the  circumstances, 
the  agreement  between  the  engineer 
and  the  works  company  was  a  fraud, 
which  entitled  the  cable  company  to 
have  their  contract  rescinded,  and  to 
receive  back  the  money  which  they 
had  paid  under  that  contract. 

Sir  W.  M.  James,  L.  J.  said. 
"  According  to  my  view  of  the  law  of 
this  court,  I  take  it  to  be  clear  that 
any  surreptitious  dealing  between  one 
principal  and  the  agent  of  the  other 
principal,  is  a  fraud  on  such  other 
principal,  cognizable  in  the  court. 
That,  I  take  to  be  a  clear  proposition, 
and  I  take  it,  according  to  my  view, 
to  be  equally  clear  that  the  dei'rauded 
principal,  if  he  comes  in  time,  is  enti- 
tled, at  his  option,  to  have  the  con- 
tract rescinded,  or,  if  he  elects  not  to 
have  it  rescinded,  to  have  such  otiier 
adequate  relief  as  the  court  may 
think  right  to  give  him. 


It  is  said  that  there  is  no  authority 
and  no  dictum  to  that  effect.  The 
clearer  a  thing  is,  the  more  difficult  it 
is  to  find  any  express  authority  or 
any  dictum  exactly  to  the  point.  I 
doubt  whether  there  could  be  found 
any  authority  or  any  dictum  exactly 
laying  down  the  first  of  the  two  pro- 
positions which  I  have  mentioned, 
and  which  nobody  has,  in  the  course 
of  the  argument,  ventured  to  dispute 
— that  is,  that  any  surreptitious  deal- 
ing between  one  principal  and  the 
agent  for  the  other  principal  is  a 
fraud  on  such  other  principal  cogniz- 
able in  this  court.  The  other  propo- 
sition, as  to  the  relief,  may  perhaps 
not  be  found  stated  in  so  many  terms 
in  any  case  or  in  any  dictum,  but 
many  cases  may  be  suggested  which 
probably  will  be  equally  without  any 
authority,  either  in  decision  or 
dictum.  If  a  man  hired  a  vedurino 
to  take  him  from  one  place  to 
another,  and  found  that  the  vetiurino, 
after  he  had  accepted  the  hiring,  had 
conspired  with  his  servant  to  rob  him 
on  the  way,  he  would  be  entitled  to 
get  rid  both  of  the  vetiurino  and  the 
servant.  So,  if  a  man  sits  down  to  a 
tavern  or  osteria  to  play  at  cards  or 
dice  with  anotlier  man  for  a  stake, 
and  finds  that  his  opponent  has  pro- 
vided himself  with  cogged  dice  or 
marked  cards,  the  man  would  be  im- 
mediately entitled  to  leave  the  table, 
and  would  not  be  obliged  to  procure 
proper  cards  or  honest  dice.  1  am 
not  aware,  however,  of  any  express 
decision  on  either  of  the  cases  I  have 
suggested. 

I  am  of  opinion  that  where  any- 
thing in  the  nature  of  a  fraud  in  the 
eye  of  this  court  is  committed,  a  man 
has  the  right  at  once  to  sever  the  con- 


655 


§798. 


TTTK    LAW    OF    AGENCY. 


[Book  iV, 


§  798.  How  when  Agent  in  secret  Employment  of  the  other 
Party.  As  has  been  seen,  an  agent  who  is  relied  upon  to  exei> 
cise,  in  behalf  of  his  principal,  his  skill,  knowledge  or  influence, 


nection;  and  I  cannot  bring  my  mind 
to  doubt,  that  if  you  find  a  case 
where,  in  the  contemplation  of  this 
court,  a  principal  is  conspiring  with 
the  servant  of  the  other  principal  to 
cheat  his  master  in  the  execution  of  a 
contract,  then  in  common  sense, 
common  justice,  common  honesty, 
and  in  this  court,  the  master  is  enti- 
tled to  say,  '  I  will  have  nothing 
more  to  do  with  the  business;'  and  in 
this  court  a  surreptitious  sub-contract 
with  the  agent  is  regarded  as  a  bribe 
to  him  for  violating  or  neglecting  his 
duty." 

Sir  G.  Mellish,  L.  J.  said:  "  I 
am  not  quite  certain  that  I  go  the  full 
length  to  which  the  Lord  Justice  has 
i,^one  in  thinking  that,  because  a 
person  has  been  party  to  a  fraudulent 
act  of  this  kind  after  the  contract  was 
made,  the  mere  fact  of  his  having 
betn  guilty  of  such  fraudulent  con- 
duct, supposing  that  a  full  remedy 
for  the  fraud  could  be  other- 
wise obtained,  would  entitle  the 
other  party  to  say,  '  Because  you 
acted  fraudulently,  therefore  I  will 
have  nothing  more  to  do  with  you, 
and  I  will  not  carry  out  my  contract 
with  you.'  I  am  not  aware  of  any 
authority  which  has  gone  to  that 
extent.  As  far  as  I  know,  the  con- 
sequence of  fraud  is,  that  the  court 
will  see  that  the  party  defrauded 
obtains,  as  far  as  can  be  given,  full 
redress  for  the  fraud,  and  I  have 
thought  it,  therefore,  necessary  on 
this  part  of  the  case  to  consider 
whether  the  plaintiffs  could  be 
relieved  from  the  consequences  of 
this  fraud  by  anything  short  of  the 
relief  which  the  Vice  Chancellor  has 
given  to  them. 

Now  I  do  not  think  it  necessary  to 


give  a  conclusive  opinion  whether  at 
law  there  would  be  a  defense  on  the 
ground,  that  by  the  act  of  the  defend- 
ants, the  performance  of  the  contract 
has  been  rendered  impossible.  No 
doubt  it  is  a  clear  principle  of  law, 
that  if  by  any  act  of  one  of  the 
parties,  the  performance  of  a  contract 
is  rendered  impossible,  then  the  other 
■  side  may,  if  they  choose,  rescind  the 
contract,  and,  certainly,  according  to 
the  case  of  Planche  v.  Colburn,  8 
Bing.  14,  and  other  cases,  it  appears 
sufficient  if  the  contract  cannot  be 
performed  in  the  manner  stipulated, 
though  it  may  be  performed  in  some 
other  manner  not  very  different. 
Still  there  may  be  a  question  of  law 
in  a  case  of  this  kind  as  to  how  far 
the  certificate  of  the  engineer  would 
be  considered  so  much  of  the  essence 
of  the  contract  that  the  plaintiffs, 
having  been  deprived  of  that,  would 
be  entitled  at  law  to  rescind  the  con- 
tract. But  whether  it  is  so  or  not,  I 
am  clearly  of  opinion  that  if  any 
fraudulent  misconduct  of  the  defend- 
ants in  entering  into  an  agreement 
with  Sir  Charles  Bright,  which  had 
the  effect  of  making  it  impossible  to 
keep  him  as  a  disinterested  engineer 
— if  by  that  it  is  rendered  impossible 
that  the  plaintiffs  can  have  the  full 
benefit  of  the  contract,  then  it 
appears  to  me  that  there  is  sufficient 
to  enable  them  to  rescind  the  con- 
tract." 

See,  also,  Atlee  v.  Fink,  75  Mo. 
100,  42  Am.  Rep.  385,  where  an 
agreement  secretly  made  by  a  lumber 
dealer  with  one  employed  to  super- 
vise the  erection  of  buildings  for 
another  and  to  pass  upon  accounts 
for  materials,  but  not  to  make  pur- 
chases,  by  which  the  lumber  dealer 


656 


Chap.VlL]      LIABILITY  OF  THIRD  PERSON  TO  PRLN'CTPAL.  §  799. 

will  not  be  permitted  without  his  principal's  full  knowledge  and 
consent,  to  undertake  to  represent  the  other  party  also  in  the 
same  transaction.'  Such  conduct  is  a  fraud  upon  his  principal, 
and  not  only  will  the  agent  not  be  entitled  to  compensation  for 
services  so  rendered,'  but  the  contract  or  dealings  made  or  had 
by  the  agent,  while  so  acting  also  for  the  other  party  without  the 
knowledge  or  consent  of  the  principal,  are  not  binding  upon  the 
latter,  and  if  they  still  remain  executor}'-,  he  maj'  repudiate  them 
on  that  ground,  or  if  they  have  been  executed  in  whole  or  in 
part,  he  may  by  acting  promptly  and  before  the  rights  of  inno- 
cent parties  have  intervened,  restore  the  consideration  received, 
rescind  the  contract  and  recover  back  the  property  or  rights  with 
which  he  has  parted  under  it.* 

It  makes  no  difference  that  the  principal  was  not  in  fact 
injured,*  or  that  the  agent  intended  no  wrong,  or  that  the  other 
party  acted  in  good  faith  ;  the  double  agency  is  a  fraud  upon  the 
principal  and  he  is  not  bound.* 


agreed  to  pay  him  a  commission  on 
sales  made  to  the  employer  through 
his  influence,  was  held  void  aa 
against  public  policy. 

So  where  a  secret  gratuity  is 
given  to  the  agent  with  the  intention 
of  influencing  his  mind  in  favor  of 
the  giver  of  the  gratuity,  and  the 
agent  on  subsequently  entering  into  a 
contract  with  such  giver  on  behalf  of 
his  principal,  is  actually  influenced 
by  the  gratuity  in  assenting  to  stipu- 
lations prejudicial  to  the  interests  of 
his  principal,  although  the  gratuity 
was  not  given  directly  with  relation 
to  that  particular  contract,  the  trans- 
action is  fraudulent  as  against  the 
principal  and  the  contract  is  voidable 
at  his  option.  Smith  «.  Sorby,  3  Q. 
B.  Div.  552.  28  Eng.  Rep.  455.  Even 
though  the  agent  was  not  in  fact  in- 
fluenced against  his  principal's  inter- 
ests, the  contract  is  corrupt.  Har 
rington  v.  Victoria  Graving  Dock  Co. 
3  Q.  B.  Div.  549,  28  Eng.  Rep.  453. 
See  also  Bollman  v.  Loomis,41  Conn. 


581 ;  Western  Union  Tel.  Oo.  v.  Rail- 
road Co.  1  McCrary  (U.  8.  0.  0.)  418. 

See  also  Hegenmyer  v.  Marks,  87 
Minn.  6,  5  Am.  St.  Rep.  808;  Miller 
V.  Louisville,  etc,  R.  R.  Co.  83  Ala. 
274,  3  Am.  St.  Rep.  722;  note  to  Pot- 
ter's Appeal,  7  Am.  St.  Rep.  280. 

1  See  ante,  %%  66-68. 

«  See  ante,  §§  643,  644. 

*  New  York  Cent.  Ins.  Co.  v.  Na- 
tional Ins.  Co.,  14  N.  Y.  85;  Mercan- 
tile Ins.  Co.  v.  Hope  Ins.  Co.,  8  Mo. 
App.  408;  Utica  Ins.  Co.  v.  Toledo 
Ins.  Co.,  17  Barb.  (N.  Y.)  13'i;  Her- 
man V.  Martineuu,  1  Wis.  151,  60  Am. 
Dec.  368;  Wassell  v.  Reardon,  11 
Ark.  705.  54  Am.  Dec.  245;  Harrison 
e.  McHenry,  9  Ga.  164,  52  Am.  Dec. 
435;  Switzerc.  Skiles,  3  Gilm.  (111.) 
529,  44  Am.  Dec.  723. 

*New  York  Central  Ins.  Co.  «. 
National  Ins.  Co.  »upra. 

6  United  States  Rolling  Stock  Co. 
V.  Atlantic,  etc.  R.  R.  Co.,  34  Ohio 
St.  450,  32  Am.  Rep.  380. 


42 


657 


I  799.  THE    LAW    OF   AGENCY.  [Book    IV. 

6.   Condusiveness  of  Judgment  against  Agent. 

§  799.  Principal  not  bovind  by  judgment  against  Agent  to 
which  he  was  not  a  Party.  A  principal  and  his  agent  are  not  in 
privity  with  each  other  respecting  property  rights,  and  a  judg- 
ment against  the  agent  cannot  settle  the  rights  of  the  principal, 
if  he  is  not  made  a  party  to  the  action  in  which  it  was  obtained, 
and  has  not  intervened  or  appeared  therein.'  Hence  it  is  held 
that  one  whose  property  has  been  replevied,  by  a  writ  against 
his  agent,  may  retake  it  by  replevin  against  the  plaintiff  in  the 
first  suit,  even  during  the  pending  of  that  action.*  So  he  may 
maintain  trover  against  the  plaintiff  in  the  action  against  the 
agent,  and  his  right  is  not  barred  by  the  fact  that  he  acted  as  the 
attorney  for  the  agent  in  the  action  against  the  latter.* 

1  White  «.  Dolliver,  113  Mass.  400,  «  White  v.  Dolliver,  supra. 

18  Am.  Rep.  502;    Warner  v.  Com-         •  Warner  v.  Comstock,  »upra. 
stock,  55  Mich.  615.     See  Phillips  v. 
Moir,  69  Dl.  155. 

658 


ATTORNEYS    AT   LAW. 


BOOK   V. 


PARTICULAR  CLASSES  OF  AGENTS. 


CHAPTER    I. 


OP  ATTORNEYS  AT  LAW. 


%  800.  Scope  of  Chapter. 

I.   Op  the  Office. 

801.  Who    meant  by  Attorney  at 

Law. 
803.  Attorney  at  Law  defined. 

803.  Is  an  Officer  of  the  Court. 

804.  Who  may  be. 

805.  Party  may  appear  in  Person. 

806.  May  not  appear  by  Agent. 

II.  Of  the  Relation  of  Attorney 

AND  Client. 
1.  A  Relation  of  Agency. 

807.  Rules  of  Agency  govern. 

2.   How  Created. 

808.  No  formal  Power  necessary. 

III.  Appearance    presumptively 

Authorized. 

809.  Presumption  of  Authority. 

810.  This    Presumption    not    con- 

clusive. 
rV".  Implied  Authority  of  Attor- 
neys. 

811.  Has  general  Control  of  Con- 

duct of  Suit. 

812.  Same    Subject  —  What     in- 

cluded. 

818.  Same  Subject  —  What  not  in- 
cluded. 

814.  Can  not  delegate  his  Powers. 


§  815.  May  employ  Subordinates. 

816.  Authority  to   bind   Client  by 

Bonds. 

817.  Authority  to  receive  Payment. 

818.  Same  Subject  —  After  Judg- 

ment. 

819.  Same  Subject  —  What  consti- 

tutes Payment. 

820.  Authority    to    enforce    Judg- 

ment. 

V.     Duties    and    Liabilities    of 
Attorney  to  Client. 

821.  Bound  to  highest  Honor  and 

Integrity. 

833.  Duty  to  disclose  adverse  Inter- 

ests. 
8'23.  Duty  to  remain  loyal. 

834.  Duty  to  use  reasonable  Care 

and  Skill. 
825.  Same  Subject  —  Errors  in  Law 

or  Judgment. 
836.  Same  Subject — Negligence  in 

Collecting. 

827.  Same  Subject  —  Negligence  in 

bringing  Suit. 

828.  Same  Subject  —  Negligence  In 

Trial  of  Action. 

829.  Same  Subject  —  Negligence  in 

examining  Titles. 

830.  Same    Subject  —  Neglect    in 

preparing  Contracts,  «&c. 


659 


THE    LAW    OF    AGENCY. 


[Book  V. 


§  831 .  Same    Subject  —  Neglect    of 
Partners,  Clerks,  &c. 

832.  Liability  for    exceeding   Au- 

thority or  violating  Instruc- 
tions. 

833.  Liability  for  Money  collected- 

Liability  for  Interest. 

834.  Attorney  liable  though  acting 

gratuitously. 

835.  The  Measure  of  Damages. 

VI.  Liability  of  Attorney  to 

Third  Person. 

836.  Not  liable  for  Breach  of  Duty 

owing  to  Client  only. 
887.  Liable  where  he  contracts  Per- 
sonally. 

838.  Liability  for  Clerk's,  Officer's 

and  Witness'  Fees. 

839.  Liability  to  third   Person    in 

Tort. 

VII.  Liability  of  Client  to 

Attorney. 

1.  Attorney's  Right  to  Reimbursement 
and  Indemnity. 

840.  Attorney    entitled    to    Reim- 

bursement and  Indemnity. 

g.  Attorney's  Rigid  to   Compensation. 

841.  Attorney  entitled  to  Compen- 

sation. 
843.  Attorney  may  sue  for  Com 

pensation. 

a.  Where  there  was  a  special  Con- 

tract. 

843.  Parties     may     agree     upon 

Amount  of  Compensation. 

844.  Contracts  for  contingent  Com- 

pens-alion. 

845.  What  Contracts  champertous. 

846.  Such  Contracts  do  not  prevent 

Settlement  by  Client. 

847.  But    Attorney    may    recover 

from  Client. 

b.  Where  there  was  no  special  Con- 

tract. 

848.  Attorney  entitled  to  reasonable 

Value  of  his  Services. 


g  849.  What  Evidence  admissible. 

850.  What  Evidence  not  admissible. 

851.  Lack  of  Success  no  Defense. 

852.  Negligence  or  bad  Faith  may 

be  shown. 

853.  Fees  forfeited  by  Breach  of 

Trust. 

854.  How  when  Attorney  abandons 

Service. 

855.  What  will  justify  Abandon- 

ment. 
85G.  When  discharged  by  Client. 

857.  What  will  justify  Discharge. 

858.  When  Attorney's  Claim  barred 

by  Limitation. 

S.  Attorney's  Right  of  Lien. 

859.  Two  kinds  of  Lien. 

1.     The  General  or  Retaining  Lien. 

860.  General  Nature  of  this  Lien. 

861.  Declared  by  Statute  in  some 

States. 
863.   What  this  Lien  adheres  ta 

a.  Upon  Papers. 

b.  Upon  Property. 

c.  Upon  Money. 

863.  What  Charges  the  Lien    se- 

cures. 

864.  Against    what    Parties     Lien 

prevails. 

865.  How  Lien  may  be  lost. 

866.  How  Lien  may  be  waived. 

867.  Enforcement  of  Lien. 

2.     The  Special  or  Charging  Lien. 

868.  General  Nature  of  this  Li«n. 

869.  In  what  States  it  exists. 

870.  What  this  Lien  protects. 

871.  When  Lien  attaches. 

872.  To  what  Lien  attaches. 

873.  How  Lien  protected. 

874.  How  Lien  enforced, 

875.  How  Lien  lost  or  waived, 

876.  By  what  Law  governed. 

VIII.   Dealings  between  Attor- 
ney AND  Client. 

877.  In   general — Good  Faith   and 

perfect  Fairness  required. 

878.  Purchases  from,  and  Sales  to 

Client — Adverse  Purchases, 


660 


Chap.  I.] 


ATl'ORNEYS   AT   LAW. 


§801. 


§  879.  Relation     of     Attorney    and 
Client  must  exist. 

IX.  Pritilegkd  Commukications. 

880.  Confidential  Communications 

privileged. 

881.  Under    what 

privileged. 

Same  Subject. 

Relation     of 


Circumstances 


882. 
883. 


Attorney    and 


Client  must  exist. 


§  884.  Communications    must    have 
been  made  to  an  Attorney. 

885.  Privilege  is  the  Client's. 

886.  How  long  it  continues. 

887.  Attorney  may  disclose  for  hia 

own  Protection. 

X.  Termination  of  thb  RBiiA- 

TION. 

888.  By  Operation  of  Law. 

889.  By  Act  of  the  Parties. 


§  800.  Soopo  of  Chapter.  It  is  not  within  the  scope  of  this 
work,  to  go  extensively  into  the  relations  of  attorneys  at  law 
to  the  State  or  to  the  Court.  Space  will  not  permit  a  discussion 
of  this  public  side  of  their  character,  but  an  attempt  will  be 
made  to  give  some  of  the  general  rules  which  govern  their 
relation  to  their  clients  and  their  client's  business,  viewing  them 
only  in  the  character  of  private  agents. 


I. 


or  THB   OFFIOB. 

§  801.  Who  meant  by  Attorney  at  Law.  Under  the  English 
system,  legal  practitioners  are  divided  into  a  variety  of  classes, 
with  distinct  powers  and  duties,  and  some  of  these  distinctions 
have  been  recognized  or  adopted  in  several  of  the  United  States. 
As  a  rule,  however,  so  far  as  they  imply  distinct  rights  and  duties 
pertaining  only  to  distinct  classes  of  practitioners,  they  have,  in 
the  United  States  become  practically  obsolete,  and  the  same  per- 
son is  daily  seen  exercising  functions  which,  under  the  English 
system,  would  be  distributed  among  several.  Indeed,  it  is  com- 
mon for  the  same  person,  with  propriety,  to  hold  himself  out  to 
the  public  as  qualified  to  act  in  the  several  capacities  of  attorney 
and  counselor  at  law,  and  solicitor  and  counselor  in  chancery,  and 
proctor  in  admiralty.  In  common  parlance,  such  a  person  is  ordi- 
narily spoken  of  as  a  lawyer  or  more  frequently  as  an  attorney 
at  law.  For  the  purposes  of  this  chapter,  the  latter  term  will  be 
adopted,  and,  under  it,  will  be  considered  the  rules  of  law  applic- 
able to  the  relations  of  one  man  with  his  agent  or  representative 
in  law  to  whichsoever  of  the  special  classes  he  may  technically 
belong. 

661 


§  802.  THE    LAW    OF    AGENCY.  [Book  Y. 

§  802.  Attorney  at  Law  defined.  For  the  present  purposes, 
therefore,  an  attorney  at  law  may  be  defined  to  be  an  officer  of  a 
court  of  justice  who  is  qualified  to  conduct  the  cause  of  a  liti- 
gant therein.*  Although  he  may  be  and  frequently  is,  employed 
to  take  part  with  others  in,  or  to  conduct,  the  trial  only,  yet  his 
functions  are  not  confined  to  that.  In  ordinary  cases,  his  duties 
begin  with  the  commencement  of  the  legal  controversy  and  end 
only  with  its  termination.  He  is  usually  employed  before 
any  step  in  the  legal  procedure  is  taken,  and  from  that  time  on, 
he  consults  with  his  client  regarding  the  cause  of  action  or  the 
matter  of  his  defense;  he  determines  upon  the  nature  of  relief 
to  be  sought  and  the  court  in  which  the  remedy  is  to  be  pursued  ; 
he  prepares  the  necessary  preliminary  papers  and  directs  the  issue 
and  service  of  process;  he  prepares,  files  and  serves  the  plead- 
ings; examines  and  consults  with  the  witnesses;  takes  minutes 
of  their  expected  testimony,  and,  usually,  directs  the  issue  and 
service  of  the  process  for  their  attendance  at  the  trial ;  he  makes 
or  resists  the  interlocutory  motions  and  applications  incident  to 
the  progress  of  the  cause  ;  he  prepares  the  briefs  and  papers ; 
gives  the  necessary  notice  and  procures  the  cause  to  be  placed 
upon  the  calendar  for  trial ;  he  conducts  the  trial  and  attends  to 
the  subsequent  motions  and  hearings;  he  directs  the  issue  and 
service  of  the  process  to  enforce  the  judgment ;  and  receives  the 
proceeds  and  satisfies  the  judgment  on  the  record. 

In  addition  to  these  duties,  incident  to  the  trial  of  causes,  the 
attorney  at  law,  in  practice,  undertakes  a  great  variety  of  duties 
having  a  very  remote,  if  any,  connection  with  the  business  of 
courts.  Thus  he  acts  as  a  conveyancer  or  scrivener,  putting  into 
appropriate  form  the  agreements  and  undertakings  of  his  clients ; 
he  searches  records,  makes  abstracts  of  title,  and  gives  opinions 
thereon ;  he  gives  advice  and  counsel  as  to  legal  questions  sub- 
mitted to  him  ;  he  attends  to  the  making  of  loans,  and  the  per- 
fecting and  recording  of  securities  ;  he  collects  and  secures  claims ; 
and  performs  many  duties  which,  in  the  multiform  phases  of 
business  transactions,  require  the  attention  of  one  skilled  in  the 
knowledge  and  application  of  legal  principles. 

§  803.  Is  an  Ofiacer  of  the  Court.  He  is  not  a  private  agent 
only,  but  he  is  also  an  otficer  of  the  court,   owing  to  it  the  dis- 

'  See  Weeks  on  Attorneys,  §  28,  et  aeq. 
662 


Chap.  L] 


ATTORNEYS    AT    LAW. 


§804. 


charge  of  a  variety  of  high  and  important  duties,  designed  and 
imposed  for  the  furtherance  of  justice  and  the  legal  and  orderly 
conduct  of  its  business.  For  a  violation  of  these  duties,  as  well 
as  for  others  which  are  due  more  directly  to  his  client,  he  is  lia- 
ble to  be  suspended  or  removed  from  his  office. 

Whether  his  office  is  to  be  regarded  as,  in  all  respects,  a  public 
one,  is  a  question  upon  which  the  courts  are  not  fully  agreed, 
but  he  is,  at  all  events,  a  quasi  officer  of  the  State  whose  justice 
is  administered  by  the  court.' 

§  804.  Who  may  be.  As  an  officer  of  the  court,  the  power 
of  the  attorney  to  act  as  such  depends  upon  the  license  or  permission 
of  the  court.  The  persons  to  whom  such  license  may  be  granted, 
and  the  terms  upon  which  it  shall  be  granted,  are  usually  pre- 
scribed by  the  legislatures  of  the  States.  These  provisions  are 
generally  acquiesced  in  by  the  courts,  but  whether  they  are  bind- 
ing upon  the  courts  has  been  doubted.* 


1  "The  bar  is  no  unimportant  part 
of  the  court;  and  its  members  are 
officers  of  the  court.  Thomas  v. 
Steele,  23  Wis.  207;  Cothren  v.  Con- 
naughton,  24  Id.  134.  See  Bacon's 
Abr.  Attorney  H. ;  1  Tidds  Pr.  60; 
3  Black.  25;  1  Kent,  306;  Ex  parte 
Garland,  4  Wall.  833.  And  if  officers 
of  the  court,  certainly,  in  some  sense, 
officers  of  the  state  for  which  the 
court  acts.  Re  Wood.  Hopk.  6. 
This  is  not  really  denied  in  (In  the 
matter  of  Oaths,  &c.)  20  Johns.  492, 
decided  in  the  same  year.  And  if  it 
were,  we  have  no  doubt  that  the  Chan- 
cellor was  correct,  and  that  attorneys 
and  counselors  of  a  court,  though  not 
properly  ^uJfo'c  officers  are  quasi  offi- 
cers of  the  state  whose  justice  is  ad- 
ministered by  the  court."  Ryan,  C. 
J  ,  in  Matter  of  Mosness,39  Wis,  509, 
20  Am.  Rep.  55. 

"An  attorney  at  law  is  not  indeed, 
in  the  strictest  sense,  a  public  officer. 
But  he  comes  very  near  it.  As  was 
said  by  Lord  Holt,  '  the  office  of  an 
attorney  concerns  the  public,  for  it  is 
for  the  administration  of  justice.' 
White's  case,   6  Mod.  18;  Bradley's 


case,  7  Wall.  364,  378,  379."  Gray, 
C.  J.,  in  Robinson's  case,  131  Mass. 
376,  41  Am.  Rep.  289.  See  also 
Austin's  case,  5  Rawle  (Penn.)  191, 
28  Am.  Dec.  657. 

*  In  a  Wisconsin  case  it  is  said  by 
Ryan,  C.  J.,  "  The  constitution 
makes  no  express  provision  for  the 
bar.  But  it  establishes  courts, 
amongst  which  it  distributes  all  tlie  ju- 
risdiction of  all  of  the  courts  of  West- 
minster Hall,  in  equity  and  at  com- 
mon law.  Putnam  v.  Sweet,  2  Pin. 
303.  And  it  vests  in  the  courts  all 
the  judicial  power  of  the  state.  The 
constitutional  establishment  of  such 
courts  appears  to  carry  with  it  the 
power  to  establish  a  bar  to  practice  in 
them.  And  admission  to  the  bar  ap- 
pears to  be  a  judicial  power.  It  may 
therefore  become  a  very  grave  ques- 
tion for  adjudication  here,  whether 
the  constitution  does  not  entrust  the 
rule  of  admission  to  the  bar,  as  well 
as  of  expulsion  from  it,  exclusively  to 
the  discretion  of  the  courts."  In 
Matter  of  Goodell,39  Wis.  232,  239,  20 
Am.  Rep.  42. 


663 


§  805.  THE    LAW    OF    AGENCY.  [Book    Y. 

While  the  conditions  fixed  in  the  several  States  are  not  uni- 
form, the  provision  is  common,  if  not  universal,  that  the  appli- 
cant shall  be  a  citizen  of  the  State ;  that  he  shall  be  of  the  age  of 
twentj-one  years  or  upwards,  that  he  shall  be  of  good  moral  char- 
acter, and  that  he  shall  appear  to  possess  sufficient  legal  learning 
and  ability. 

Whether  women  are  entitled  to  be  admitted  to  the  bar  is  a 
question  which  has  been  discussed  under  various  statutes,  and 
wliile  their  right  has  in  some  cases  been  denied,  the  tendency  of 
modern  legislation  and  of  its  judicial  interpretation  is  to  regard 
them  as  eligible.' 

An  alien  can  not  be  admitted  under  a  statute  providing  for  the 
admission  of  "citizens,"*  nor  can  a  non-resident  of  the  State 
claim  the  right  to  a  license.' 

§  805.  Party  may  appear  in  Person.  In  every  criminal  pros- 
ecution the  right  of  the  accused  to  counsel  for  his  defense  is 
declared  by  the  Constitution,  but  the  accused  may  none  the  less 
conduct  his  own  defense  if  he  prefers ;  but  as  a  rule  the  defense 
cannot  be  conducted  by  both  the  accused  and  his  counsel.* 

In  civil  cases,  there  is  no  such  constitutional  guarantee  of  coun- 
sel. There  is,  however,  in  the  Constitutions  of  many  of  the 
States  a  declaration  of  the  party's  right  to  conduct  his  suit  in  per- 
son or  by  attorney. 

§806.  May  not  appear  by  Agent.  But  under  a  constitutional 
provision  that  any  suitor  "shall  have  the  right  to  prosecute  or 
defend  his  suit,  either  in  his  own  proper  person  or  by  an  attorney 
or  agent  of  his  choice,"  the  Supreme  Court  of  Michigan  held 
that  a  party  can  not  appear  in  a  court  of  record  by  an  agent  who 
is  not  an  attorney  duly  licensed  to  practice  as  such.* 

'  They  are  not  eligible    in  Massa-  of  Columbia,  Maine,   Ohio,   Illinois, 

chusetts.     Robinson's  case,  131  Mass.  Indiana,  Kansas,  Minnesota,  Califor- 

376,    41  Am.    Rep.    239;  Oregon,  In  nia,  Nebraska,  Washington  Territory 

re  Leonard  12  Oreg.  93,  53  Am.  Rep.  and  Pennsylvania. 
323;  New  York,  see  note  to  53  Am.  «  Matter  of  O'Neill,  90  N.  Y.  584. 

Rep.  p.  325.     They  are  admitted  in  »  Matter  of  Mosness,39  Wis.  509,  20 

Connecticut,  Matter  of  Hall,50  Conn,  Am.  Rep.  55.     In  this  case  it  is  said 

131,  47  Am.    Rep.    625;   Wisconsin,  that  the  legislature  has  no  power  to 

Matter  of  Goodell,  48  Wis.  693,  and,  authorize  nonresidents  to  be  admitted, 
says  Judge  Landon  in  a  case  referred  *  See  Bishop's  Crim.  Proc.  §962. 

to  in  the  note  above  cited,  in  Iowa,  •  Cobb  ®.  Judge  of  Superior  Court, 

Missouri,   Michigan,    Utah,   District  43  Mich.  289. 

664 


Chap.  I.]  ATTOENETB    AT   LAW.  §  808. 

II. 
OF   THE   RELATION   OF   ATTORNEY   AND   CLIENT. 

1.  A  Relation  of  Agency. 

§  807.  Rules  of  Agency  govern.  The  relation  of  attorney 
and  client  is  a  relation  of  agency,  and,  in  its  general  features,  is 
governed  by  the  same  rules  which  apply  to  other  agencies. 
Many  of  the  applications  of  these  rules  to  the  case  of  attorneys 
have  been  noted  in  the  general  development  of  the  principles  of 
agency,  to  which  the  earlier  portion  of  this  work  has  been 
devoted ;  but  the  importance  of  the  subject,  and  the  large  num- 
ber of  special  applications,  seem  to  warrant  a  more  extended 
examination  in  this  place. 

2.  How  Created. 

§  808.  Wo  formal  Power  necessary.  It  was  formerly  con- 
sidered necessary  that  the  authority  of  the  attorney  to  appear  for 
his  client  should  be  conferred  by  a  formal  warrant  of  attorney,* 
but,  although  there  are  many  reasons  of  convenience  and  pro- 
priety, if  not  of  safety  and  protection  to  the  parties,  which  com- 
mend this  as  a  desirable  course  to  be  pursued  in  many  cases,  it 
can  no  longer  be  regarded  as  necessary.  In  practice,  the  mere 
request  of  the  client  is  the  common  method,  and  is  undoubtedly 
a  sufficient  authorization,  in  the  absence  of  a  statute  or  rule  of 
procedure  requiring  more.* 

And  the  rule  may  be  stated  still  more  broadly,  for  an  express 
request  is  not  indispensable,  but  the  attorney's  authority  may  be 
inferred  from  the  words  or  conduct  of  his  client,  or  his  unauthor- 
ized appearance  and  action  may  be  subsequently  ratified  and  con- 
firmed. In  this  respect,  the  ordinary  rules  which  govern  the 
appointment  of  agents  generally,  apply,  and  the  same  kind  of 
evidence  which  would  be  admissible  to  establish  the  authority  of 
any  agent  may  be  used  to  establish  the  authoritj'^  of  an  attorney.' 

'  McAlexander  t.   "Wri2;ht,  3  T.  B.  Bunton  «.  Lyford,  37  N.  H   512,  75 

Mod.  (Ky.)18a,  16  Am.  Dec.  93.  Am.  Dec.  144;    Henck  ®.  Todhunter, 

«  Smith  V.  Black,  51  Md,  247;  Eick-  7  H.  «fc  J.  (Md.)  275,  16  Am.    Dec. 

man  ®.  Troll,  29  Minn.  124;  Manches-  300. 

ter  Bank  «.  Fellows,  28  N.  H.  802;  3  See  ante,  §§  109, 182. 

665 


§  809.  THE  LAW  OF  AGENCY.  [Book  V. 

III. 
APPEARANCE  PRESUMPTIVELY  AUTHORIZED. 

8  809.  Presvimption  of  Authority.  An  attorney,  as  has  been 
seen,  is  an  officer  of  the  court,  and  is  responsible  to  the  court  for 
the  propriety  of  his  professional  conduct,  and  for  the  proper 
exercise  of  his  privileges  as  such.  It  is  the  presumption  of  the 
law  that  he  does  not  violate  his  duty,  or  impose  upon  the  court 
with  a  false  appearance  of  authority.  Wherever,  therefore,  a 
regularly  admitted  attorney  appears  for  a  party  in  a  cause,  the 
presumption  is  that  such  appearance  is  authorized.'  And  this 
rule  applies  whether  the  attorney  appears  for  a  natural  person  or 
a  corporation.' 

8  810.  The  Prestimption  not  conclusive.  This  presumption, 
however,  is  not  conclusive,  but  the  fact  of  the  authority  may,  in 
a  proper  case,  be  inquired  into.  The  occasion  for  this  inquiry 
may  arise  under  several  states  of  fact.  Thus  the  authority  of 
the  attorney  may  be  questioned  during  the  pendency  of  the  suit 
in  which  he  assumes  to  appear,  and  this  may  be  done  either  by 
his  alleged  client,  or  by  the  opposite  party.  Or  the  question  of 
his  authority  may  arise,  either  directly  or  collaterally,  in  a  subse- 
quent action  in  which  the  judgment  obtained  upon  his  appear- 
ance may  be  called  in  question. 

a.  While  Proceedings  are  Pending. 
1.  Opposite  party  may  require  jproduction  of  authority.  The 
opposite  party  in  a  pending  suit,  having  reasonable  grounds  to 
doubt  the  attorney's  authority  to  appear,  may  apply  to  the  court 
to  require  him  to  produce  his  authority.  But  before  the  court 
will  interfere  in  such  a  case,  the  party  making  the  application 

lOsbornu  The  United  States  Bank,  Miss,  567;  Dorsey  v.  Kyle.    30  Md. 

9  Wheat.  (U.S.)  738;  Schlitz  D.Meyer,  512,  96   Am.  Dec.  617;  Hamilton  v. 

Gl  Wis.   418;  Low  v.  Settle,   22  W.  Wright,  37  N.  Y.  502;  Proprietors  c. 

Va.  387;  Esley  t>.   People,   23  Kan.  Bishop,  2  Vt.  231;  Thomas  v.  Steele, 

510;  PiggotttJ.  Addicks,  3  G.  Greene  22  Wis.   207;  Pillsbury   o.    Dugan.  9 

(Iowa)  427,  56  Am.  Dec.  547;  Denton  Ohio  117;  Leslie  e.   Fischer,  62   IlL 

T.   Noyes,  6  Johns.    (N.   Y.)  208,  5  118;  Hager  «.  Cochran,  66  Md.  253; 

Am.  Dec'.    237;    Arnold   v.   Nye,  23  Norberg  u  Heineman,  59  Mich.  210. 

Mich.  286;  Harshey  v.  Blackmarr,  20  «  Penobscot  Boom  Co.  v.  Lamson, 

Iowa,  161,'  89  Am.  Dec.   520;  Hardin  16  Me.  224,  33  Am.  Dec.  656. 
V.    Ho-YoPo-Nubby's     Lessee,     27 

666 


Chap.  I.] 


ATTOENETS    AT   LAW. 


§810. 


must  adduce  some  facts  showing  or  tending  to  show  that  the 
attorney  does  not  in  fact  possess  the  authority  which  he  assumes 
to  exercise.  The  court  will  not  proceed  in  such  a  case  upon  li<;ht 
or  frivolous  grounds,  but  where  the  facts  alleged  raise  a  reason- 
able presumption  that  the  attorney  is  acting  in  the  case  without 
authority  from  the  party  he  assumes  to  represent,  the  court  will 
require  him  to  produce  his  authority.' 

This  showing  is  usually  made  upon  afiSdavits,'  and  the  burden 
of  proof  rests  upon  him  who  denies  the  authority.*  The  ques- 
tion should  be  raised  upon  the  earliest  practicable  opportunity. 
It  cannot  be  raised  for  the  first  time  on  appeal.* 

2.  What  evidence  sujicient.  In  some  cases,  the  statement  of 
the  attorney  that  he  does,  in  fact,  represent  the  party  for  whom 
he  assumes  to  act,  has  been  held  sufficient,"  and  the  affidavit  of 
the  attorney  that  he  was  duly  authorized,  either  by  the  party  or 
his  agent,  would  be  competent  proof  of  his  authority.'  So, 
where  the  alleged  client  resides  at  a  distance,  letters  coming  or 
purporting  to  come,  in  due  course  from  himself  or  his  agent, 
authorizing  the  commencement  of  the  suit  would  be  sufficient.' 


1  Tally  V.  Reynolds,  1  Ark.  99,  31 
Am.  Dec.  737;  Keith  v.  Wilson,  6 
Mo.  435,  35  Am.  Dec.  443;  McAlex- 
ander  v.  Wright.  3  T.  B.  Mon.  (Ky.) 
189,  16  Am.  Dec.  93;  West  v.  Hous- 
ton, 3  Harr.  (Del.)  15;  McKierman  v. 
Patrick,  4  How.  (Miss.)  333;  People 
V.  Mariposa  Co.  39  Cal.  683;  Leslie  v. 
Fischer,  62  111.  118;  Hamilton  v. 
Wright,  37  N.  T.  502. 

Showing  of  authority  will  not  be 
required  on  mere  demand.  Norberg 
V.  Heinemau,  59  Mich.  210. 

8  Dockham  v.  Potter,  27  La  Ann. 
73;  Tally  ».  Reynolds,  supra. 

3  Thomas  v.  Steele,  22  Wis.  207; 
Schlitz  V.  Meyer,  61  Wis.  418;  Low 
V.  Pel  tie,  23  W.  Va.  387;  Esley  v. 
People,  23  Kan.  510. 

<  State  V.  Carothers,  1  G.  Greene 
(Iowa)  4G4. 

6  Penobscot  Boom  Co.  Lamson,  16 
Me.  224,  33  Am.  Dec.  656;  Manches- 
ter Bank  v.  Fellows,  28  N.  H.  802; 
Bridgton  v.  Bennett,  23  Me.  430. 


•  Eickman  v.  Troll,  29  Minn.  124. 
Hughes  V.  Osborn,  42  Ind,  450. 

»  Hardin  v.  Ho-Yo-Po-Nubby's 
Lessee,  27  Miss.  567.  "  The  presump- 
tion," said  the  court  in  this  case,  at  p. 
579,  "is  in  favor  of  his  authority, 
and  though  he  may  be  required  to 
show  it,  yet  if  he  acts  in  good  faith 
and  the  want  of  authority  is  not  mani- 
fest, he  will  not  be  held  to  have  acted 
without  authority,  because  it  is  not 
shown  according  to  strictly  legal  rules. 
If  this  were  not  so,  the  greatest  in- 
convenience in  practice  would  con- 
tinually occur  both  to  clients  and  at- 
torneys; for  suits  are  frequently 
instituted  by  attorneys  under  the  au- 
thority of  letters  from  their  clients, 
who  are  strangers,  and  whose  hand- 
writing is  unknown  to  them,  and 
could  not  be  proved  without  great 
trouble  and  delay.  If  required  in 
such  a  case  to  produce  his  authority, 
the  production  of  the  letter,  though 
ha  mifht  be  wnable  to  prove  the  hand- 


667 


§  810.  THE    LAW    OF    AGENCY.  [JJook  V. 

3.  Client  may  dispute  authority.  It  has  been  held  in  some 
cases,  that  an  appearance  bj  an  attornej  binds  the  party  for 
whom  he  appears,  whether  the  attorney  was  employed  by  the 
party  or  not,*  and  that  the  only  remedy  of  the  party,  in  such  a 
case,  was  by  a  proceeding  against  the  attorney.*  That  this  is  a 
harsh  rule,  and  that  it  affords  in  many  cases  no  security  whatever 
to  the  party,  is  too  manifest  to  require  argument.  That  it  is 
opposed  to  every  principle  of  the  law  of  agency,  binding  a  party 
who  has  neither  expressly  authorized  or  tacitly  consented  to  the 
appearance,  is  equally  obvious,  and  a  number  of  courts  have 
sought  to  modify  it,  by  holding  it  to  be  applicable,  only  in  cases 
where  the  attorney  is  pecuniarily  responsible.*  "While  the  rule, 
thus  modified,  would  afford  relief  in  some  cases,  it  is  also  emi- 
nently unsatisfactory  and  unreasonable.  No  rule  of  law  ought 
to  rest  upon  the  uncertain  and  shifting  conditions  of  any  man's 
pecuniary  responsibility. 

And  it  is  believed  that  no  such  distinction  can  be  sustained. 
A  party  may,  by  his  laches,  deprive  himself  of  the  right  to 
object,  or  he  may,  by  acquiescence,  give  apparent  validity  to  an 
unauthorized  appearance,  but  these  cases  stand  upon  other  and 
familiar  ground.  The  true  rule  is  believed  to  be  that,  while  the 
appearance  of  a  regularly  admitted  attorney  is  presumed  to  be 

writing,  would  be  sufficient,  and  so  Peck,  17  Vt.  802;  Denton  v.  Noyes, 

of  a  letter  written  by  a  party  pur-  6  Johns.  (N.  Y.)  298,  5  Am.  Dec.  237. 

porting  to  be  the  agent  of  the  plain-  This  case  has  been  followed  in  New 

tiff.    All  that  is  required  to  be  shown  York,   though  often    under  protest. 

in  such  cases  in  the  first  instance,  is,  See  Meacham  v.   Dudley,   6   Wend, 

that  the  attorney  has  acted  in  good  515;  Ingalls  v.    Sprague,    10   Wend, 

faith  and  under  an  authority  appear-  673;  Gaillard  c.  Smart,  6  Cow.  386; 

ing  to  be  genuine, though  informal.  It  Acker  v.  Ledyard,  8  N.  Y.  65;  Brown 

then  devolves  upon  the  parly  impeach-  v.  Nichols,  42  N.  Y.    26;  Everett  v. 

ing  the  authority,  to  show  by  positive  Warner  Bank,  58  N.  H.  340;  Cyphert 

proof,  that  it  is  invalid,  and  insuffl-  v.  McLune,  22  Penn.    St,   195;  Eug- 

cient  in  substance."    To  same  effect,  land  v.  Garner,  90  N.  C.  197;  Univer- 

eee  Savery  v.   Savery,   8   Iowa,  217;  sity  r.  Lassiter,  83  Id.   38;  Dorsey  ». 

Busht).  Miller,  13  Barb.  (N.  Y.)  481;  Kyle,  30  Md.  512,  96  Am.    Dec.  617. 
Grignon  t).  Schmitz,  18  Wis.  620.  «  Anonymous,  1  Salk.  86;  Denton 

This  presumption  does  not  apply  v.  Noyes,  mpra;  Bunton  v.    Lyford, 

to  inferior  courts.  37  N.  H.  512,  75  Am.  Dec.  144;  Mun- 

»  Abbott  v.  Dutton,   44  Vt.  546,  8  nikuyson  v.  Dorsett,  2  H.  &  G.  (Md.) 

Am.  Rep.  394;  St.  Albans  ».  Bush,  4  878;  Dorsey  v.  Kyle,  supra. 
Vt.  58,23  Am.  Dec.   246;  Spaulding  s  Anonymous,    1  Salk.  86;  Denton 

«.    Swift,   18  Vt.   214;   Newcomb  «.  e.  Noyes,  iupra. 

f^68 


Chap.  I.] 


ATT0KNEY8   AT   LAW. 


§810. 


authorized,  this  presumption  is  not  conclusive  upon  a  party  who 
has  given  no  authority  or  color  of  authority  for  it,  and  that  the 
proceeding  taken  by  the  unauthorized  attorney  will  be  suspended, 
or  a  judgment  obtained  upon  his  unauthorized  appearance  or 
consent,  will  be  vacated  by  the  court  upon  a  timely  application 
of  the  party  for  whom  the  attorney  assumed  to  act.'  This  relief 
is  usually  obtained  by  motion  to  the  court  showing  the  facts,  or, 
if  the  defect  appear  upon  the  record,  by  writ  of  error,  and  not 
by  audita  querela.* 

b.  In  Actions  upon  the  Judgment. 
1.  Foreign  Judgments.  The  rule  is  now  well  settled  that  in 
actions  brought  upon  judgments,  recovered  in  other  states  or 
countries,  it  is  competent  for  the  defendant  to  show,  notwith- 
standing any  recitals  in  the  judgment  record  to  the  contrary,  that 
he  was  not  in  fact  served  with  process,  and  that  the  appearance 
entered  for  him  by  the  attorney  was  unauthorized.'  This  rule 
does  not  conflict  with  the  Constitution  of  the  United  States,  for 
it  is  only  when  the  court  had,  in  fact,  jurisdiction  of  the  cause. 


'  Harshey  t>.  Blackraarr,  20  Iowa, 
161,  89  Am.  Dec.  529;  Marvel  v. 
Manouvrier,  14  La.  Auu.  3,  74  Am. 
Dec.  424;  Sherrard  v.  Nevius,  2  Ind. 
241,  52  Am  Dec  50S;  Wiley  u  Pratt, 
23  Ind.  633;  Brinkman  v.  Shaffer,  23 
Kan.  528;  Reynolds  v.  Fleming,  30 
Kan.  106,  46  Am.  Rep.  88;  Crichfield 
V.  Porter,  3  Ohio,  518;  DeLouia  v. 
Meek,  2  G.  Greene,  (Iowa)  55,  50  Am. 
Dec.  491;  Ridge  v.  Alter,  14  La.  Ann. 
866;  Hefferman  v.  Burt,  7  Iowa,  321, 
71  Am.  Dec.  445. 

»  Arno  V.  Wayne  Circuit  Judge,  42 
Mich.  362,  where  a  default  entered 
for  not  replying  to  a  plea  filed  by  un- 
authorized attorney  was  set  aside  on 
motion.  Where  an  attorney  brings 
an  action  without  the  authority  of 
the  plaintiff,  it  will  be  stayed  on  mo- 
tion of  plaintiff  without  costs.  Rey. 
nolds  V.  Howell,  L.  R.  8  Q.  B.  398.  6 
Eng.  Rep.  129.  Remedy  is  by  appli- 
cation direct  to  the  court  which  ren- 


dered the  judgment,  or  by  a  writ  of 
error,  and  not  by  audita  querela. 
Abbott  c.  Dutton,  44  Vt.  546,  8  Am. 
Rep.  394;  Spaulding  e.  Swift,  18  Vt. 
214. 

3  Gleason  v.  Dodd,  4  Mete.  (Mass. ) 
833;  Phelps  v.  Brewer,  9  Gush. (Mass.) 
890;  Carleton  v.  Bickford,  13  Gray 
(Mass.)  591;  McDermott  ».  Clary,  107 
Mass.  501;  Gilman  v.  Oilman,  126 
Mass.  26,  30  Am.  Rep.  646;  Mast  in  v. 
Gray,  19  Kan.  458,  27  Am.  Rep.  149; 
Norwood  V.  Cobb,  24  Tex.  651 ;  Star- 
buck  V.  Murray,  5  Wend.  (N.Y.)  148, 
21  Am.  Dec.  172;  Aldrich  v.  Kinney, 
4  Conn.  380,  10  Am.  Dec.  151 ;  Fer- 
guson V.  Crawford,  70  N.  Y.  25o,  26 
Am.  Rep.  589;  Latterett  v.  Cook,  1 
Iowa  1.  63  Am.  Dec.  428;  Baltzell  v. 
Nosier,  1  Iowa,  588,  63  Am.  Dec. 
466;  Harshey  w.  Blackmarr,  20  Iowa, 
101,  89  Am.  Dec.  520;  Rape  v.  Hea- 
ton,  9  Wis.  328,  76  Am.  Dec.  269. 


669 


§  811.  THE    LAW    OF    AGENCY.  [Book    V. 

and  of  the  parties,  that  its  judgment  is  entitled  to  full  faith  and 
credit.' 

2.  Domestic  Judgments.  Some  doubt  has  been  raised  whether 
this  rule  applies  also  to  domestic  judgments,  but  the  later  and 
better  considered  cases  hold  that  there  is  no  distinction,  and  that 
any  judgment  rendered  without  jurisdiction,  when  assailed 
directly,  may  be  impeached,  and  that,  in  doing  so,  anything  con- 
tained in  the  record  purporting  to  give  or  prove  jurisdiction, — 
as  the  appearance  of  an  attorney, — may  be  contradicted  by  any 
evidence,  extrinsic  as  well  as  intrinsic,  and  may  be  shown  to  be 
untrue  and  false.' 

lY. 

IMPLIED    AUTHORITY    OF    ATTORNEY. 

§  811.  Has  general  Control  of  Conduct  of  Suit.  A  party  em- 
ploys an  attorney  to  conduct  and  manage  his  cause  in  court 
because  he  himself  lacks  the  learning,  experience  and  ability 
necessary  to  its  successful  prosecution,  and  because  he  believes 
that  the  attorney  possesses  these  qualifications.  The  object 
sought  is  the  prosecution  or  defense  of  the  cause,  and  the  author- 
ity to  accomplish  this  is  confided  to  the  attorney.  As  in  other 
cases,  this  authority  must  carry  with  it  all  the  incidental  and 
auxiliary  powers  which  are  reasonable  and  proper  to  carry  the 
main  power  into  effect.  Much  of  the  procedure  in  the  case  is 
governed  by  rules  of  court  with  which  the  attorney  is  familiar, 
and  which  it  is  his  duty  to  observe.  The  orderly  conduct  of  the 
cause  requires  that  the  settled  course  of  practice  shall  be  adhered 
to,  with  which  the  attorney,  and  not  the  client,  is  presumed  to 
be  acquainted. 

When,  therefore,  a  party  puts  his  cause  into  the  hands  of  an 
attorney,  the  latter  is  necessarily  vested  with  large,  if  not  exclu- 
sive authority,  to  control  the  conduct  and  management  of  the 
suit  in  all  matters  which  pertain  to  the  remedy,  and  which  do 
not  involve  the  substantial  rights  of  the  client.     For  the  due  and 

»  Gilman  v.  Gilman,  126  Mass.  26,  « Reynolds    v.    Fleming,    30  Kan. 

80  Am.  Rep.  646;  Penny  wit  t).  Foote,  106,  46   Am.   Rep.  86;   Ferguson  «. 

27  Ohio  St.   600,  22  Am.    Rep.  340,  Crawford,  70  N.  Y.  253,  26  Am.  Rep. 

which  contains  a  full  review  of  the  589 ;  Harshey  v.  Blackmarr,  20  Iowa, 

cases.  161,  89  Am.  Dec.  520. 

670 


Chap.  L] 


ATTORNEYS    AT    LAW. 


§blli. 


orderly  conduct  of  the  cause,  the  court  holds  the  attorney  respon- 
sible, and  these  matters  the  client,  while  he  has  an  attorney  of 
record,  has  no  right  to  interfere  with  or  to  control.*  So  what- 
ever the  attorney  does  in  the  prosecution  of  the  remedy,  if  it  be 
not  done  fraudulently  or  collusively,  is  binding  upon  the  client, 
although  it  may  result  disastrously  to  him.* 

And  this  rule  is  not  confined  to  the  proceedings  had  in  court, 
but  includes  all  acts,  whether  done  in  or  out  of  court,  necessary 
or  incidental  to  the  prosecution  or  defense  of  the  suit,  and  which 
affect  the  remedy  only  and  not  the  cause  of  action.' 

§  812.  Same  Subject— What  included.  As  incidental  to  his 
authority  to  manage  and  control  the  general  course  and  conduct 
of  the  cause,  the  attorney  of  record  has  implied  power : — 

a.  To  make  such  affidavits  as  are  required  in  the  progress  of 
the  cause,  when  the  facts  are  within  his  knowledge.* 


'  "A  party  to  an  action  may  appear 
in  his  own  proper  person  or  by  at- 
torney, but  he  cannot  do  both.  If  he 
appears  by  attorney,  he  must  be  heard 
through  him,  and  it  is  indispensable 
to  the  decorum  of  the  court,  and  the 
due  and  orderly  conduct  of  a  cause 
that  such  attorney  shall  have  the 
management  and  control  of  the  action, 
and  his  acts  go  unquestioned  by  any 
one  except  the  party  whom  he  repre- 
sents. So  long  as  he  remains  attor- 
ney of  record,  the  court  cannot  recog- 
nize any  other  as  having  the  manage- 
ment of  the  cause."  Sanderson,  C. 
J.,  in  Board  of  Commissioners  «. 
Tounger,  29  Cal.  147,  87  Am.  Dec. 
164.  To  same  effect  see  Mott  v. 
Foster,  45  Cal.  72;  Nightingale  v. 
Oregon  Central  Ry  Co.,  2  Sawyer, 
(U.  S.  C.  C.)  338.  But  where  the 
client  has  stipulated  in  person  to  set- 
tle the  cause,  he  cannot  defeat  it  by 
insisting  that  his  attorney  and  not 
himself  was  the  person  who  should 
have  signed.  McBratney  v.  Rome, 
&c.  R.  R.  Co.,  87  N.  Y.  467. 

«Beck  «,  Bellamy,  93  N.  C.  129; 
Foster  v.  Wiley,  27  Mich.  244;  Lee  v. 
Grimes,  4  Col.  185;  Moulton  v.  Bow- 


ker,  115  Mass.  36,  15  Am.  Rep.  72; 
Clark  V.  Randall,  9  Wis.  135,  76  Am, 
Dec.  252;  Pierce  v.  Strickland,  2 
Story  (U.  S.  C.  C.)  292;  Nightingale 
V.  Oregon  Cent.  Ry  Co.,  2  Sawyer 
(U.  S.  C.  C.)  338;  Jenney  v.  Deies- 
dernier,  20  Me.  183 ;  Benson  v.  Carr, 
73  Id.  76;  Burgess  v.  Stevens.  76  Id. 
559;  Levy?).  Brown.  56  Miss.  83;  Mc- 
Cann  v.  McLennan.  3  Neb.  25;  Edger- 
ton  V.  Brackett,  11  N,  H.  218;  Lewis 
V.  Sumner.  13  Mete. (Mass.)  269;  Shores 
e.  Caswell,  Id.  413;  Wieland®.  White, 
109  Mass.  393;  DeLouis  v.  Meek,  2 
G.  Greene  (Iowa)  55,  50  Am.  Dec. 
491 ;  Howe  v.  Lawrence,  22  N.  J.  L. 
99. 

«  Moulton  V.  Bowker,  115  Mass.  36, 
15  Am.  Rep.  72. 

*  He  may  verify,  by  affidavit,  a 
petition  in  scire  facias,  Wright  v. 
Parks,  10  Iowa,  342.  He  may  make 
an  aflBdavit  to  obtain  an  order  of 
siezure  and  sale.  Simpson  v.  Lom- 
bas,  14  La.  Ann.  103;  or  to  obtain  an 
attachment,  Clark  v.  Morse,  16  La. 
575;  Austin  v.  Latham,  19  Id.  88; 
Willis  V.  Lyman,  22 Tex.  268;  Manley 
V.  Headley,  10  Kan.  88. 


671 


^612. 


TllK    LAW    OF    AGENCY. 


[Book  V. 


b.  To  waive  a  verification.' 

c.  To  serve,  and  accept  service  of,  all  necessary  and  proper 
papers,  notices,  etc.,  during  the  progress  of  the  cause.' 

d.  To  waive  formal  notice  of  proceedings  in  the  cause.* 

e.  To  waive  or  extend  the  time  fixed  for  any  motion  or  pro- 
ceeding.* 

y.  To  consent  to  a  reference  of  the  cause.* 
g.  To  submit  the  cause  to  arbitrators.* 
h.  To  dismiss  or  discontinue  the  action.' 
i.    To  consent  to  a  nonsuit.' 
j.    To  appeal  the  case." 

k.  To  admit  facts  for  the  purposes  of  trial,  either  on  the  trial 
or  before." 

I.   To  stipulate  as  to  the  issues  to  be  tried." 

m.  To  waive  informalities  and  technicalities." 

n.  To  release  an  attachment  lien  before  judgment." 


'  Smith  e.  Mulliken,  2  Minn.  319. 

2  Anderson  v.  Watson,  3  C.  «&  P. 
214;  Richardson  v.  Daly,  4  M.  &  W. 
384. 

»  Hefferman  v.  Burt,  7  Iowa,  320, 
71  Am.  Dec.  445. 

*  Hefferman  v.  Burt,  supra. 

s  Stokely  v.  Robinson,  84  Penn.  St. 
315;  Woder  v.  Powell.  31  Ga.  1; 
Smith  V.  Bossard,  2  McCord's  (S.  C.) 
Ch.  406;  Tiffany  d.  Lord,  40  How. 
(N.  Y.)Pr.  481. 

«  Sargeant  v.  Clark,  108  Penn.  St. 
583;  Holker  v.  Parker,  7  Crancli  (U.  S.) 
436;  Connett  v.  Chicago,  114  111.  233; 
Tilton  V.  United  States  Life  Ins.  Co., 
8  Daly  (N.  Y.)  84;  Lee  v.  Grimes,  4 
Col.  185;  Morris  v.  Grier.  76  N.  C. 
410;  Williams  v.  Tracey,  95  Penn,  St. 
308;  Alton  v.  Gilmantou,  2  N.  H. 
520;  Yates  v.  Russell,  17  Johns.  (K 
Y.)  401;  Haskell  B.  Whitney,  12  Mass. 
47;  Buckland  v.  Conway,  16  Mass. 
396:  Fernald  v.  Ladd,  4  N.  H.  370; 
Piker.  Emerson,  5  N.  H.  .393,  22 
Am.  Dec.  468;  Jenkins  v.  Gillespie, 
10  8m.  &  M.  (Miss.)  31,  48  Am.  Dec. 
732;    Beverly  «.    Stephens,    17   Ala. 


701 ;  Brooks  v.  New  Durham,  55  N. 
H.  559;  contra  McPherson  «.  Cox,  86 
N.  Y.  472. 

T  Paxton  V.  Cobb,  2  La.  137;  Mc- 
Leran  v.  McNamara,  55  Cal.  508; 
Rogers  B.  Greenwood,  14  Minn.  333; 
Gaillard  v.  Smart,  0  Cow.  (N.  Y.) 
385;  Barrett  v.  Third  Ave.  R.  R.  Co., 
45  N.  Y.  028;  Davis  v.  Hall,  90  Mo. 
659. 

8  Lynch  v.  Coel,  12  L.  T.  548. 

•Grosvenor  v.  Danforth,  16  Mass. 
74;  Bach  v.  Ballard,  13  La.  Ann.  487. 

'0  Starke  v.  Kenan,  11  Ala.  819; 
Farmers'  Bank  v.  Sprigg,  11  Md  389; 
Pike  V.  Emerson,  5  N.  H.  393;  Talbot 
V.  McGee,  4  T.  B.  Mon.  (Ky.)  377; 
Lewis  V.  Sumner,  13  Mete,  (ilass.) 
269. 

Admissions  to  bind  the  client  must 
be  distinct  and  formal,  and  made  for 
the  purpose  of  dispensing  witb  proof. 
Treadway  v.  Sioux  City,  &c.  R.  R. 
Co.,  40  Iowa,  526. 

"  Bingham  v.  Supervisors,  6  Minn, 
136. 

'»  Hanson  v.  Hoitt,  14  N.  H.  66. 

'»  Benson  D.  Carr,  73  Me.  76;  Moul- 


672 


Chap.  I.] 


ATTORNEYS    AT    LAW. 


§813. 


o.  To  stipulate  that  judgment  in  the  cause  be  the  same  as  in 
another  cause  then  pending  involving  the  same  questions.' 

p.  To  get  necessary  briefs  printed  at  client's  expense.* 

q^.  To  bring  a  new  action  after  a  nonsuit.' 

r.  To  agree  that  upon  judgment  being  entered  for  his  client, 
he  will  suspend  the  issue  of  execution.* 

8.  To  remit  damages  after  a  verdict.* 

§  813.  Same  Subject— What  not  included.  Such  an  attorney 
has,  however,  no  implied  power : — 

a.  To  admit  or  accept  service  of  original  process  by  which 
the  court  acquires  jurisdiction  for  the  first  time  of  the  person  of 
his  client.' 

5.  To  confess  or  consent  to  judgment  against  his  client.' 

c.  To  enter  a  retraxit  when  it  is  a  final  bar.' 

d.  To  stipulate  that  the  dismissal  of  an  action  shall  bar  an 
action  for  malicious  prosecution.* 

6.  To  compromise  the  claim  of  his  client.'* 


ton  «.  Bowker,  115  Mass.  36,  15  Am. 
Rep.  72;  Jenney  «.  Delesdernier,  20 
Me.  183;  Pierce  v.  Strickland,  2  Story 
(U.  8.  C.  C.)  292. 

*  North  Missouri  R  R.  Co.  «. 
Stephens,  36  Mo.  150,  88  Am.  Dec. 
138;  or  that  the  result  in  one  of 
several  similar  causes  determine  all. 
Ohlquest  «.  Farwell — Iowa — 32  N, 
W.  Rep.  277. 

«  Weisse  ».  New  Orleans,  10  La. 
Ann.  46;  Williamson,  «S;c.  Paper  Co. 
«.  Bosbyshell,  14  Mo.  App.  534. 

»  Scott  «.  Elmendorf,  12  Johns.  (N. 
T.)  817. 

*  Union  Bank  ®.  Geary.,  5  Pet.  (TJ. 
S.)99;  Wieland«.  White,  109  Mass. 
392. 

•  Lamb  «.  Williams,  1  Salk.  89. 

•  Masterson  «.  Le  Claire,  4  Minn. 
163;  Reed  v.  Reed,  19  S.  C.  548;  Starr 
«.  Hall,  87  N.  C.  381. 

'  People  V.  Lambom,  2  111.  123; 
Wadhamst).  Qay,73Ill.  415;  Edwards 
«.  Edwards,  29  La.  Ann.  597;  Pfister 
c.  Wade,  69  Cal.  133;  Swinfenc.  Swin- 
fen,  24  Beav.  549. 


•  Lambert  t>.   Sandford,   2  Blackf. 
and.)  137,  18  Am.  Dec.  149. 

•  Marbourg  ».  Smith,  11  Kans.  554, 
"  The    English  rule  is  otherwise, 

but  the  rule  stated  in  the  text  is  sup- 
ported by  an  overwhelming  mass  of 
authority  in  the  United  States.  See 
Fritchey  v.  Bosley,  56  Md.  96;  Isaacs 
V.  Zugsmith,  103  Penn.  St.  77;  Jones 
f>.  Inness,  32  Kan.  177;  Kelly  c. 
Wright,  65  Wis.  236;  Roberts  c.  Nel- 
son, 22  Mo.  App.  28;  Whipple  o. 
Whitman,  13  R.  I.  512,  43  Am.  Rep. 
42;  Mackey  e.  Adair,  99  Penn,  St, 
143;  North  Whitehall  t>,  Keller,  100 
Penn.  St,  105,  45  Am.  Rep,  361; 
Granger  «,  Batchelder,  54  Vt,  248,  41 
Am,  Rep.  846;  Ambrose  «,  McDon- 
ald, 53  Cal,  28;  Pickett  e.  Merchants' 
Nat.  Bank,  32  Ark.  346;  Mandeville 
V.  Reynolds,  68  N.  Y.  538;  Wadhams 
«,  Gay,  78  111.  415;  Roller  v.  Woold- 
ridge,  46  Tex.  485;  Preston  v.  Hill,  50 
Cal,  43;  Maddux  «,  Bevan,  39  Md. 
485;Walden  t.  Bolton,  55  Mo.  405; 
Spears  v.  Ledergerber,  56  Mo.  4G5; 
Vanderline  v.  Smith,  18  Mo.  App.  65; 


43 


673 


§813. 


THE    LAW    OF    AGENCY. 


[Book  V. 


f.  To  release  his  client's  cause  of  action.* 
g.  To  stipulate  not  to  appeal  or  more  for  a  new  trial.* 
h.  To  release  the  property  of  the  defendant  from  the  lien  of  a 
judgment,^  or  from  the  levy  of  an  execution.'' 

i.  To  release  his  client's  security  without  payment." 
/.  To  discharge  or  release  a  surety  •  or  indorser.'' 
Ic.  To  discharge  a  defendant  in  custody  on  a  ca.  sa.,  without 
the  plaintiff's  consent  or  without  satisfaction.* 

I.  To  agree  to  suspend  proceedings  on  a  judgment.* 
m.  To   release  a  garnishee  from  the  attachment  of  money  or 
property  in  his  hands." 

n.  To  release  the  interest  of  parties  so  as  to  make  them  com- 
petent as  witnesses." 

0.  To  give  an  extension  of  time  upon  the  demand." 

p.  To  assign  or  transfer  the  demand  or  suit  to  a  third  person." 


Grumley  f>.  Webb,  48  Mo.  563; 
Wetheibeec.  Fitch,  117  111.  67;  Moye 
V.  Cogdell,  69  N.  C.  93;  Adams  v. 
Roller,  35  Tex.  711.  Contra,  Bon- 
ney  v.  Morrill,  57  Me.  368.  But  a 
fair  and  judicious  compromise  made 
by  the  attorney  with  the  assent  of  the 
real  party  in  interest  though- without 
the  knowledge  of  the  plaintiff  of 
lecord  will  not  be  disturbed.  Whip- 
ple V.  Whitman,  13  R.  I.  512,  43 
Am.  Rep.  43.  Authority  to  com 
promise  a  claim  does  not  imply  au 
thority  to  assign  it  to  a  third  person 
Mayer  v.  Blease,  4  S.  C.  10. 

'  Mandeville  v.  Reynolds,  68  N.  Y, 
538;  Coxw.  New  York,  &c.  R.  R.  Co 
63  N.  Y.  414;  Gilliland  v.  Gasque,  6 
y.  C.  406;  Wadhams  v.  Gay,  73  III 
415. 

» People  V.  Mayor,  &c.  of  New 
York,  11  Abb.  Pr.  66,  contra,  Pike  v. 
Emerson.  5  N.  H.  393,  22  Am.  Dec. 
468. 

8  Phillips  V.  Dobbins,  56  Ga.  617; 
Fritchey?).  Bosley,  56  Md.  94;  Horsey 
V.  Chew,  65  Md.  555 

*  Banks  v.  Evans,  10  Sm.  &  M. 
(Miss.)  35,  43  Am.  Dec.  734;  Benedict 
e.  Smith,  10  Paige  (N.  Y.)  126. 


•  Terhune  v.  Colton,  2  Stock.  (N. 
J.)  Eq.  21 ;  Tankersley  v.  Anderson,  4 
Desaus.  (S.  C.)  45. 

•  Savings  Inst.  v.  Chinn,  7  Bush 
(Ky.)  539;  Givens  v.  Briscoe,  3  J.  J. 
Marsh.  (Ky.)  529;  Union  Bank  v. 
Govan,  10  Sm.  &  M.  (Miss.)  333; 
Stoll  V.  Sheldon,  13  Neb.  207. 

''  East  River  Bank  v.  Kennedy,  9 
Bo8w.  (N.  Y.)  543;  Kellogg  v.  Gil- 
bert, 10  Johns.  (N.  Y.)  220;  York 
Bank  v.  Appleton,  17  Me.  55. 

8  Kellogg  v.  Gilbert,  10  Johns.  (N. 
Y.)  220,  6  Am.  Dec.  335;  Treasurers 
V.  McDowell.  1  Hill  (S.  C.)  184,  26 
Am.  Dec.  166. 

•  Pendexter  v.  Vernon,  9  Humph. 
(Tenn.)  84. 

i»  Quarles  «.  Porter,  12  Mo.  76. 

"  York  Bank  v.  Appleton,  17  Me. 
55;  East  River  Bank  v.  Kennedy,  9 
Bosw.  (N.  Y.)  543;  Murray  v.  House, 
11  Johns.  (N.  Y.)  464;  Shores  v.  Cas- 
well, 13  Mete.  (Mass.)  413;  Ball  v. 
Bank  of  Alabama,  8  Ala.  690,  43 
Am.  Dec.  649. 

IS  Lockhart  v.  Wyatt,  10  Ala.  231, 
44  Am.  Dec.  481. 

'»  Child  B.  Eureka  Powder  Works, 
44  N.  H.  354;  Russell  v.  Drummond, 


674: 


Chap.   I.]  ATTORNEYS    AT    LAW.  §  814. 

q.  To  consent  to  stay  the  execution  if  lieu  will  be  lost.* 

r.  To  waive  the  right  to  an  inquisition.' 

8.  To  give  up  tlie  demand  and  take  other  security.* 

t.  To  employ  counsel  at  client's  expense.* 

u.  To  stipulate  that  case  shall  not  be  tried  during  certain 
periods.' 

V.  To  undertake  journeys  on  client's  behalf  and  at  his  ex- 
pense.* 

§  814.  Can  not  delegate  his  Powers.  The  relation  of  attor- 
ney and  client  is  pre-eminently  one  of  trust  and  confidence. 
The  client  employs  a  particular  attorney  because  he  relies  upon 
his  skill,  learning,  ability  or  integrity.  The  attorney,  in  th& 
management  of  the  cause,  has  from  necessity  a  large  discretion 
and  authority  as  to  the  general  course  and  conduct  of  the  pro- 
ceedings, and  this  fact  the  client  has  presumal)ly  taken  into  con- 
sideration in  making  liis  selection.  In  accordance  with  well 
settled  principles  of  agency,  therefore,  the  rule  is  rigidly  adhered 
to  that  those  powers  committed  to  an  attorney,  which  involve 
the  exercise  on  his  part  of  judgment  or  discretion,  or  which  are 
based  upon  considerations  of  his  personal  skill  or  ability,  can  not 
be  delegated  by  him  to  another  without  the  consent  of  his 
client.' 

6  Ind.  216;   Craig  v.  Ely,  5  Stew.  &  bound  by  the  acts  done  in  the  discre- 

P.  (Ala.)  354.  tion  of    one    to    whom    the    agent 

1  Reynolds  ».  Ingersoll,  11  Sm.  &  attempts  to  delegate  his  authority. 
M.  (Miss.)  249,  49  Am.  Dec,  57.  The  rule  is  based  upon  the  consider- 

2  Hadden  ».  Clark,  2  Grant  (Penn.)  ation  that  to  the  agent  is  confided  the 
i07.  personal  trust  and  confidence  which 

»  Tankersley     «.      Anderson,       4  controlled  his  appointment  or  selec- 

Desau.  (S.   C.)  44.  tion,  and  is  essential  to  the  existencQ 

<  Voorhies    v.    Harrison,    23    La.  of  the  relation  of  principal  and  agent. 

Ann.  85;  Young  tj.  Crawford,  23  Mo.  We  know  of  no  rule  excepting  from 

A.pp.  433.  the   operation   of  this    doctrine  any 

6  Robert  c.  Commercial  Bank,  13  attorney  at  law,  whose  duties,  re- 
La.  528,  33  Am.  Dec.  570.  sponsibilities  and  liabilities  arise  from 

^  In  re  Snell.,  5  Ch.  Div.  815,  22  the      relation      of    agency    exi.5ting 

Eng.  Rep.  485.  between   him   and  his  client,  though 

T  "A.  familiar  and  general  rule  of  they  are  varied  from   those  of  other 

law,"  says   Beck,  J.    "applicable  to  agents  by  consideration  of  the  pecu- 

the  relation  of  principal  and  agent  is,  liar  service  he  is  required  to  perform, 

that  the  agent  cannot    delegate    the  Indeed  it  would   appear,   in  view  of 

authority    conferred    upon    him    to  the  fact    that  attorneys    are  cho.<en 

another,  so  that  the  principal  will  be  by  reason  of  their  peculiar  capacities 

675 


§  814.  THE   LAW   OF   AQENOT.  [Book  V. 

Thus  the  client  who  has  employed  an  attorney  to  take  charge 
of  his  case  at  the  trial,  or  to  argue  it  in  an  appellate  court,  or  to 
undertake  to  secure  a  compromise,  or  to  endeavor  to  collect  an 
account,  or  to  do  any  other  act  involving  judgment,  skill,  ability 
or  discretion,  is  entitled  to  have  the  personal  services  of  the 
attorney  for  which  he  stipulated,  and  the  attorney  has  no  right 
or  power  to  bind  his  client  by  subletting  or  delegating  the  work 
to  another.'  If  such  a  delegation  were  attempted,  the  client 
would  have  the  undoubted  right  to  summarily  intercept  its  exe- 
cution," and  if  it  were  fully  executed,  without  his  knowledge  or 
consent,  the  execution  would  render  him  liable  neither  to  the 
original  attorney  nor  to  his  substitute.'  But  if,  having  knowl- 
edge of  the  substitution,  he  should  permit  the  substitute  to  per- 
form the  services  without  objection,  he  would  be  deemed  to 
have  assented  to  it.* 

So  third  persons  dealing  with  such  a  substitute  would  acquire 
no  rights  against  the  client,  inasmuch  as  the  substitute  is  the 
agent  of  the  attorney  only,  and  not  of  his  client."  Thus  if  the 
client  entrusts  to  his  attorney  a  claim  or  note  for  collection,  and 
the  attorney  employs  another  to  do  it  for  him,  the  latter  stands  in 
no  relation  of  privity  to  the  client,  and  a  payment  made  to  the  sub- 
stitute will  not  be  a  payment  to  the  client  unless  actually  received 
by  him.* 

If,  however,  the  note  were  payable  to  bearer,  or  was  endorsed 
in  blank,  and  was  paid  at  maturity  to  one  having  the  possession 

and   character,    and    other  personal  « Eggleston  t>.  Boardman,  *upra. 

qualities,  that  the  principles  we  have         •  Eggleston   v.    Boardman,   supra. 

stated   should   be  rigidly  applied  in  A  client  is  not  liable  for  costs  made 

cases  of  this  kind."     In  Antrobus  v.  by  an  attorney  employed  by  his  attor- 

Sherman,  65  Iowa  230,  54  Am.  Rep.  ney.     Antrobus  v.  Sherman.  65  Iowa, 

7.      To    same    effect:      Dickson    v.  230,  54  Am.  Rep.  7. 
Wright,  52  Miss.  585,   24  Am.  Rep.  *  Eggleston    v.    Boardman,   supra. 

677;  Danley  v.    Crawl,   28  Ark.  95;  Briggs  ij.  Georgia,  10  Vt.  68. 
Kellogg    V.     Norris,     10    Ark.     18;  « See  ante,  §  197. 

Smalley  v.  Greene,  52  Iowa  241,  35  «  Kellogg  v.  Norris,    10  Ark.    18; 

Am.  Rep.  267.  Danley  v.    Crawl.,    28  Ark.  95.     At 

•  Eggleston  c.  Boardman,  37  Mich.  any  rate  if  the  debtor  knew  of  the 

14.     An  agreement  by  an  attorney  to  Bubstitution  and    the    substitute  did 

turn  over  to  another  attorne}',  notes  not    have    possession    of    the    note, 

which  the  former  holds  for  collection,  Dickson  v.  Wright,  52  Miss.  585,24 

is  invalid.     Smalley  «.  Greene,  supra.  Am.  Rep.  677. 

676 


Chap.  I.]  ATTOBNBrS   AT   LAW.  §  816. 

of  it,  ready  to  be  delivered  upon  payment,  such  payment  would 
be  valid  and  discharge  the  debtor.' 

The  client  may,  however,  either  expressly  or  by  implication 
authorize  the  attorney  to  employ  a  substitute,  or  he  may  subse- 
quently ratify  and  confirm  such  delegation,  and,  in  either  of  these 
cases,  the  substitute  is  the  attorney  of  the  client. 

The  employment  of  one  of  a  firm  of  attorneys  is  an  employ- 
ment of  them  all,  and,  unless  otherwise  stipulated,  the  cause  may 
be  tried,  or  the  business  performed,  by  any  one  of  them.* 

§  815.  May  employ  Subordinates,  But  this  rule  does  not 
require  that  the  attorney  should  personally  perform  all  of  the 
mechanical  and  routine  labor  involved  in  the  cause.  From  the 
very  necessities  of  the  case,  much  of  this  must  be  done  by  clerks 
and  subordinates  under  his  direction,  and  such  a  performance 
does  not  violate  the  principle  under  consideration.  As  has  been 
seen,  what  is  ministerial  and  mechanical  merely  may  be  dele- 
gated ;  but  that  which  involves  discretion,  judgment  or  other 
personal  considerations  may  not.  As  the  rule  is  sometimes 
stated,  an  attorney  may  employ  subordinates  but  not  substitutes.* 

§  816.  Authority  to  bind  Client  by  Bonds.  The  necessity  for 
the  execution  of  bonds  and  other  undertakings  by  the  client, 
frequently  arises  in  the  progress  of  the  cause,  and  it  becomes 
material  in  many  cases,  particularly  where  the  client  is  a  non- 
resident, to  determine  what  authority  the  attorney  possesses  by 
virtue  of  his  general  retainer,  to  execute  such  bonds  in  the  name 
of  the  clients.  These  bonds  and  undertakings  are  often  required 
to  be  under  seal,  and  it  has  been  seen  to  be  a  general  rule  that 
authority  to  execute  an  instrument  under  seal  can  only  be  con- 
ferred by  an  instrument  of  like  solemnity.*  Where,  therefore,  a 
seal  is  required,  the  power  to  execute  the  bond  could  not,  where 
this  rule  prevails,  be  implied  from  a  mere  general  retainer,"  but 
if  the  seal  were  not  required,  it  could,  as  has  been  seen,*  be 
rejected  as  a  mere  redundancy  and  the  bond,  if  otherwise 
authorized,  might  be  given  force  as  a  simple  contract  or  under- 
taking.' 

I  Wheeler  ».  Guild,  20  Pick.  (Mass.)  «  See  ante,  §  93. 

545,  33  Am.  Dec.  231.  •  See  Clark  v.  Courser,  29  N.  H.  170. 

«  Eggleston  v.  Boardman,  supra.  •  See  ante,  §  95. 

»  Eggleston  v.  Boardman,  37  Mich.  "f  Schoregge  v.   Gordon,   29  Minn. 

14 ;  McEwen  v.  Mazyck,  3  Rich  (S.  C.)  867. 
L.  210. 

67" 


§  816.  THE    LAW    OF    AGENCY.  [Book  V, 

The  question  of  authority  must  depend  largely  upon  circum- 
stances. Authority  to  do  a  given  act  carries  with  it  implied 
authority  to  do  those  things  which  are  necessary  in  order  to 
accomplish  the  main  end,  and  what  is  necessary  must  be  deter- 
mined in  many  cases  by  reference  to  the  particular  facts.  Thus 
if  a  party  sends  a  claim  to  an  attorney  in  a  distant  town  for  collec- 
tion, there  is  implied  authority  in  the  attorney  to  take  those  steps 
which  are  usually  taken  under  like  circumstances,  and  which  are 
necessary  to  accomplish  the  purpose.  If  in  such  a  case  there  was 
reasonable  ground  to  believe  that  the  claim  would  be  lost  unless 
the  debtor's  property  was  attached  or  levied  upon  at  once,  and 
there  was  not  sufficient  time  to  communicate  with  the  client,  the 
attorney  would  undoubtedly  be  authorized  to  make  the  necessary 
affidavit  and  execute  the  proper  undertaking  in  the  name  of  the 
client  to  obtain  the  writ.'  But  it  has  been  held  that  an  attorney 
under  such  circumstances  is  under  no  obligation  to  make  the  affi- 
davit or  execute  the  bond.*  If  the  client  were  on  the  ground 
where  he  could  be  personally  consulted,  the  attorney's  authority 
to  bind  him  would  be  doubtful. 

So  it  has  been  held  that  an  attorney  authorized  to  collect  for  a 
non-resident  client  has  implied  authority  to  execute  in  the 
client's  name  an  undertaking  to  the  sheriff  to  indemify  him 
against  the  consequences  of  levying  the  client's  execution,  and 
that  the  attorney,  acting  in  good  faith  may  himself  indemnify 
the  sheriff,  and,  if  compelled  to  pay  damages  thereon,  may 
recover  the  amount  so  paid  from  his  client.' 

>  Dwight  V.  Weir,  6  La.  Ann,  706;  gave  him  their  own  personal  bond. 

Fulton  V.    Brown,    10  La.  Ann.  350.  A  judgment   having    been    rendered 

Clark  V.  Randall,  9  Wis.  135,  76  Am,  against  the  marshal  at  the  suit  of  the 

Dec    252;   Schoregge  v.   Gordon,  29  parties  who  established   a    superior 

Minn.  367.  title  to  the  goods,  he  took  legal  steps 

*  Foulks  V.  Falls,  91  Ind.  315.  to  collect  of  the   attorneys,  and  they 

»  Clark  V.  Randall,  9  Wis.    135,  76  having  paid  him   brought  an  action 

Am.  Dec.  252,  is  a  leading  case  upon  against  their  clients,  contending  that 

this  question.     In  this  case  attorneys  the  latter  were   bound  to  reimburse 

at  Milwaukee   acting    for  clients  in  them  for  all  damages  which  they  had 

New  York  in  order  to  induce   the  sustained   in   consequence  of  giving 

marshal,    who  insisted   upon  indem-  the  indemnifying  bond.     The   court 

nity,  to  levy  an  execution  for  their  in  its  opinion  per  Cole,  J.  said:  "  It 

clients  upon  a  stock  of  goods  which  is  obvious,  therefore,  that  we  have  to 

the  attorneys  believed  in  good  faith  consider  whether  the  defendants,  by 

to  belong  to  the  judgment  debtor,  virtue  of  their  general   authority  as 

678 


Chap.  L] 


ATT0KNET8   AT    LAW. 


§816. 


If,  however,  the  levy  were  fully  completed  and  the  proceeds 
realized,  before  the  indemnity  were  given,  there  would  be  no 


attorneys,  and  under  the  circum- 
stances in  which  they  were  employed, 
had  the  right  to  give  the  indemnify- 
ing bond,  and  whether,  if  so,  the 
plaintiffs  in  error  are  bound  to  save 
them  harmless  from  any  damage  they 
may  have  sustained  thereby. 

The  general  rights,  duties,  and 
powers  of  attorneys  in  suits  brought 
by  non-residents  must  evidently,  we 
think,  be  more  extensive  in  this  state 
than  they  are  in  England.  This 
arises  from  the  nature  and  character 
of  the  business  intrusted  to  them, 
and  the  absolute  necessity  that  they 
should  have  full  power  to  promptly 
do  all  acts  proper  and  conducive  to 
the  collection  and  security  of  the 
debt.  As  in  the  present  case,  a  mer- 
chant living  at  a  distance  of  hun- 
dreds of  miles,  sends  a  claim  to  an 
attorney  in  this  state  instructing  him 
to  be  vigilant  in  looking  after  it,  and 
to  urge  payment  without  fear  or 
favor.  We  place  no  further  stress 
upon  the  precise  language  used  by 
the  plaintiffs  in  error  in  their  letter 
addressed  to  the  defendants  in  error, 
than  to  say  that  we  suppose  they  con- 
tain substantially  the  instructions 
given  in  most  cases  by  non-residents 
to  their  attorneys  here.  Living  at  a 
distance,  they  are  unable  to  give 
t-'ociflc  instructions  as  to  the  means 
to  l»e  employed,  or  the  steps  to  be 
taken,  to  secure  and  collect  their 
claims.  Neither  are  they  at  hand  to 
give  special  directions  to  officers  as 
to  the  levying  of  executions  or  serv- 
ing attachments,  when  such  direc- 
tions are  absolutely  necessary  to 
secure  the  debts.  Besides,  unforeseen 
emergencies  frequently  arise  which 
require  the  adoption  of  some  decided 
line  of  action  to  prevent  some  tricky 
and   dishonest  debtor    from  placing 


his  means  entirely  beyond  the  reach 
of  his  creditors.  In  such  cases,  it  is 
manifestly  for  the  interests  of  the 
client  that  the  fullest  and  largest  dis- 
cretion be  given  to  attorneys  in  the 
transaction  of  the  business  intrusted 
to  them.  They  are  generally  author- 
ized to  secure  and  collect  debts,  and 
are  clothed  with  the  power  of  em- 
ploying all  the  necessary  and  usual 
means  for  the  accomplishment  of  this 
object.  An  authority  is  always  to  be 
construed  as  including  the  usual 
means  of  executing  it  with  effect. 
Paley  on  Agency,  c.  3,  pt.  1,  sec.  5; 
Story  on  Agency,  sec.  58. 

Now,  we  presume  it  to  be  the  gen- 
eral understanding  and  quite  uniform 
practice  of  the  profession  in  this 
state,  when  prosecuting  suits  for  non- 
residents, to  give  directions  to  offi- 
cers about  serving  attachments  and 
levying  executions,  when  any  in- 
structions are  called  for.  We  do  not 
suppose  it  is  customary  to  write  to 
clients  living  at  a  great  distance,  who 
can  possibly  know  but  little,  if  any- 
thing, of  the  situation  of  their  debt- 
or's property,  for  special  directions 
upon  these  points.  The  attorney  on 
behalf  of  and  as  the  agent  of  the 
principal  gives  all  proper  instructions; 
and  great  prejudice,  inconvenience, 
and  loss  would  ensue  to  the  latter  if 
the  attorney  did  not  do  so.  And  we 
think  all  this  comes  fairly  within  the 
scope  of  his  authority,  in  order  to 
protect  and  preserve  the  interests  of 
his  foreign  client.  'My  own  opin- 
ion,' says  Justice  Story  in  the  case 
of  Pierce  v.  Strickland,  3  Story,  292, 
'  strongly  is  that  the  attoruey  with 
us  is,  by  implication,  clothed  with 
authority,  in  all  cases  of  this  sort,  to 
do  all  the  acts  which  are  usual  and 
proper  to  protect  the  interests  of  his 


679 


§816. 


THE   LAW   OF    AGENCY. 


[Book  y. 


Buch  necessity  as  would   justify  the   attorney  in  giving  it,  nor 
would  there  be  any  consideration  for  it. 


client,  in  any  attachment,  as  a  part 
of  his  ordinary  duty.  It  is  for  the 
interests  of  all  clients  that  this 
authority  should  exist;  for  it  would 
be  impracticable,  in  many  cases, 
without  great  expense  and  delays,  to 
do  many  acts  which  might  be  indis- 
pensable to  the  security  of  the  clients; 
and  for  any  abuse  or  misuse  of  his 
authority  the  attorney  would  doubt- 
less be  liable  to  his  client. '  See  also 
Gordon  v.  Coolidge,  1  Sumn.  537; 
Union  Bank  v.  Geary,  5  Pet.  99; 
Holker  v.  Parker,  7  Cranch.  436; 
Gorham  v.  Gale,  7  Cow.  739,  17  Am. 
Dec.  549;  Lynch  v.  Commonwealth, 
16  Serg.  &  R.  368,  16  Am.  Dec.  582; 
Scott  V.  Seller,  5  Watts,  235;  Gower 
V.  Emery,  18  Me.  79;  Rice  v.  Wilkins, 
21  Id.  558;  Briggs  v.  Georgia,  10  Vt. 
68;  Hopkins  v.  Willard,  14  Id.  474; 
Kimball  v.  Perry,  15  Id,  414. 

We  think,  therefore,  that  the  de- 
fendants in  error  had  an  implied  au- 
thority, by  virtue  of  their  employment 
as  attorneys  in  the  suits,to  indemnify 
the  marshal,  when  about  to  make  a 
levy  under  the  execution;  and  that 
their  acts  in  this  behalf  were  binding 
upon  their  clients.  And  if  they  exe- 
cuted their  own  indemnifying  bond 
to  the  officer,  and  have,  in  conse- 
quence, suffered  from  it,  it  is  no 
more  than  just  and  proper  that  their 
clients  reimburse  them  for  all  dam- 
ages  they  have  sustained  thereby." 

This  case  was  followed  and  relied 
upon  in  Schoregge  v.  Gordon,  29 
Minn.  367.  Here  an  attorney  acting 
for  non-resident  clients,  having 
obtained  judgment,  caused  an  execu- 
tion to  be  issued  and  levied  upon 
property  supposed  to  belong  to  the 
debtor.  The  property  being  claimed 
by  third  parties,  the  sheriff  refused  to 
retain  it  unless  indemnified,  the  stat- 


ute  giving   him  the  right  to  insist 
upon  it.     Thereupon    the    attorney, 
without    their    express    direction  or 
consent,    executed,  to    the  sheriff  a 
bond   of  indemnity,  in  the  name  of 
his  clients  by  himself  as  their  attor- 
ney.    The  third   parties  established 
their  claim  and  the  sheriff  brought  an 
action  upon  the  bond  and  the  ques- 
tion   arose    whether  it  was  binding 
.  upon  the  clients.    Vanderbukgh,  J. 
said:     "  Having  authority  to  proceed 
to  the  enforcement  and  collection  of 
the  judgment,  was  he  also  authorized 
to  bind  his  absent  clients  by  this  in- 
strument without  their  express  direc- 
tion or  consent  ?  It  must  be  assumed 
from  the  record  that  the  levy  was 
made  by  the  sheriff  in  good  faith, 
upon   property   in  the  possession  of 
the  judgment  debtor  and  colorably 
his,  and  that  the  proper  demand  was 
made    upon    him    by  the  claimants 
under  the  statute.     It  is  also  to  be 
presumed  (nothing  appearing  to  the 
contrary)   that  the  attorney  acted  in 
good  faith  and  with  reasonable  dis- 
cretion in  seeking  to  retain  the  levy, 
and  secure  his  client's  claim.     The 
sheriff,    under    such    circumstances, 
would  naturally    notify    him  of  the 
demand  and  of  the  necessity  for  the 
required  indemnity,  and  look  to  him 
for    direction    in   the  premises.     At 
the  time  of  the  demand,  neither  the 
sheriff    nor    attorneys  had    incurred 
any  liability  by  reason  of  the  levy. 
Barry    v.    McGrade,    14    Minn.  163. 
But,     after    the     proper     statutory 
demand,  the  sheriff  might  abandon 
the  levy  unless  his  request  for  indem- 
nity  was    complied    with,    however 
lawful  or  proper  it  may  have  been. 

The  effect  of  the  statute  which  it 
thus  interposed  for  the  sheriff's  pro- 
tection is  quite   material  in  the  con- 


680 


Chap.  I.] 


ATTORNEYS    AT    LAW. 


§816. 


But  it  has  been  held  that  the  attorney  has  no  implied  author- 
ity to  bind  his  client  by  a  bond  on  appeal,'  or  by  a  bond  in 


sideration  of  this  case.  As  the  re- 
sult of  it,  when  the  exigency  arises, 
unless  the  plaintiff  in  execution,  or 
some  one  in  his  behalf,  actively  inter- 
vene, he  may  lose  the  benefit  of  a 
valid  levy.  The  execution  of  the 
required  instrument  of  indemnity  in 
this  case  was,  therefore,  directly  in 
the  line  of  proceedings  for  the  collec- 
tion of  the  judgment,  and  was  doubt- 
less considered  by  the  attorney  bene- 
ficial to  his  client.  Under  such  cir- 
cumstances, we  are  of  the  opinion 
that  his  acts  in  the  matter  of  the  exe- 
cution of  the  undertaking  should  not 
be  deemed  to  be  beyond  the  scope  of 
his  employment.  Clark  v.  Randall,  9 
Wis.  135  (76  Am.  Dec.  252);  Whar- 
ton on  Agency,  §§  585-9;  Moulton  v. 
Bowker,  115  Mass.  36;  Weeks  on 
Attorneys,  §  218;  Nelson  v.  Cook,  19 
111.  440;  Gorham  v.  Gale,  7  Cow.  739 
(17  Am.  Dec.  549);  Union  Bank  •?>. 
Geary,  5  Pet.  99;  Newberry  v.  Lee,  3 
Hill,  523;  Oestrich  ».  Gilbert,  9  Hun 
(N.  Y.)  242;  Jenney  v.  Delesdernier, 
20  Me.  183.  The  attorney  is  answer- 
able to  his  clients  in  damages  for  any 
abuse  of  his  trust,  or  the  consequences 
of  his  ignorance,  negligence,  or  indis. 
cretion;  but  he  is  no  more  likely  to 
abuse  his  discretion  in  a  proceeding 
of  this  kind  than  in  many  others  of 
equal  importance  in  the  progress  of 
the  suit.  And,  to  off.set  the  liability 
60  incurred,  the  execution  creditors 
will  retain  the  fruits  of  the  levy.  The 
'undertaking'  provided  for  by  the 
section  of  the  statute  under  consider- 
ation—Gen. St.  1878,  c.  66,  §  154 
(which  is  a  transcript  of  N.  Y,  Code, 
§  216) — need  not  be  executed  by  the 
plaintiffs  in  the  suit  personally,  1 
Wait's  Practice,  743-4." 
Speaking  of  Clark  v.  Randall,  aupra. 


the  court  say:  "  We  believe  the  doc- 
trine of  that  case  to  be  sound  and  rea- 
sonable. We  have  not  omitted  to  con- 
sider the  distinction  between  the 
power  and  aut  hority  of  an  attorney  be- 
fore and  after  judgment.  We  believe, 
however,  that  this  distinction  is  less 
marked  than  formerly,  in  view  of  the 
remedies  which  may  be  employed 
after  judgment  (such  as  garnishment, 
supplementary  proceedings,  &c.),  and 
the  extent  and  variety  of  the  services 
which  may  be  required  to  secure  and 
collect  the  same.  If  he  is  employed 
for  such  purpose,  he  must  be  deemed 
vested  with  reasonable  discretion  in 
the  selection  and  use  of  remedies  to 
accomplish  the  object  in  view.  An 
exigency  arising  in  the  absence  of  his 
client,  requiring  the  exercise  of  his 
discretion,  it  may  be  his  duty  to  act 
as  he  would  advise  his  client  to  act  if 
present,  and  when  he  simply  adopts 
a  remedy  which  the  law  provides,  or 
uses  customary  expedients  or  pro- 
cesses to  secure  and  collect  the  debt, 
his  acts  should  not  be  permitted  to 
prejudice  public  officers  and  others 
who  are  entitled  to  regard  him  as  the 
adviser  and  representative  of  his 
client.  Jenney  v.  Delesdernier,  supra, 
191;  Wieland  v.  White,  109  Mass. 
392;  Wharton  on  Agency,  §  589.  In 
Butler  V.  Knight,  L.  R.  2  txch  109, 
113,  the  court  said,  that  it  would  be 
mischievous  to  hold  'in  any  case 
where  evidence  existed  of  the  rela- 
tion of  attorney  and  client  having 
been  continued  or  recreated  (after 
judgment),  that  the  attorney  had  not 
authority  to  act  according  to  the 
exigency  of  the  case.'  " 

1  Ex  parte  Holbrook,  5  Cow.  (N.Y.) 
35;  Clark®.  Courser,  29  N.  H.  170. 
But  see  Adams  «.  Robinson,  1  Pick. 


681 


§  817.  THE    LAW    OF    AGENCY.  [Book    Y. 

replevin.'  So  it  has  been  held  that  the  employment  of  an  attor- 
ney to  prosecute  an  injunction  suit,  gave  him  no  implied  author- 
ity to  bind  his  client  to  indemnify  a  third  person  who  becomes 
surety  on  the  injunction  bond.'  The  unauthorized  execution  of 
the  bond  or  other  undertaking  could,  of  course,  be  subsequently 
ratified  and  confirmed  by  the  client,  and  such  a  ratification  would 
be  conclusively  presumed,  if  the  client,  with  full  knowledge  of 
the  facts,  accepted  and  retained  the  proceeds  derived  from  the 
levy  or  other  act.' 

§  817.  Authority  to  receive  Payment.  An  attorney  to  whom 
a  debt  or  demand  is  intrusted  for  collection  has  undoubted 
authority  to  receive  payment,  and  payment  to  him  will  discharge 
the  debtor.* 

Authority  to  receive  payment  carries  with  it,  as  a  necessary 
incident,  the  power  to  deliver  to  the  debtor  such  discharges, 
acquittances  or  evidences  of  payment  as  the  debtor,  upon  pay- 
ment, is  entitled  to  receive.*  The  attorney  would  also  be  author- 
ized to  accept  partial  payments  to  apply  on  the  debt,*  but  he  has 
no  implied  authority  to  accept  part  in  satisfaction  of  the  whole, 
or  to  grant  to  the  debtor,  in  consideration  of  a  partial  payment, 
any  extensions  or  other  indulgences  as  to  the  balance.' 

This  power  to  receive  payment  depends  upon  the  fact  that  the 
attorney  is  authorized  to  collect,  and  this  authority  may  be  with- 
drawn by  the  client  at  any  time.  It  is  the  duty  of  a  debtor  who 
would  make  payments  to  an  attorney,  to  ascertain  that  the  attor- 
ney is  authorized  to  receive  them,  and  if  he  does  not,  he  pays  at 
his  peril.  If  the  client  has  held  the  attorney  out  as  authorized 
to  receive  payment,  third  persons  may  rely  upon  the  authority  as 
in  other  cases,  until  they  have  notice  that  it  is  withdrawn.' 

(Mass.)  4G3,  where  it  was  held  that  Varley   v.    Garrard,    2    Dowl.    490; 

the  attorney  might  execute  a  recog-  Powel  ®.  Little,  1  W.  Black.  8;  Hud- 

nizance  on  appeal.  son  v.    Johnson,  1    Wash.  (Va.)  10; 

'  Narraguagus  Land  Proprietors  v.  Carroll  County  v.  Cheatham,  48  Mo. 

Wentworth,  36  Me.  339.  385. 

s  White  V.  Davidson,  8   Md.   169,  «  See  ante,  %  385. 

63  Am.  Dec.  699.  «  Pickett  v.  Bates,  3  La  Ann.  627; 

3  Bank  of  Augusta  v.   Conrey,   28  Rogers  v.  McKenzie,  81  N.  C.  164. 
Miss.  667;  Dove  e.  Martin,  23  Miss.  '  See  ante,  §  378. 

588.  •  See  ante,  %  373. 

*  Yates  V.  Freckleton,  2  Doug.  623; 

682 


Chap.  I.]  ATTORNEYS   AT   LAW.  §  818. 

Before  such  notice,  payment  to  the  attorney  binds  his  client, 
but  after  such  notice,  it  does  not.* 

in  ordinary  cases  the  authority  of  the  attorney  may  be  shown, 
either  by  direct  evidence  of  his  appointment  or  by  acquiescence  or 
ratification  or  course  of  dealing.*  But  where  money  is  due  upon 
a  written  security,  a  more  stringent  rule  applies.  In  such  cases 
it  is  incumbent  upon  the  debtor,  if  he  pays  to  an  attorney,  either 
to  have  express  authority  to  pay  to  him,  or  to  see  to  it,  in  each 
instance,  that  the  attorney  then  has  the  security  in  his  possession; 
for  if  the  possession  of  the  securities  be  withdrawn,  although 
the  debtor  may  have  had  no  notice  of  the  withdrawal,  the  attor- 
ney's authority  to  receive  payment  upon  them  ceases  with  their 
withdrawal.'  The  fact  that  the  attorney  negotiated  the  loan,  or 
transacted  the  business,  for  which  the  securities  were  given,  fur- 
nishes no  exception  to  this  rule.* 

§  818.  Same  Subject— After  Judgment.  Although  the  early 
cases  lay  down  the  rule  that  the  attorney's  authority  ceases  with 
the  rendition  of  the  judgment,  the  modern  rule  is  well  established 
that  his  authority,  by  virtue  of  his  general  retainer,  continues  for 
the  collection  of  the  judgment,'  and  he  may  receive  the  money  on 
it,  even  after  the  levy  of  the  execution  until  the  debtor's  right  to 
redeem  has  expired.' 

Payment  of  the  judgment  to  him,  even  by  a  stranger,  is  bind- 
ing upon  the  client,  and  upon  payment  the  attorney  is  author- 
ized to  execute  and  deliver  to  the  debtor  a  proper  satisfaction  and 
discharge  of  the  judgment.^ 

But  this  rule  applies  only  to  the  attorney  of  record  in  the  case. 
Payment  to  an  attorney  who  was  employed  for  some  specific 

»  Weist  V.  Lee,  3  Yeates  (Penn.)  164;  Miller  v.  Scott,    21    Ark.   396; 

47.  Frazier  v.  Parks,  56  Ala.  363;  Wycofl 

8  Smith  V.  Kidd,  68  N.    Y.  130,  23  v.  Bergen,  1  N.  J.  L.  (Coxe)  214;  Mc- 

Am.  Rep.  157.  Carvers.  Nealey,  1  G.  Greene, (Iowa) 

»  Williams  «.  Walker,  2  Sandf.  (K  360;  Yoakum  v.  Tilden,  3   W.   Va. 

Y.)  Ch.  325;  Doubleday  v.  Kress,  50  167;  Whiter.  Johnson,   67  Me.   287; 

N.  Y.  410,  10  Am.  Rep.   502;  Smith  Gray  v.  Wass,    1    Me.    257;  Conway 

V.  Kidd,  63  N.  Y.  130,  23  Am.  Rep.  County  v.  Little  Rock,&c.  Ry  Co.,  39 

157.  Ark.  50;  Smyth  v.  Harvie,  31  111.  62, 

*  Henn  v.  Conisby,  1  Ch.   Cas.  93;  83  Am.  Dec.  203. 

Smith  V.  Kidd,  mpra.  •  White  v.  Johnson,  67  Me.  287. 

•  Rogers  «.    McKenzie,    81  N.  C.         »  Miller  v.  Scott,  31  Ark.  896. 

683 


§819. 


THE    LAW    OF    AGBNOT. 


[Book  Y. 


purpose,  as  to  assist  upon  the  trial  only,  or  to  argue  a  motion,  or 
to  collect  the  evidence,  would  not  be  payment  to  the  client.' 

It  is  understood  also  that  the  question  is  now  as  to  the  power 
implied  from  a  general  retainer.  The  client,  may,  of  course, 
expressly  confer  more ;  or  he  may  limit  the  implied  power  by 
notice  of  a  contrary  purpose. 

§  819.  Same  Subject— What  constitutes  Payment.  But  this 
authority  of  the  attorney  to  receive  payment  is  authority  to 
receive  payment  in  full  only,  and  in  money  alone.  He  has  no 
authority  to  release  or  discharge  his  client's  claim  or  judgment 
without  the  actual  payment  of  its  full  amount."  And  the  pay- 
ment must  be  in  money.'  The  attorney  can  neither  sell,  assign 
or  compromise  the  debt  or  judgment,  nor  receive  notes,  warrants, 
goods,  chattels  or  land  in  payment.*  The  money  he  receives 
must  also  be  that  which,  by  the  common  consent  of  the  com- 
munity, passes  as  such  at  its  par  value.'  Thus  he  may  not 
receive  in  payment,  a  county  warrant;  *  or  a  bond  ;  '  or  the  note 
of  the  debtor  or  of  a  third  person  ; '  or  a  draft  on  a  third  person 
payable  in  the  future  ;  •  or  a  judgment  against  another  ;"  nor  can 


>  Cameron  v.  Stratton ,  14  111.  App. 
270. 

'  Beers  v.  Hendrickson,  45  N.  T. 
665;  Mandeville  v.  Reynolds,  68  K  Y. 
628;  Rice  v.  Troup,  63  Miss.  186; 
Miller  v.  Lane,  13  111  App.  648;  Rob- 
inson u.  Murphy,  69  Ala.  543;  Har- 
row V.  Farrow's  Heirs,  7  B.  Mon. 
(Ky.)  126,  45  Am.  Dec.  60;  Gilliland 
9.  Gasque,  6  S.  0.  406;  Tankersleyu. 
Anderson,  4  Desau.  (3.  C.)  44;  De- 
Mets  «.  Dagron,  53  N.  Y.  635;  Jew- 
ett  D.  Wadleigh,  33  Me.  110;  Vail  v. 
Conant,  15  Vt.  314;  Bigler  v.  Toy,  63 
Iowa  687. 

3  Herriman  v.  Shomon,  84  Kan.387; 
86  Am.  Rep.  261;  Walker  i?.  Scott,  13 
Ark.  644;  McCarver  v.  Nealey,  1  G. 
Greene  (Iowa)  360;  Wiley  v.Mahood, 
10  W.  Va.  206;Kent  v.  Chapman, 
18  W.  Va.485;  Lord  v.  Burbank,  18 
Me.  178;  Vanderline  v.  Smith,  18  Mo. 
App.  55. 

*  Herriman   v.  Shomon,    24    Kan. 


387.  36  Am.  Rep.  261;  Miller  tJ.Lane, 
13  III.  App.  648;  Fassitt  v.  Middle- 
ton,  46  Penn.  St.  214,  86  Am.  Dec. 
535;  Campbell's  Appeal,  29  Penn.  St. 
401,  72  Am.  Dec.  641;  Rowland  v. 
Slate,  58  Penn.  St.  198;  Kirk's  Ap- 
peal, 87  Penn.  St.  243,  30  Am.  Rep. 
357;  Boren  v.  McGehee,  6  Port.  (Ala.) 
432,  31  Am.  Dec.  695. 

*  See  cases  cited  under  notes  1  and 
2,  p.  685  post. 

•  Herriman  v.  Shomon,  supi'a. 

7  Smock  V.  Dade, 5  Rand.  (Va.)  639; 
16  Am.  Dec.  780;  Kirk  v.  Glover,  5 
Stew  &.  P.  (Ala.)  340. 

8  Jeter  v.  Haviland,  24  Ga.  253; 
Langdon  v.  Potter,  13  Mass.  319; 
Garvin  v.  Lowry,  7  Smed.  &  M. 
(Miss.)  24;  Jones  v.  Ransom,  3  Ind. 
327;  Baldwin  v.  Merrill,  8  Humph. 
(Tenn.)  133. 

»  Moye  V.  Cogdell,  69  N.  C.  93. 
'"  Clark  v.  Kingsland,  1  Smed.    & 
M.  (Miss.)  248. 


684 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  820. 

he  accept  real  estate  in  satisfaction  of  a  money  judgment;'  nor 
may  he  receive  Confederate  notes  *  in  payment  or  depreciated 
bills  of  any  kind.' 

So  the  attorney  has  no  authority  to  apply  his  client's  claim  or 
jndgment  in  payn^.ent  of  any  debt  of  his  own,  or  to  receive  his 
own  note  or  obligation  in  payment,  or  to  permit  a  debt  owing 
from  himself  to  be  set  off  against  his  client's  claim.* 

The  client  may  of  course  expressly  authorize  any  of  these 
modes  of  payment  to  be  adopted,  but  the  authority  does  not  flow 
from  the  general  retainer. 

The  client  may  also,  as  in  other  cases,  ratify  an  unauthorized 
act  of  the  attorney,  thus  giving  it  validity   from  the  beginning. 

§  820.  Authority  to  enforce  Judgment.  And  not  only  has 
the  attorney  authority  to  receive  payment  of  the  judgment,  but 
he  has  also  general  authority  to  take  the  steps  necessary  to  enforce 
its  payment.  For  this  purpose  he  may  sue  out  the  necessary 
execution  or  other  process,'  direct  its  service  by  the  proper  offi- 
cer,* and.  as  had  been  seen,  may,  in  some  cases,  indemnify  the 
officer  against  liability  on  account  of  the  service.''  The  authority 
of  the  attorney  to  control  the  execution  is  quite  plenary.  Thus  he 
may  give  the  officer  directions  relative  to  his  management  of  the 
execution  ;*he  may  direct  the  time  and  manner  of  enforcing  it  ;• 


•  Stackhouse  t>.  O'Hara,  14  Penn.  (N.  C.)  Eq.  171;  Wenans  ©.  Lindsey, 
St.  88;  Huston  v.  Mitchell,  14  S.  &  1  How.  (Miss.)  577;  Cost  v.  Genette, 
R.  (Penn.)  307;  Stokely  v.  Robinson,  1  Port.  (Ala.)  212;  GuUett®.  Lewis,  3 
34  Penn.  St.  315;  Kirk's  Appeal,  87  Stew.  (Ala.)  28;  Craig  c.  Ely,  5  Stew. 
Penn.  St.  243;  30  Am.  Rep.  357.  &  P.  (Ala.)  354. 

•  Harpers.  Harvey,  4  W.  Va.  539;  «  White  v.  Johnson,  67  Me.  287; 
Railey  •».  Bagley,  19  La  Ann.  172;  Union  Bank  v.  Geary,  5  Pet.  (U.  S.) 
Davis  D.  Lee,  20  La.  Ann.  248.  98;  Conway  County  v.  Little    Rock 

3  West    «.    Ball,     12    Ala.     346;  &c.  Ry  Co.,   39    Ark.   50;  Farmers' 

Chapman   v.   Cowles,    41    Ala.    103;  Bank  ».  Mackall,  3  Gill.  (Md.)447. 

91  Am.  Dec.  508;  Lawson  v.  Bettison,  •  Willard  v.  Goodrich,  31  Vt.   597; 

12  Ark.  401;  Trumbull  v.  Nicholson,  Gorham  u  Gale,  7  Cow.  (N.  Y.)  739; 
27111,  149;  Commissioners  ».  Rose,  1  17  Am.  Dec.  549;  Lynch  c.  Common- 
Desau.  (S.  C.)  464;  Walker  «.  Scott,  wealth,  16  Serg.  &  R.  (Penn.)  368;  16 

13  Ark.  648.  Am.  Dec.  582;  Brackett  v.  Norton,  4 
«  Wiley  V.  Mahood,  10  W.  Va.  206;  Conn.  517,  10  Am.  Dec.  179. 

Keller  v.  Scott,  2  Smed  &  M.  (Miss.)  i  See  ante,  816. 

81;  Hamrick  t>.  Combs,  14  Neb,  381;  «  Brackett  v.   Norton,  4  Conn.  517, 

Wilkinson  v.  Holloway,7  Leigh  (Va.)  10  Am.  Dec.  179. 

277:  Child  v.  D wight,  1  Dev.  &  Bat.  «  Gorham  v.  Gale,  7  Cow.  (N.  Y.) 

685 


§  820.  THE   LAW   OF    AGENCY.  [Book  V. 

he  may  agree  to  delay  its  issue  for  a  limited  time/  or  may 
stay  proceedings  under  it,  when  issued,  during  a  reasonable 
period,'  if  it  be  done  honestly  and  in  the  exercise  of  a  reasonable 
discretion  ;  and,  if  the  lien  of  the  judgment  or  execution  will  not 
thereby  be  lost,  he  may  direct  its  return  to  be  delayed;*  he 
may  direct  a  sale  under  it  to  be  suspended  ;  *  and  may  direct  a 
postponement  of  the  sale  after  a  levy." 

But  it  is  held  in  New  York  that  the  attorney  has  no  implied 
authority  to  direct  the  officer  as  to  what  property  he  shall  levy 
upon,  and  that,  if  he  does  so,  his  client  incurs  thereby  no 
liability.' 

But  the  attorney  has  no  implied  authority  to  release  the  lien 
of  the  judgment,  or  the  execution  upon  goods,^  or  land,"  or 
discharge  the  defendant  from  imprisonment,  without  full  pay- 
ment or  satisfaction  ;  »  nor  has  he  authority  to  stay  the  issue  of 
the  execution  for  so  long  a  period  that  the  lien  of  the  judgment 
will  be  lost ;  '•  nor  can  he  postpone  his  client's  lien  to  that  of 
others."  Neither  has  the  attorney  authority  to  bid  for,  or  pur- 
chase, property  for  his  client  at  an  execution  sale,  or  to  author- 
ize any  one  else  to  bid  or  purchase  for  him." 

The  authority  of  the  attorney  to  issue  execution  extends  to 

739,  17  Am.  Dec.  549 ;  Lynch  «  Com-  •  Fritchey  r.  Bosley,   56  Md.   96; 

monwealth,  16  Serg.  &  R.  (Penn.)  368  Phillips  v.  Dobbins,  56  Ga.  617; 

16  Am.  Dec.  582.  *  Kellogg  v.  Gilbert,  10  Johns,  (N. 

»  Wieland  «.  White,  109  Mass.  393;  T.)  220;  6  Am.  Dec.  335;  Treasurers 

Silvis  V.  Ely,  3  W.  «&  S.  (Penn.)  420;  v.   McDowell,  1  Hill  (S.   C.)  184,  26 

White  ».  Johnson,  67  Me.  287.  Am.  Dec.  166 ;  Jackson  v.  Bartlett,  8 

2  Wieland  v.  White,  supra;  White  Johns.  (N.  T.)  361;  Scott  v.  Seller,  5 
u  Johnson,  mpra.  Watts,  (Penn.)  235;  Lewis  B.Gamage, 

3  McClure  v.  Colclough,  5  Ala.  65;  1  Pick.  (Mass.)  347;  Savory  v.  Chap- 
Bee  Walker  «.  Goodman,  21  Ala.  man,  11  Ad.  &  Ell.  829;  Connop  v. 
657;  Crenshaw  «.  Harrison,  8  Ala.  Cballis,  2  Exch.  484. 

g4^2  '*  Reynolds  v.  Ingersoll,  11  Smed. 

4  Lynch  «.  Commonwealth,  tupra.        &  M.  (Miss.)  249,  49  Am.  Dec.  57. 

6  Albertson    «.    Goldsby,    28    Ala.  "  Fritchey  v.    Bosley.   56  Md.  96; 

711,  65  Am.  Dec.  380.  Phillips  v.  Dobbins,  56  Ga.  617. 

BAverill  v.  Williams,   6  Denio  (N.  "  Beardsley  z).  Root,  11  Johns  (N. 

Y.)295;47  Am.  Dec.  252.     Welsh*.  Y.)  464,  6  Am.    Dec.  386;  Averill  «. 

Cochran,  63  N.  Y.    185;  Oestrich  v.  Williams,    4  Denio,  (N.  Y.)  295,  47 

Gilbert,  9  Hun  (K  Y.)  244.  Am,  Dec.  252;  Washington  «.   John- 

T  Banks  v.  Evans,    10  Smed.  &  M.  son,  7  Humph.  (Tenn.)  568;  Savery*. 

(:Miss.)38,  48  Am.  Dec.  734;  Jewett  r,  Sypher,  6  Wall.  (U.  8.)  157. 
Wadleigh,  32  Me.  110. 

686 


Chap.  L]  ATT0KNEY8   AT   LAW.  §  822. 

the  issuing  of  an  alias,  when  that  becomes  necessary.*  So  in  a 
proper  case,  he  may  institute  supplementary  proceedings,'  or 
autliorize  the  issue  of  a  scire  facias^  to  facilitate  or  enforce  the 
collection.* 

V. 

DUTIES    AND    LIABILITIES    OF    ATTORNEY   TO   CLIENT. 

§  821.  Bound  to  highest  Honor  and  Integrity.  The  exigencies 
of  life  require  not  only  that  the  client  should  often  entrust  to  his 
attorney,  the  care  and  management  of  important  affairs  of  busi- 
ness, involving,  perhaps,  the  client's  entire  property  and  posses- 
sions, but  also,  in  many  cases,  that  the  client's  reputation,  liberty 
or  life  should  depend  upon  the  skill,  judgment  and  ability,  and 
above  all,  upon  the  integrity,  honor  and  devotion,  of  the  attorney 
to  whom  he  has  confided  them.  The  proper  discharge  of  his 
duty  demands  also,  in  many  cases,  that  the  attorney  should  be 
made  the  confidant  to  whom  the  secrets  of  individuals  and  fami- 
lies, cherished  often  like  life  or  reputation,  or  concealed  from  all 
other  eyes,  must  be  disclosed  and  communicated.  The  necessi- 
ties of  the  client,  too,  are  known,  often,  only  to  his  attorney,  and 
strong  temptations  may  present  themselves  to  the  latter  to  make 
profit  from  his  knowledge  and  advantages. 

These  considerations,  and  many  others  which  readily  suggest 
themselves,  demand  that  he,  who  holds  himself  out  to  the  public 
as  one  qualified  to  accept  and  perform  these  important  trusts, 
responsibilities  and  duties,  should  not  only  bring  to  their  per- 
formance an  adequate  degree  of  skill,  learning  and  ability,  but 
that  he  should  also  be  bound  to  exercise  towards  his  client,  in  his 
relations  with  him,  the  highest  degree  of  honor,  integrity  and 
fidelity  to  his  client's  interests.  And  this  is  the  law.*  The  rela- 
tion is  one  of  trust  and  confidence  and  the  rules  which  govern  the 
conduct  of  other  persons  standing  in  fiduciary  relations,  apply 
with  special  force  to  the  dealings  of  the  attorney  with  his  client 

§  822.     Duty  to  disclose  adverse  Interests.    It  is  a  necessary 

» Cheever  «.  Mirrick,  2  N.  H.  376.  *  Cox  n.   Sullivan,   7  Ga.   144,  50 

t  Ward  V.  Roy,  69  N.  T.  96.  Am.  Dec.  386.     See  Pomeroy's  Eq. 

» Dearborn  ».  Dearborn,    15  Mass.      Jnr.  §903.     §§1075-1078. 

816;  Nichols  «.  Dennis,  R.  M.  Charlt. 

(Ga.)  188. 

687 


§  823.  THE   LAW    OF    AGENCY.  [Book  IV. 

corollary  to  the  principles  of  the  preceding  section,  that  it  is  the 
duty  of  the  attorney  to  freely  and  fully  disclose  to  his  client  any 
interest  which  he  may  have  in  the  subject-matter,  any  previous 
obligation  which  he  has  incurred  in  reference  to  it,  and  every 
other  bias,  interest  and  undertaking  which  may  disqualify  or  dis- 
able him  from  rendering  to  his  client  that  full  and  perfect  alle- 
giance which  this  relation  requires.' 

§  823.  Duty  to  remain  loyal.  Equally  obvious  and  impera- 
tive is  the  duty  of  the  attorney  to  keep  himself,  during  the  con- 
tinuance of  the  relation,  free  from  entangling  or  compromising 
alliances.  Like  every  other  servant,  he  can  not  serve  two  mas- 
ters, and,  having  undertaken  the  service  of  one,  he  is  bound,  by 
all  legal  and  moral  rules,  to  absolutely  refrain,  not  only  from 
putting  himself  voluntarily  in  a  situation  where  his  duty  and  his 
own  interest  will  conflict,  but  from  undertaking  or  accepting  any 
duties  or  obligations  to  those  whose  interests  are  opposed  to 
those  of  his  client. 

§  824.  Duty  to  use  reasonable  Care  and  Skill.  "It  is  the  mis- 
fortune of  members  of  the  learned  professions,"  says  Judge 
CooLET,  "  that,  in  a  very  considerable  proportion  of  all  the  cases 
in  which  their  services  are  employed,  their  efforts  must  neces- 
sarily fall  short  of  accomplishing  the  purpose  desired,  so  that  if 
they  do  not  disappoint  expectations,  they  must  at  least  fail  to 
fulfill  hopes.  For  this  reason  they  are  peculiarly  liable  to  the 
charge  of  failure  in  the  performance  of  professional  duty,  and  it 
is  therefore  important  to  know  exactly  what  it  is  that  the  pro- 
fessional man  promises  when  he  engages  his  services."  * 

The  proper  performance  of  the  duties  of  the  attorney  at  law, 
particularly  where,  as  in  the  United  States,  the  same  practitioner 
often  undertakes  to  act  in  all  of  the  various  departments  of  the 
profession, — requires  upon  the  part  of  the  attorney  the  possession 
and  exercise  of  an  adequate  degree  of  learning,  skill  and  dili- 
gence. The  law,  however,  is  not  free  from  doubt,  and  it  is  im- 
possible for  any  man  to  know  it  all.  The  wisest  men  in  the 
profession  differ,  not  only  as  to  what  the  law  is,  but  also  as  to 
how  it  shall  be  applied.  No  attorney,  therefore,  can  be  rightly 
held  to  infallibility.'     At  the  same  time,  there  are  certain  rules 

»  Williams  t>.  Reed,  8  Mason  (U.  8.         «  Cooley  on  Torts,  p.  648. 
0.  C.)  404.  ■  "  No  attorney,"  said  Abbott,  0. 

688 


Chap.  I.]  ATTORNEYS    AT    LAW.  §  S2i. 

and  principles  of  which  no  one,  who  undertakes  to  practice  the 
profession,  should  be  permitted  to  be  ignorant.  So  it  is  impossi- 
ble for  any  man  to  exercise  perfect  care  and  diligence,  but  there 
are  also  certain  things  which  no  man,  who  assumes  the  responsi- 
bilities of  attorney,  could  be  allowed  to  overlook.  Again,  it  is 
not  unreasonable  to  expect  that  the  attorney  whose  practice  lies 
in  the  courts  of  the  metropolis  should  be  chargeable  with  a 
higher  degree  of  skill,  in  certain  departments,  than  the  members 
of  a  rural  bar,'  but,  on  the  other  hand,  the  latter,  as  to  the  gen- 
eral principles  of  the  profession,  should  be  no  more  ignorant 
than  the  former.  It  is  obvious,  therefore,  that  there  must  be  a 
rule  of  responsibility  which  will  neither  impose  upon  the  prac- 
titioner an  unreasonable  and  hazardous  responsibility,  nor  relieve 
him  from  all  responsibility  whatever. 

This  rule  of  responsibilit}''  may  be  stated  as  follows  :  A  person 
who  holds  himself  out  to  the  public  for  employment,  as  an  attor- 
ney at  law,  impliedly  contracts  with  those  who  employ  him : 

1.  That  he  possesses  that  reasonable  degree  of  learning,  skill 
and  experience  which  is  ordinarily  possessed  by  attorneys  at  law, 
and  which  is  ordinarily  regarded  by  the  community  and  by  those 
conversant  with  that  employment,  as  necessary  and  sufficient  to 
qualify  him  to  engage  in  that  business. 

2.  That  he  will  use  reasonable  and  ordinary  care  and  diligence 
in  the  exertion  of  his  skill  and  the  application  of  his  knowledge 
to  accomplish  the  purpose  for  which  he  is  employed.  But  lie 
does  not  undertake  for  extraordinary  care  or  diligence  or  for 
uncommon  skill. 

3.  That,  in  exerting  his  skill  and  in  applying  such  care  and 
diligence,  he  will  exercise  his  best  judgment.* 

J.  "is  bound  to  know  all  the  law;  N.  H.  460,  69  Am.   Dec.  388,   upon 

God  forbid  that  it  should  be  imagined  which  the  rule  given  iu  the  text  is 

that  an  attorney,  or  a  counsel,  or  even  based.     See  generally  that  attorney  ia 

a  judge  is  bound  to  know  all  the  law;  bound  to  the  possession  and  exercise 

or  that  an  attorney  is  to  lose  his  fair  of  reasonable  skill,  care  and  diligence. 

recompense  on  account  of  an  error,  Goodman  v.  Walker,  30  Ala.  482,  63 

being  such  an  error  as  a  cautious  man  Am,  Dec.  134;  Penniugtou  v.  Yell,  11 

might    fall    into."    In    Montriou    v.  Ark  213,  52  Am.   Dec.   262;  Fitch  v. 

Jelfcjrys,  2  C.  &  P.  113.  Scott,  3  How.    (Miss.)  314,   34  Am. 

'  Weeks  on  Atlorneys,  §  2S9.  Dec.  86;  Eggk-ston  v.   Boardman,  37 

2  See  Cooley  on  Torts,  p.  649,  where  Mich.   14;  Holmes  v.   Peck,  1  R.    I. 

the  learned  author  approves  the  rule  243;  Gilbert  v.  Williams,  8  Mass.  51, 

laid  down  in  Leighton  v.  Sargent,  27  5  Am.  Dec.  77;  Caverly  v.  McOwen, 

44  689 


§825. 


THE    LAW    OF    AGENCY, 


[Book  V. 


In  other  words,  he  agrees  that  he  possesses  at  least  the  average 
degree  of  skill  and  learning  in  his  profession  in  that  part  of  the 
country  in  which  he  practices,  and  that  he  will  exercise  that 
learning  and  skill  with  reasonable  care  and  diligence.' 

§  825.  Same  Subject— Errors  in  Law  or  Judgment.  The  law 
is  not  only  the  most  comprehensive  of  sciences,  but  it  is  also  a 
constantly  progressing  one.  The  daily  demands  made  upon  it, 
by  the  necessities  of  our  modern  civilization,  require  not  only 
that  it  should  be  called  upon  to  adjust  new  phases  of  old  ques- 
tions, but  that  it  should  prove  adequate  to  the  determination  of 
problems  entirely  new  in  the  history  of  jurisprudence.  Under 
our  complex  political  system,  each  State  is,  within  certain  limits, 
the  final  arbiter  of  the  legal  rules  which  shall  prevail  within  its 
jurisdiction,  and  it  is  inevitable  that  more  or  less  of  conflict 
should  exist.  Although  the  decisions  of  other  States  are  looked 
upon  with  respect,  and  frequently  followed,  they  are  not  author- 
itative, and  until  a  question  has  been  directly  passed  upon  by  the 
court  of  last  resort,  the  practitioner  in  any  State  can  feel  no  abso- 
lute certainty  as  to  what  the  law  in  his  State  is  upon  the  ques- 
tion. Upon  certain  questions,  too,  the  decisions  of  the  State 
courts  are  subject  to  review  by  the  Supreme  Court  of  the  United 


123  Mass,  574;  Stevens  v.  Walker,  55 
111.  151;  Chase  v.  Heaney,  70  111.  268 
Reilly   v.    Cavaaaugh,    29  lad.   435 
Morrill    v.    Graham,     27    Tex.    64G 
Evans  v.  Watrous,  2  Port.  (Ala.)  205 
Mardis   v.    Shackleford,  4  Ala.   493 
Sevier  v.  Holliday,  2  Ark.   512;  Pal 
mer  v.  Ashley,  3  Ark.   75;  Wilson  v. 
Russ.  20  Me.  421;  Pitt  v.   Yalden,  4 
Burr.  2060;  Kemp  v.   Burt,  4  B.   «& 
Ad.  424;  Godefroy  v.   Dalton  6  Bing. 
460;  Laidler  v.  Elliott,  3  B.  &  C.  738; 
Lee  v.  Dixon,  3  Fost.  &  F.  744;  Par- 
ker u.  Rolls,   14  Com.  B.   601;  Mon- 
triou  V.   JefEerys,  2  Car.  &  P.  113; 
Elkington  v.  Holland,  9  M.  &  W.  658. 
»  Cooley  on  Torts,    p.    649.     The 
rule  is  frequently  laid  down,  partic- 
ularly in  the  older  cases,    that  the 
attorney  is  liable  only  for  gross  ignor- 
ance   or    neglect.     Gross  negligence 
has  been  well  said  to  be  simply  negli- 


gence with  an  epithet.  The  expres- 
sion is  not  accurate.  "  Some  law- 
writers  and  some  adjudged  cases  are 
guilty  of  inaccuracy  in  the  employ- 
ment of  the  phrase  '  gross  negligence.' 
Our  own  court  fell  into  this  error  in 
the  case  of  Evans  v.  Watrous,  2  Port. 
205.  It  is  there  said  that  an  attorney 
is  not  liable  '  unless  he  has  been 
guilty  of  gross  negligence.'  In  the 
same  paragraph  it  is  asserted  that  he 
'  is  bound  to  use  reasonable  care  and 
skill,'  and  the  meaning  attributed  by 
the  writer  of  that  opinion  to  the  ex- 
pression 'gross  negligence'  is  the 
want  or  absence  of  '  reasonable  care 
and  skill.'  Thus  explained,  that 
opinion  defines  the  true  measure  of 
an  attorney's  duty  and  liability.'* 
Stone,  J. ,  in  Goodman  v.  Walker,  30 
Ala.  482,  65  Am.  Dec.  134. 


690 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  825. 

States.  Solemn  decisions  pronounced  by  the  court  at  one  period 
are  not  unfreqnently  overruled  by  the  same  court  at  a  later 
period,  and  rules  which  have  been  regarded  and  acted  upon,  as 
sound,  for  years,  are  often  found  to  have  been  erroneous. 

With  that  part  of  the  law  which  has  been  made  the  subject 
of  statutory  enactment,  less  uncertainty  exists,  but  statutes  are 
frequently  declared  to  be  unconstitutional  by  the  courts,  or  are 
repealed  by  subsequent  legislatures. 

It  is,  therefore,  not  only  impossible  for  any  man  to  know  all 
the  law,  but  it  is  also,  in  many  cases,  impossible  for  him  to  say 
with  certainty  what  is  the  law  in  reference  to  a  particular 
fiubject. 

But  at  the  same  time,  the  main  body  of  the  law  is  reasonably 
definite,  and  there  certainly  are  principles  so  well  established 
that  no  lawyer  could  be  permitted  to  remain  in  ignorance  of 
them.  Thns,  in  one  case,'  it  is  said  that  he  is  liable  for  the  want 
of  proper  knowledge  of  all  matters  of  law  in  common  use,  or  of 
such  plain  and  obvious  principles  as  every  lawyer  is  presumed  to 
understand.  So,  in  another  case,"  it  has  been  said  that  he  is 
bound  to  understand  the  leading  and  fundamental  principles  of 
the  common  law,  and  cannot  be  excused  for  ignorance  of  the 
public  statutes  of  the  State.  Many  attempts  have  been  made  to 
state  a  comprehensive  rule  upon  this  subject,  and,  in  a  well  con- 
sidered case,*  the  court  lay  down  the  rule  to  be  that,  if  the  law 
governing  the  matter  in  question  was  well  and  clearly  defined, 
both  in  the  text-books  and  in  the  decisions  of  his  own  State,  and 
if  it  has  existed  and  been  published  long  enough  to  justify  the 
belief  that  it  was  known  to  the  profession,  then  a  disregard  of  it, 
by  an  attorney  at  law,  renders  him  accountable  for  the  losses 
caused  by  such  negligence  or  want  of  skill ; — negligence,  if, 
knowing  the  rule,  he  disregarded  it;  want  of  skill,  if  he  was 
ignorant  of  it. 

But  in  general,  no  more  definite  rule  upon  the  subject  can  be 
laid  down  than  that  already  given  ; — that  the  attorney  contracts 
for  reasonable  skill  and  reasonable  diligence,  but  not  for  infalli- 
bility, or  freedom  from  error.  He  cannot,  therefore,  be  held 
liable  for  an  error  of  law  or  judgment  such  as  a  cautious  man 

»  Morrill  v.  Graham,  37  Tex.  646.  »  Goodman  v.  Walker,  30  Ala.  482. 

•Estate  of  A.  B.,  1  Tucker  (N.  Y.      68  Am.  Dec.  134. 

Surrogate)  247, 

691 


e  826.  THE  LAW  OF  AGENCY.  [Book  V. 

mio-ht  fall  into ;  '  nor  for  an  error  in  construing  a  doubtful  act 
of  the  legislature;'  nor  for  an  error  upon  a  point  of  law  upon 
which  a  reasonable  doubt  may  be  entertained  ;  '  nor  for  an  error 
of  judgment  upon  points  of  new  occurrence,  or  of  nice  or  doubt- 
ful construction.*  So  he  cannot  be  held  chargeable  with  negli- 
gence if  he  accepts,  as  a  correct  exposition  of  the  law,  a  solemn 
decision  of  the  supreme  court  of  his  State,  in  the  absence  of  a 
contrary  decision  of  the  Supreme  Court  of  the  United  States, 
upon  a  question  there  subject  to  review.'  Ho  is,  however,  liable 
for  the  consequences  of  ignorance  or  non-observance  of  the  ordi- 
nary rules  of  practice  of  the  courts  in  which  he  undertakes  to  do 
business ;  for  the  want  of  reasohable  care  in  the  preparation  of 
his  cases  for  trial,  in  his  attendance  at  the  court  with  his  wit- 
nesses, and  in  the  management  of  so  much  of  the  conduct  of  the 
cause  as  is  entrusted  to  him.* 

So  he  is  bound  to  take  notice  of  changes  in  or  by  the  public 
statutes  of  his  State,  and  will  be  liable  to  his  client  for  losses 
caused  by  his  neglect  to  do  so.' 

5  826.  Same  Subject— Negligenoe  in  Collecting.  It  is  the 
duty  of  the  attorney,  who  undertakes  the  collection  of  a  claim, 
to  prosecute  that  object  with  reasonable  diligence.  He  does  not 
undertake  at  all  events  to  make  the  money,  nor  does  he  guaran- 
tee the  solvency  of  the  debtor.  Neither  does  he  impliedly  agree 
that  he  will  resort  to  all  or  any  means  to  secure  the  money,  or 
that  he  will  pursue  the  debtor  with  unceasing  exertions.  Pie 
does,  however,  agree  that  he  will  use  all  reasonable  and  proper 
means  to  make  the  money,  and  that  he  will  not  permit  the  claim 
to  be  lost  through  his  negligent  inattention  to  his  duty.* 

This  undertaking  imposes  upon  the  attorney  the  duty  to  sue 
out  all  process,  mesne  as  well  as  final,  which  may  be  necessary  to 

•  Montriou  v.  Jefferys,  2  Car.  &  P.  •  Godefroy  v.  Dalton,  6  Bing.  460. 
113  T  Estate  of  A.  B.,  1  Tucker  (N.  Y. 

s  Elkington  v.  Holland,  9  M.  &  W.  Surrogate)  247. 

653;    Bulmer  c.    Gilman,    4  Man.  &  »  Cox  ®.  SuUlvaa,  7  Ga.  144,  50  Am. 

Gra'ng.  108.  Dec.  3S6;    Goodman  v.    Walker,   30 

8  Kemp  V.  Burt,    1   Nev.    &  Man.  Ala.  482,  68  Am.    Dec.    134;    Cox  ®. 

262.  Livingston,  2  W.   «&  S.  (Penn.)  103, 

*  Godefroy  v.  Dalton,  6  Bing,  4G0,  37  Am.  Dec.  486;  Gilbert  ij.  Williams, 

6  Marsh  r.  Whitmore,  21  Wall  (U.  8  Mass.  51,  5  Am.  Dec.  77;  Fitch  v. 
S.)  178;  Hastings  v.  Halleck,  13  Cal.  Scott,  3  How.  (Miss.)  314,  34  Am. 
203.  Dec.  86. 

693 


Chap.  I.]  ATTORNEYS   AT   LAW.  §  826. 

effect  the  object ;  and  to  pursue  the  cause,  through  all  its  stages, 
until  the  money  is  made  or  it  is  demonstrated  that  it  can  not  be 
made  by  legal  process.*  This  rule,  however,  is  subject  to  the 
exception  that  the  attorney  may  be  justified  in  ceasing  to  proceed 
with  the  cause,  unless  specially  instructed  otherwise,  when  he  is, 
in  good  faith,  influenced  to  this  course  by  a  prudent  regard  for 
the  interests  of  his  client.'  Such  delay  must,  however,  be  pru- 
dent, and  reasonable  in  duration,  and  must  not  contravene  posi 
tive  directions. 

In  accordance  with  this  rule  it  is  his  duty  to  sue  out  execution 
and  alias  writs  if  necessary  ;  to  pursue  the  bail,  and  all  those  who 
have  become  bound  with  the  defendant,  either  before  or  after 
judgment  in  the  progress  of  the  suit ;  to  pursue  the  sureties  on 
a  forthcoming  bond  ;  and  to  take  all  such  other  steps  as  may  rea- 
sonably be  necessary,  either  before  or  after  judgment,  to  recover 
from  any  party  who  has  become  liable.' 

The  attorney  is  not,  however,  bound  to  institute  new  collateral 
suits  without  special  instructions  to  do  so, — as  actions  against  the 
clerk  or  sheriff  for  neglect  in  the  issuing  or  serving  of  process. 
Nor  is  he  bound  to  attend,  in  person,  to  the  levy  of  the  execu- 
tion, or  to  search  for  property  upon  which  to  make  the  \evj. 
That  is  the  business  of  the  slieriff.*  Nor  is  he  liable  for  the 
neglect  of  the  sheriff. 

So,  it  has  been  held,  that,  where  a  writ  of  attachment  issues 
only  upon  the  filing  of  the  necessary  affidavit  and  bond,  the  attor- 
ney is  under  no  obligation  to  swear  to  his  client's  cause  of  action 
or  to  furnish  the  required  bond.* 

It  has  been  stated  that,  in  the  absence  of  peremptory  instructions, 
the  attorney  may  exercise  a  reasonable  discretion  as  to  when  to 
sue;  and  what  is  reasonable  is  a  question  to  be  determined  from 
all  the  facts  and  circumstances  of  the  case.*  But  this  discretion 
can  not  overrule  express  directions,  and  if  the  attorney  is 
instructed  to  sue  at  once  and  fails  to  do  so,  he  will  be  liable  for  a 
consequent  loss  of  tlie  debt,  notwithstanding  the  attorney  may, 
in  good   faith,  have  believed  that  the  delay  would  promote  the 

'  Pennington  v.  Yell,  11  Ark.  213,  »  Pennington  v.  Yell,  supra. 

52  Am.  Dec.  262;  Crooker  v.  Hutch-  *  Pennington  v.  Yell,  supra. 

inson  2  D.  Chip.  (Vt.)  117.  »  Foulks  v.  Falls,  91  Ind.  315. 

2  Pennington  v.  Yell,  supra;  Crook-  «  Rhiaes  v.  Evans,  66  Penn.  St.  193. 
er  V.  Hutchinson,  supra. 

693 


§  827.  THE   LAW   OF    AGENCY.  [Book  Y. 

interests  of  his  client.*  So  if  the  attorney  delays  action  until  the 
statute  of  limitations  has  run  against  the  claim,  he  will  be  liable 
for  the  loss  sustained.* 

§  827.  Same  Subject— Negligence  in  bringing  Suit.  The 
same  degree  of  skill  and  diligence  is  requisite  here  as  in  other 
cases : — that  which  is  reasonable  under  the  circumstances.  The 
negligence  complained  of  may  consist,  (a)  in  not  bringing  the 
action  in  the  proper  court,  or,  (J)  in  omitting  or  disregarding  a 
rule  of  law  or  practice  in  commencing  the  action,  or  (c)  in  suing 
out  or  using  defective  process  or  papers. 

a.  It  is  reasonable  and  proper, to  hold  the  attorney  chargeable 
with  knowledge  of  the  ordinary  and  well  settled  rules,  which 
govern  and  determine  the  jurisdiction  of  the  courts  in  which  he 
practices,  and  if,  through  ignorance  or  inattention,  he  violates 
them,  thereby  causing  injury  to  his  client,  he  is  liable.'  Thus  it 
is  held,  that  if  an  attorney  takes  out  a  writ  and  proceeds  thereon, 
in  a  court  of  special  and  peculiar  jurisdiction,  he  is  bound  to 
acquaint  himself  with  the  machinery  by  which  the  practice  of 
that  court  is  regulated,  and  to  see  that  it  is  adequate  to  the  carry- 
ing out  of  the  objects  of  the  suit ;  and  if  he  fails  to  do  so,  and 
the  client  suffers  loss  from  a  subsequent  discovery  that  the  pro- 
cess of  the  court  is  not  sufficient  for  the  well  known  needs  of  the 
action,  the  attorney  is  liable.*  So  if  he  brings  an  action  in  a 
court  of  limited  jurisdiction  on  a  cause  of  action  arising  beyond 
that  jurisdiction,  he  has  been  held  to  be  liable.' 

b.  An  attorney  may  also  reasonably  beheld  bound  to  know  and 
observe  the  well  settled  rules  of  law  and  practice  which  govern 
and  determine  the  form  of  action,  the  joinder  of  parties,  and  the 
form  and  sufficiency  of  the  pleadings ;  and  a  failure  to  do  so 
would  constitute  actionable  negligence. 

Thus  where  an  attorney  filed  a  declaration  in  the  name  of  a 
plaintiff  different  from  the  one  in  whose  favor  the  writ  was  issued, 

•  Gilbert  v.  Williams,  8  Mass.  51,  5  he  permitted  one  term  to  go  by  with- 

Am.   Dec.   77;  Cox  v.  Livingston,  3  out  commencing  suit. 

W.  &  S.  (Penn.)  103,  37  Am.  Dec.  «  Oldham  b.   Sparks,  28  Tex.   425; 

486;  Livingston  v.  Cox,  6  Penn.  St.  Hunter  tj.  Caldwell,  10  Q.  B.  CD. 

360;    in    which    six    months    delay  » Godefroy  v.  Dalton,  6  Bing.  468. 

against  a  failing  debtor  was  held  un-  «  Cox®.  Leech,  1  Com.  B.  (N  S.)617. 

reasonable;  Fitch  «.    Scott,   3   How.  «  Williams  ®.  Gibbs,  6  Ne v.  &  Man, 

(Miss.)  314,  34  Am.  Dec.  86,  where  788. 

694 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  828. 

the  Supreme  Court  of  Alabama,  referring  to  the  well  known  rule 
laid  down  by  Me.  Chitty,  and  adopted  by  that  court  nearly 
twenty  years  before,  that  "  the  declaration  must  pursue  the  writ 
in  regard  to  the  Christian  and  surnames  of  the  parties,"  *  said : 
"This  rule,  then,  had  existed  and  been  defined,  both  in  the  text- 
books and  our  own  decisions,  for  a  period  of  time,  before  the 
commencement  of  this  suit,  long  enough  to  justify  the  belief 
that  it  was  known  to  the  profession.  The  disregard  of  so  plain 
a  rule  betrayed  a  palpable  want  of  reasonable  skill  or  of  reason- 
able diligence,"  *  and  the  attorney  was  held  liable.' 

So  where  an  attorney  being  instructed  to  bring  an  action,  under 
a  statute,  against  apprentices,  proceeded  specifically  under  a  sec- 
tion which  applied  to  servants  only,  he  was  held  to  be  liable  for 
a  loss  resulting  from  the  error.  < 

c.  It  is  also  the  duty  of  the  attorney  to  use  a  reasonable  degree 
of  skill  and  diligence  in  the  preparation  of  the  process,  notices, 
and  other  papers,  which  he  issues  or  uses  in  the  institution  of 
or  progress  of  the  suit.'  And  although  the  paper  be  one  which 
it  was  not  his  duty,  as  the  attorney,  to  prepare,  yet  if  he  does 
undertake  to  prepare  it,  he  is  bound  to  reasonable  care.*  Thus 
where  an  attorney  in  preparing  a  writ,  made  use  of  a  printed 
blank  containing  the  common  counts,  with  blank  spaces  for  the 
insertion  of  the  amounts,  but  which  omitted  the  word  "  hundred" 
which  had  formerly  been  printed  in  the  blank,  and  the  attorney, 
not  noticing  the  omission,  neglected  to  write  in  the  word  hund- 
red, thus  reducing  the  amount  claimed  from  twelve  hundred  dol- 
lars to  twelve  dollars,  it  was  held  that  he  was  liable  for  a  loss  of 
the  demand  occasioned  by  the  error.  It  appeared  that  the  new 
blank  had  been  in  use  for  about  a  year,  and  that  the  attorney,  in 
fillincr  out  a  similar  writ  for  one  of  the  same  parties,  had  inserted 
the  word  hundred  in  its  proper  place.' 

§  828.  Same  Subject— Negligence  in  Trial  of  Action.  The 
attorney,  who  undertakes  the  trial  of  a  cause  in  court,  does  not 
thereby  agree  that  he  will  win  it  at  all  events,  or  that  he  will 

>  1  Chitty's  Pleading,  279.  *  Goodman  v.  Walker,  30  Ala.  483, 

«  Citing   Chapman    v.    Spence,    32  68  Am.  Dec.  134;  Varnum  v.  Martin, 

Ala.  588.  15  Pick.  (Mass.)  440. 

3  Goodman  v.  Walker,  30  Ala.  483,  •  Goodman  ■&.  Walker,  supra. 

68  Am.  Dec.  134.  '  Varnum  v.  Martin,  supra. 

*  Hart  V.  Frame,  6  CI.  &  Fin.  193. 

695 


§  829.  THE   LAW   OF   AGENCY.  [Book  V. 

conduct  it  with  the  highest  degree  of  learning,  skill  or  eloquence; 
but  his  contract  is  simply  for  a  reasonable  degree,  as  in  other 
cases.  But  if  the  attorney  fails  without  good  cause  to  attend  the 
trial  at  all,'  or  if  he  permits  the  cause  to  be  called  on  without  see- 
ing that  it  is  in  readiness  for  trial,*  or  if,  without  sufficient  reason, 
he  abandons  the  action,'  or  withdraws  the  defense,*  or  if  the  action 
or  defense  fails  by  reason  of  his  neglect  to  make  that  preparation, 
or  to  take  those  steps,  which  the  circumstances  reasonably 
required,  and  his  client  thereby  suffers  loss,  the  attorney  is 
responsible.' 

§  829.  Same  Subject— Negligence  in  examining  Titles.  An 
attorney  who  undertakes  the  examination  of  titles  to  real  estate, 
the  searching  of  the  records,  the  preparation  of  abstracts  thereof 
or  the  giving  of  opinions  upon  such  titles,  impliedly  contracts, 
with  those  who  employ  him,  that  he  possesses  that  reasonable 
degree  of  knowledge  and  skill  which  is  requisite  and  necessary 
under  such  circumstances ;  and  that  he  will  perform  the  duty 
with  reasonable  and  ordinary  care  and  diligence.  His  failure  to 
possess  such  reasonable  knowledge  and  skill,  or,  if  possessing  it, 
his  failure  to  exercise  it,  or  his  failure  to  use  such  reasonable  care 
and  diligence,  constitutes  negligence,  and  he  will  be  liable  to  his 
client  for  a  loss  or  injury  occasioned  thereby.* 

I  Swannell  v.  Ellis,  1  Bing.  347.  for  the  loss  occasioned  by  such  neg- 

9  Reece  v.  Righy,  4  B.  &  Aid.  202.  lect  or  want  of  care  and  skill.     Ad. 

9  Tenney  v.  Berger,  93  N.   Y.  524,  dison  on  Contracts  (6th  Ed.)  400. 

45  Am.  Rep.  263;  Evans  v.  Watrous,  Like  care  and  skill  are  also  required 

2  Port.  (Ala.)  205.  of  attorneys  when  employed  to  inves- 

*  Godefroy  v.  Jay,  5  Moo.  &P.  284.  tigate  titles  to  real  estate  to  ascertain 

5  De  Roufigny  v.  Peale,  3  Taunt.  whether  it  is  a  safe  or  sufScient  se- 
484.  Walsh  v.  Shumway,  65  111.  471.  curity  for  a  loan  of  money,  the  rule 

6  Mr.  Justice  Cmfford  in  Savings  being  that  if  the  attorney  is  negligent, 
Bank  v.  Ward,  100  U.  S.  195,  lays  or  fails  to  exercise  reasonable  care 
down  the  rules  as  follows:  "Attorneys  and  skill,  in  the  performance  of  the 
emploj'ed  by  the  purchasers  of  real  service,  and  a  loss  results  to  his  em. 
property  to  investigate  the  title  of  ployers  from  such  neglect  or  want  of 
the  grantor,  prior  to  the  purchase,  care  and  skill,  he  shall  be  responsible  to 
impliedly  contract  to  exercise  reason-  them  for  the  consequences  of  such  loss. 
able  care  and  skill  in  the  perform-  Addison  on  Torts  (Wood's  Ed.),  615." 
ance  of  the  undertaking,  and  if  they  See  also  Chase  v.  Heaney,  70  111. 
are  negligent,  or  fail  to  exercise  such  208;  Ritchey  v.  West,  23  111.  385; 
reasonable  care  and  skill  in  the  dis-  McNevins  v.  Lowe,  40  111.  210;  Clark 
charge  of  the  stipulated  service,  they  v.  Marshall,  35  Mo.  429,  Rankin  «. 
are  responsible    to    their   employers  Schaeffer,  4  Mo.  App.  108. 

696 


Chap.  I.]  ATT0ENET8    AT   LAW.  §  830. 

He  does  not,  unless  by  express  contract,  warrant  the  title  to  be 
good,  or  the  search  or  abstract  to  be  perfect,  but  he  does  agree 
that  it  is  subject  to  no  incumbrances  and  omits  no  material  fact 
which,  with  reasonable  and  ordinary  care  and  diligence  upon  his 
part,  might  have  been  discovered.'  He  is  not  liable  for  the  un- 
soundness of  an  opinion  upon  a  matter  upon  which  a  reasonable 
doubt  might  be  entertained,*  but,  upon  the  other  hand,  his  neg- 
lect to  observe  a  plain  and  ordinary  precaution,  as  to  look  for 
judgments  where  they  are  made  a  lien  upon  the  land,  would 
render  him  responsible  for  the  consequences.' 

§  830.  Same  Subject— Neglect  in  preparing  Contracts,  etc. 
The  same  rule  applies  to  the  attorney  who  undertakes  to  prepare 
deeds,  contracts,  or  other  conveyances  or  agreements,  for  parties 
who  employ  him  for  that  purpose.  The  attorney  is  not  bound 
to  make  the  contract  for  the  parties, — that  they  must  do  for  them- 
selves ;  but  he  does  undertake  that  he  possesses  reasonable  knowl- 
edge and  skill  in  such  matters,  and  will  use  due  and  reasonable 
care  and  diligence  in  so  framing  the  written  evidence  of  their 
agreement  as  to  give  it  binding  and  legal  force  and  effect.* 

The  extent  to  which  the  attorney  is  bound,  under  such  circum- 
stances, for  the  sufficiency  of  the  instruments  which  he  prepares, 
must  depend  upon  the  circumstances  of  each  case.  If  he  be,  for 
instance,  employed  as  a  mere  scribe  only,  to  commit  to  writing 
that  which  is  dictated  to  him  by  the  parties,  his  liability  would  be 
limited  to  the  performance  of  that  undertaking,  and  if  the  instru- 
ment failed  to  express  the  true  intention  of  the  parties,  the  attor- 
ney could  not  be  blamed.  But  if,  on  the  other  hand,  he  is  em- 
ployed to  prepare,  in  due  and  legal  form,  accordingto  his  knowl- 
edge and  judgment,  an  instrument  which  shall  effect  a  named 
result,  as,  for  instance,  the  conveyance  of  a  given  interest  or 
estate  in  lands,  his  liability  would,  within  the  limits  of  the  rule 

'  Rankin  •o.  Schaeffer,  4  Mo.  App.  a  well  settled  and  obvious  rule,  the 

108.  fact  that  he  consulted  an  eminent  at- 

«  As  where  being  in  doubt  whether  torney,  is  no  defense.     Goodman  «. 

an  apparent  incumbrance  was  valid,  Walker,   30  Ala,  482,    68  Am.  Dec. 

he  took  the  precaution  to  obtain  the  134. 

written  opinion  of  an  eminent  coun-  3  Oilman  c,  Hovey,  26  Mo.  880. 

eel,  who  declared  it  to  be    invalid.  <  Parker  v.  Rolls,  14  Cora.  B.  691 ; 

Watson  «.    Muirhead,    57  Penn.  St.  Taylor  ».    Gorman,    4  Ir.   Eq.    550; 

161.     But  where  an  attorney  ignores  Stott  v.  Harrison,  73  Ind.  17. 

697 


§  831.  THE    LAW    OF    AGENCY.  [Book  Y. 

Stated,  be  commensurate  with  that  undertaking.  If,  therefore, 
in  sucli  a  case  the  instrument  failed  to  accomplish  the  desired 
result,  from  the  attorney's  neglect  to  observe  the  necessary  and 
established  forms,  or  from  his  careless  misdescription  of  the  prop- 
erty, or  from  his  neglectful  failure  to  use  apt  and  appropriate 
language  to  express  the  real  agreement  of  the  parties,  he  would 
undoubtedly  be  liable  for  the  injury.*  It  is,  ordinarily,  no  part 
of  the  attorney's  duty  to  see  to  the  recording  of  the  conveyances 
which  he  prepares,  but  if  he  undertakes  that  duty  he  will  be  lia- 
ble for  an  injury  which  may  result,  either  from  his  neglect  to 
have  them  recorded  at  all,'  or  not  until  another  party  has  acquired 
priorities  by  record.' 

§  831.  Same  Subject— Neglect  of  Partners,  CJlerks,  etc.  Part- 
nerships of  attorneys  are  governed  by  the  same  rules,  in  respect  to 
the  liability  of  one  partner  for  the  acts  of  another,  which  apply 
to  trading  partnerships.  All  the  members  of  the  "firm  are  liable 
for  the  negligence,  misconduct  or  default  of  each  partner  in  the 
transaction  of  the  partnership  business,*  and  the  liability  con- 
tinues notwithstanding  a  subsequent  dissolution  of  the  partner- 
ship.* If,  therefore,  one  partner  receives,  professionally,  money 
belonging  to  a  client,  and  embezzles  it ;  •  or  if  any  injury  occurs 
from  the  negligence  or  lack  of  skill  or  knowledge  of  one  partner,' 
all  are  liable  for  the  loss. 

So  the  attorney  is  responsible  for  the  negligence  or  default 
of  his  clerk,  agent  or  servant,  in  the  same  manner  as  for  his  own 
personal  neglect  or  default,'  and  it  is  no  defense  that  the  clerk 
was  himself  a  competent  attorney.*  An  attorney  is  not,  how- 
ever, liable  for  the  neglect  of  a  substitute  or  associate  appointed 

1  As  where  he    prepares  a  simple  Simon,  4  La  Ann.  490;  Poole  v.  Qiot, 

contract  when  a  sealed  one  was  neces-  4  McCord  (S.  C.)  259. 

sary,  as  in  Parker  v.  Rolls,  supra;  or  «  Smyth  v.   Harvie,   31   111.    63;  83 

mi-sdescribes  the  premises,  as  in  Tay-  Am.  Dec.  202. 

lor  t.    Gorman,    supra;    or    omits  a  •  McFarland  v.   Crary,  8  Cow.  (N. 

requisite  formality  ia   the  acknowl-  Y.)2o3;  Livingston  v.  Cox,  6  Penn. 

edgment,    as  in    Stott  v.    Harrison,  St.  360. 

supra.  '  Warner    v.    Griswold,    8   Wend. 

«  Stott  v.  Harrison,  73  Ind.  17.  (N.Y.)  663;  Livingstone.  Cox,  supra. 

» Miller  v.  Wilson,    24    Penn.    St.  8  Floyd    v.    Nangle,    3    Atk.    563; 

114.  Birkbeck  v.  Stafford,  14  Ab.  (N.  Y.) 

<  Livingston   v.    Cox,  6  Penn.    St.  Pr.  285;  Walker  v.    Stevens,   79  111. 

860;     Wilkinson     «.     Griswold,     13  193. 

Sir.ed.  &  M.    (Miss.)  669;  Dwight  v.  •  Walker  n.  Stevens,  supra. 

698 


Cbap.  I.J  ATTOKNEYS   AT   LAW.  §  833. 

or  employed  by  liim  with  the  client's  conseut  or  authority  if  he 
used  due  care  in  his  selection;*  nor  would  he  be  liable  for  the 
neglect  or  default  of  a  mere  associate,  not  a  partner  or  clerk, 
employed  by  the  client.' 

§  831a.  Same  Subjects— Neglect  of  Subagent  in  ooUecting, 
This  question  has  been  discussed  in  an  earlier  chapter  to  which 
the  reader  is  referred.' 

§  832.  Liability  for  exceeding  Authority,  or  violating  Instruc- 
tions. An  attorney  at  law,  like  any  other  agent,  is  liable  to  his 
principal  for  losses  which  the  latter  may  sustain,  by  reason  of 
the  attorney's  exceeding;  his  authority  or  acting  in  violation  of 
express  instructions.  Thus,  if  an  attorney  appears  in  an  action 
without  authority,  and  the  assumed  client  incurs  costs  thereby  ;* 
or  if  the  attorney,  without  authority,  enters  a  satisfaction  of  a 
judgment  without  full  payment,  whereby  the  client  loses  the 
balance;*  or  if  he  neglects  to  bring  an  action  immediately,  as 
directed,  whereby  the  debtor  evades  the  jurisdiction,  or  becomes 
insolvent,  or  the  statute  of  limitations  operates  against  the  claim  ;• 
or  otherwise  occasions  loss  to  his  client  by  failing  to  observe  the 
limits  set  to  his  authority,  or  the  instructions  given  to  him,  he  is 
liable  for  the  loss. 

§  833.  Liability  for  Money  collected.  It  is  the  duty  of  an 
attorney  who  receives  money  for  his  client,  to  pay  it  to  him 
within  a  reasonable  time,  and,  at  all  events,  upon  proper 
demand.'  Without  express  authority  from  his  client,  the  attor- 
ney should  neither  use  the  money  himself,  nor  commingle  it 
with  his  own.  If  it  becomes  necessary  to  deposit  it,  he  should 
make  the  deposit  in  the  name  of  his  client,  for  if  he  deposits  it 
in  his  own  name,  though  in  a  separate  account,  it  has  been  held 
to  be  his  loss,  if  the  bank  fails  before  payment." 

If  the  attorney  neglects  or  refuses  to  pay  the  money  to  his 

1  See  ante,  §§  504.  575.  »  Cox  v.  Livingston,  3  Walts.  &  S. 

9  Godefroy  v.  Dal  ton,  6  Bing.  468;  103;  37    Am.    Dec.    486;    Gilbert  v. 

Watson  V.   Muirhead,   57  Penn.    St.  Williams,  8  Mass,   51,   5  Am.    Dec. 

247.  77. 

»  See  ante,  %  515  and  notes.  •  People  v.  Cole,  84  lU.  327. 

*  O'Hara  v.  Brophy,  24   How.  (K  '  Lillie  v.  Hoyt,  5  Hill.  (N.  Y.)  395, 

Y.)  Pr.   879;  Mudry  v.    Newman,  1  40  Am.  Dec.  300. 

Cromp.  Mees.  «&  Rose.  403;  Hubbart  »  Naltner  v.    Dolan,   108  Ind.  500, 

V.  Phillips,  13  Mees.&  W.  703.  58  Am.  Rep.  61. 

699 


§  834.  THE    LAW    OF    AGENCT.  [Book    V. 

client,  the  latter  may  maintain  an  action  against  the  attorney  for 
its  recovery.^  Ordinarily  such  action  will  not  lie  until  after  a  de- 
mand has  been  made  upon  the  attorney  for  the  money,  and  he  has 
neglected  or  refused  to  comply  with  it ;  *  but  where  the  attorney 
lias  retained  the  money  for  an  unreasonable  time  and  its  reten- 
tion is  unexplained,*  and  where  he  converts  it  to  his  own  use,*  it 
is  held  that  an  action  may  be  maintained  without  a  previous 
demand. 

Liability  for  Interest. — The  same  rules  govern  the  liability  of 
the  attorney  for  interest  upon  the  money  received  by  him. 
Ordinarily  he  will  not  be  chargeable  with  interest  until  a  demand 
has  been  made  for  the  money  ;  •  but  if  he  retains  it  unreasonably 
without  explanation,*  or  if  he  uses  it  himself,' or  if  he  wrong- 
fully converts  it  to  his  own  use,*  or  if,  upon  a  dispute  arising  as 
to  the  amount  due  the  client,  the  attorney  makes  the  client  a 
tender  which  proves,  upon  a  suit  brought,  to  be  insufficient,*  the 
client  may  recover  interest. 

§  834.  Attorney  liable  though  acting  gratuitously.  It  is  no 
defense  to  an  action  against  an  attorney  for  negligence  or  mis- 
conduct that  he  acted  gratuitously.  He  is  under  no  obligation  to 
80  act,  but  if  he  does  undertake  the  performance,  he  must  answer 
for  his  negligence  or  default  in  the  same  manner  as  though  he 
were  to  receive  a  reward.'* 

This  rule  is  in  accordance  with  the  well  settled  rule  applicable 
to  agents  generally  which  has  been  discussed  in  an  earlier  portion 
of  this  work. 

§  835.  The  Measure  of  Damages.  The  measure  of  damages, 
in  an  action  against  the  attorney,  is  the  actual  loss  sustained  as 

*  See  cases  cited  in  following  notes.  •  Chapman  v.  Burt,  supra;  Dwight 
s  Roberta  v.   Armstrong,    1   Bush       v.  Simon,  4  La  Ann.  490. 

(Ky.)  263,  89  Am.  Dec.  624;  Black  v.  '  Mansfield  v.  Wilkerson,  26  Iowa, 

Hersch.  18  Ind.    342,  81    Am.   Dec.  482. 

362;  Taylor  t>.  Bates,  5  Cow.  (N.  Y.)  »  Walpole  v.  Bishop,   31   Ind.  156; 

376  Chapman  v.  Burt,  77  111.  337.  Chapman  v.  Burt,  77  111.  337. 

But  see  Lillie  e.  Hoyt,  5   Hill  (N.  •  Ketcham  v.  Thorp,  91  111.  611. 

Y.)  395,  40  Am.  Dec.  360;  Schroeppel  '»  Eccles  c,    Stephenson,    3   Bibb. 

•.  Corning.  6  N.  Y.  117.  (Ky.)  517;  Stephens  ®.  White, 3  Wash. 

•Chapman*.  Burt,  77111.  337.  (Va.)  203;  Bradt  v.  Walton,  8  Johns. 

Chapman  c.  Burt,  »ii;wa.    See  also  (N.  Y.)  298;  O'Hara  v.    Brophy,  24 

Jordan  «.  Westerman,  62  Mich.  170.  How.   Pr.  (N.    Y.)  379;    Bourne    e. 

•  Wai|)ole  V.  Bishop,  31  Ind.  15C;  Diggles.  3  Chit.  311:  Whitehead  «. 
Johnson  v.  Sempie,  31  Iowa,  49.  Greetham,  2  Bing.  464. 

700 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  836. 

the  natural,  direct  and  proximate  result  of  his  negligence  or 
default.^  Compensation  to  the  client  is  the  result  aimed  at,  and 
it  is  to  be  compensation  for  something  which,  but  for  the  attor- 
ney's negligence,  he  would  have  enjoyed.  The  burden  of  prov- 
ing negligence,  and  that,  by  it,  he  has  sustained  loss,  is  upon  the 
client.'  If,  therefore,  though  the  attorney  may  have  been  negli- 
gent, the  client  has  suffered  no  injury,  there  is  no  cause  of 
action.*  And  in  an  action  against  the  attorney  for  negligence 
in  collecting,  the  amount  of  the  debt  is  not  necessarily  the  meas- 
ure of  damage.  In  order  to  make  it  so,  the  client  must  show 
that  it  was  a  valid  subsisting  debt,  that  the  debtor  was  solvent, 
and  that  the  attorney,  with  reasonable  diligence,  might  have  col- 
lected the  full  amount.*  And  it  is  only  for  the  proximate  results 
of  his  own  negligence,  that  the  attorney  is  liable.  Thus  after 
a  client  has  taken  a  claim  out  of  the  hands  of  one  attorney,  that 
attorney  is  not  responsible  for  a  loss  subsequently  resulting  from 
the  delay  or  negligence  of  the  client  or  of  another  attorney  to 
whom  the  claim  is  entrusted.' 

VI. 

LIABILITT   OF   ATTORNEY   TO   THIRD   PERSONS. 

§  836.  Not  liable  for  Breach  of  Duty  owing  to  Client  only. 
The  duties  of  the  attorney  which  arise  from  the  relation  of  attor- 
ney and  client,  are  due  from  the  attorney  to  his  client  only,  and 
not  to  third  persons.  The  latter  have  not  retained  or  employed 
the  attorney,  nor  has  he  rendered  any  service  for  them,  at  their 
request  or  in  their  behalf.  No  privity  of  contract  exists  between 
them  and  the  attorney.     For  such  injuries,  therefore,  as  third 

>  Pennington  v.  Yell,  11  Ark.  212.  (Ky.)  517;  Rootes  «.  Stone,  2  Leigh 

52  Am.  Dec.  262;  Mardis  t).  Shackle-  (Va.)  650. 

ford,  4  Ala.  505;  Dearborn  v.  Dear-  'Pennington  e.   Yell,   svpra.     See 

born,  15  Mass.  316;  Crocker  b.  Hutch-  all  cases  cited  in  preceding  note, 

inson,  2   D.  Chip.  (Vt.)   117;   Cox  v.  »  Harter  c.  Norris,  18  Ohio  St.  492. 

Sullivan,  7  Ga.  144,  50  Am.  Dec.  386;  *  Pennington  v.  Yell,  supra;  Cox  v. 

Nisbet  t).  Lawson,  1  Ga.  275;  Stevens  Sullivan,  «!<pra;   Eccles  v.    Steplien- 

V.   Walker,   55    111.  151;  Grayson  v.  son,   supra;  Ciooker  v.   Hutchinson, 

Wilkinson,  5  Smed.«&  M.  (Miss.)  268;  «M;)m;  Collier  ©.    Pulliam,    13    Lea 

Suydam  v.  Vance,  2  McLean  (U,  S.C.  (Tenn.)  114;  Bruce  v.  Baxter,?  Id.  477. 

C.)  99;  Eccles  v.  Stephenson,  3  Bibb.  «  Read  v.  Patterson,  11  Lea  (Tenn.) 

430;  See  Batty  v.  Fout,  54  Ind.  482. 

701 


§  837.  THE    LAW    OF    AGENCY.  [13ook    V. 

persons  may  sustain  by  reason  of  the  failure  or  neglect  of  the 
attorney  to  perform  a  duty  which  he  owed  to  his  client,  they 
have  no  right  of  action  against  the  attorney.^ 

Thus  one  who  purchases  real  estate  in  reliance  upon  an  opinion 
of  its  title  given  to  the  vendor  by  the  latter's  attorney,'  or  who 
purchases  a  mortgage  given  to  secure  a  loan  made  upon  the 
strength  of  a  search  made  by  the  attorney  of  the  original  mort- 
gagee,' cannot  maintain  an  action  against  the  attorney  for  dam- 
ages if  the  title  prove  defective  or  the  search  incomplete. 

Cases  in  which  the  attorney  has  been  guilty  of  fraud  or  collu- 
sion with  intent  to  injure  or  deceive  the  third  person,  stand  upon 
a  different  footing.  These  do  not' rest  upon  a  privity  of  contract, 
but  upon  intentional  wrong  doing,  and  the  victim  of  the  wrong 
has  undoubtedly  a  remedy  for  it  against  the  attorney  as  in 
other  cases/ 

§  837.  Liable  where  he  contracts  personally.  As  has  been 
seen,  it  is  the  presumption  that  an  agent  while  acting  for  his 
principal,  intends  to  bind  the  latter  and  not  himself  by  the  con- 
tracts which  he  makes;  but  it  is  always  competent  for  the  agent 
to  charge  himself  personally  if  he  so  elects.*  The  same  rule 
applies  to  attorneys  and  their  clients.  The  attorney  occupies  a 
position  of  greater  prominence  than  agents  generally,  but  his 
duty  requires,  and  his  position  gives  him,  less  authority  to  enter 
into  contracts  than  is  usually  conferred  upon  business  agents. 
He  acts  primarily  for  his  client  and  his  authorized  engagements 
should  be  held  binding  upon  the  client  rather  than  upon  him- 
self, in  the  absence  of  evidence  that  he  intended  to  bind  himself.' 

§  838.  Liability  for  Clerk's,  Ofllcer's  and  Witness's  Fees.  While 
recognizing  this  general  rule,  (and  in  pursuance  of  it,  as  is 
said  in  some  cases,  though  otliers  declare  it  an  exception,)  it  is 
held  that  the  attorney  is  personally  liable  to  clerks  of  courts  and  to 
sheriffs  for  services  performed  by  these  officers,  at  the  attorney's 

»  Savings  Bank  o.  Ward,  100  U.  8.  Hughes,  supra;  Houseman  v.  Girard, 

195;  Dundee  Mortg.  &  Trust  Co.  v.  &c.  Ass'n,  supra. 

Hughes,   20  Fed.   Rep.    39;   Fish  v.  *  Savings  Bank  «.  Ward,  ««pra. 

Kelly,  17   C.    B.  (N.  S.)  194;  House-  »  See  ante  %  558. 

man  v.  Girard    &c.    Ass'n,  81  Penn.  »  Preston     v.     Preston,     1    Doug, 

St.  256.  (Mich.)  292;  Wires  v.  Briggs,  6  Vt. 

2  Savings  Bank  v.  Ward,  supra.  101,  2G  Am.  Dec.  284. 

»  Dundee  Mortg.    &  Trust  Co.  «. 

702 


Chap.  I.] 


ATTOKNEYS    AT    LAW. 


§  838. 


request,  in  issuing,  filing  and  serving  writs  and  other  papers  in 
the  cause.* 


'  Heath  «.  Bates,  49  Conn.  343;  44 
Am.  Rep.  234;  Tilton  v.  Wright,  74 
Me.  214,  43  Am.  Rep.  578;  Adams  v. 
Hopkins,  5  Johns.  (N.  Y.)  253;  Ous- 
terhout  v  Day,  9  Id.  113;  Trustees  of 
Watertown  «.  Cowen,  5  Paige  (N.Y.) 
510;  Camp  v.  Garr,  6  Wend.  (N.Y.) 
535;  Campbell  v.  Cothran,  5(5  N.  Y. 
279;  Towle  v.  Hatch,  43  N.  H. 
270;  Tarbell  v.  Dickinson,  3  Cush. 
Olass.)  345. 

In  Heath  v.  Bates,  supra.  Park, 
C.  J.  says:  "  In  most  cases  of  agency 
the  principal  is  what  the  name  im- 
ports— the  leading  person  in  the  trans- 
action. The  agent  is,  as  the  term 
implies,  a  mere  subordinate,  im- 
portant only  as  the  representative 
of  the  principal ;  often  representing 
only  one  principal.  An  attorney  at 
law,  on  the  other  hand,  occupies  a 
position  of  recognized  importance  in 
itself,  not  infrequently  of  great  prom- 
inence before  the  public,  in  which  he 
often  has  a  large  number  of  clients, 
his  relations  to  whom  are  full  of  de- 
tail, and  who  are  little  noticed  by  the 
public.  In  these  circumstances,  if 
every  officer  who  serves  a  writ  at  the 
attorney's  request,  if  every  clerk  of 
court  who  enters  a  case  for  him  upon 
the  docket,  is  to  look  only  to  his 
clients  as  their  debtors,  an  inconven- 
ience will  be  wrought  that  has  no 
commensurate  good  to  counterbal- 
ance it.  It  is  true  that  an  officer  can 
refuse  to  serve  a  writ  unless  his  fees 
are  paid  or  secured,  but  this  right  is 
practically  of  little  advantage  to  him. 
A  writ  is  sent  him  by  mail  by  an  at- 
torney of  some  other  town  or  county. 
It  requires  immediate  service.  The 
officer  desires  to  be  prompt  and  faith- 
ful. It  is  putting  upon  him  an  un- 
necessary burden  to  require  him  to 
take  the  risk  of  losing  his   fees,  or  to 


wait  till  he  can  hear  from  the  plain- 
tiff or  his  attorney  at  the  risk  of 
losing  all  opportunity  to  make  service 
of  the  writ.  It  is  perfectly  easy  for 
the  attorney,  if  he  does  not  wish  to 
be  personally  responsible,  so  to  in- 
form the  officer  wlien  he  gives  Lim 
the  writ.  It  is  to  be  borne  in  mind 
that  the  attorney  knows  the  plainlitf, 
while  the  officer  may  know  nothing 
of  him.  It  is  generally  the  case  that 
an  attorney  has  a  running  account 
with  certain  officers  who  serve  a  large 
number  of  writs  for  him,  and  who 
would  be  put  to  great  inconvenience 
if  compelled  to  make  their  charges  in 
each  case  to  the  plaintiff,  especially 
when  they  have  no  knowledge  that 
the  attorney  has  received  actual  au- 
thority to  bring  the  suit.  The  attor- 
ney has  already  his  account  with  his 
client,  knows  what  the  fact  is  as  to 
his  authority  to  bring  the  suit,  and 
could,  without  inconvenience,  have 
required  a  prepayment  of  the  expen- 
ses of  instituting  the  suit,  and  ought 
to  have  done  so.  In  every  view  of 
the  case,  the  rule  seems  a  reasonable 
one,  and  the  only  reasonable  one, 
that  an  attorney  placing  a  writ  in  an 
officer's  liands  for  service  is  to  be  re- 
garded as  personally  requesting  the 
service  and  as  personally  liable  for  it, 
unless  he  expressly  informs  him  that 
he  will  not  be  personally  liable, or  there 
are  circumstances  which  make  it 
clear  that  that  was  the  understanding 
of  the  parties. 

This  is  really  no  departure  from 
the  general  law  of  agency.  An  agent 
can  always  bind  himself  personally, 
where  such  is  his  intention.  Here  it 
is  merely  held  to  be  a  fair  inference 
from  the  act  of  the  attorney  in  plac- 
ing the  writ  in  an  officer's  hands  and 
giving    no    notice    to   the   contrary, 


703 


§  839.  THE    LAW    OF    AGENCY.  [JBook  V. 

This  liability  is  based,  in  some  cases,  upon  the  ground  that  it 
is  a  fair  inference  from  his  so  doing,  without  giving  notice  to  the 
contrary,  that  he  intends  to  be  personally  liable  ;  while  in  others, 
it  is  sustained  only  upon  the  ground  of  usage  or  convenience. 
In  a  few  States  the  rule  is  denied  altogether.^ 

But  the  attorney  is  not  presumably  liable  for  witness  fees,'  or 
the  fees  of  a  referee,'  or  of  a  stenographer  employed  in  the  case.* 

§  839.  Liability  to  third  Person  in  Tort.  For  such  wrongs  and 
injuries  as  an  attorney  may  commit  in  his  private  and  individual 
capacity,  he  is,  of  course,  liable  like  any  other  person.  The  fact 
that  a  wrong-doer  happens  to  be,. by  profession,  an  attorney  at 
law,  furnishes  no  more  justification  than  as  if  he  were  engaged 
in  any  other  occupation. 

But  an  important  question  arises  how  far  an  attorney  is  liable 
to  third  persons,  for  injuries  which  they  may  sustain  from  the  act 
of  the  attorney,  committed  while  he  was  acting  either  really  or 
ostensibly  for  his  client  and  in  his  cause. 

This  question  may  present  itself  under  two  states  of  fact : — 1. 
"Where  the  attorney  is  acting  in  good  faith  for  the  benefit  of  his 
client,  and  2.  Where  the  attorney,  though  acting  ostensibly  for 
his  client,  is  really  instigated  by  private  malice  against  the  other 
party,  or  becomes  a  party  to  his  client's  malice. 

Each  of  these  questions,  also,  subdivides  itself  into  two 
branches :  a.  How  far  the  attorney  is  liable  for  the  institution, 
conduct  and  result  of  the  suit ;  and  h.  How  far  he  is  liable  for 
process  which  he  causes  to  be  served. 

1.  a.  An  attorney  at  law,  who  acts  in  good  faith  and  is 
prompted  only  by  professional  duty  and  fidelity  to  his  client,  is 
not  liable  to  the  other  party  for  injuries  which  the  latter  may  sus- 
tain from  the  fact  that  the  action  was  begun  or  prosecuted,  by 
the  attorney's  client,  either  maliciously  or  without  probable  cause. 
The  wrong  intentions  of  the  client  are  not  to  be  imputed  to  his 

that  he  intends  to  be  personally  liable  Dec.  284;  Preston  v.  Preston,  1  Do\ig. 

for  his  fees.     And  this  inference  un-  (Mich  )  292. 

doubtedly  accords    with    the    actual  «  Robins  v.  Bridge,  3  Mees.&  Wels. 

fact  in  the  great  majority  of    cases.  114. 

Indeed  the  exceptions  are   probably  » Judson  v.  Gray,  11  K  Y.  408. 

BO  few  as  hardly  to  be  entitled  to  con-  *  Bonynge  v.  Field,  44  N.  Y.  Super. 

Bideration."  Ot.  581;  B.  c.  81  N.  Y.  159, 
«  Wires  v.  Briggs,  5  Vt.  101 ,  26  Am. 

704 


Chap,  l.j  A'lTORNEYS    AT    LAW.  §  839. 

attorney  who  was  ignorant  of  them,  and  who,  himself,  had  no 
BDch  intentions.  This  rule  is  absolutely  imperative  for  the  attor- 
ney's protection.  He  can  rely  in  the  first  instance  only  upon  the 
advice  and  instructions  of  his  client,  and  it  would  impose  upon 
the  attorney  a  perilous  responsibility  if  he  could  justify  his  par- 
ticipation in  the  suit  only  by  its  result.  As  is  said  by  a  learned 
judge :  "  When  the  client  will  assume  to  dictate  a  prosecution 
upon  his  own  responsibility,  the  attorney  may  well  be  justified  in 
representing  him  so  long  as  he  believes  his  client  to  be  asserting 
what  he  supposes  are  his  rights,  and  is  not  making  use  of  him  to 
satisfy  his  malice."  * 

2.  a.  "  But,"  proceeds  the  same  judge,  "  when  an  attorney  sub- 
mits to  be  made  the  instrument  of  prosecuting  and  imprisoning 
a  party  against  whom  he  knows  his  client  has  no  just  claim,  or 
cause  of  arrest,  and  that  the  plaintiff  is  actuated  by  illegal  or  mali- 
cious motives,  he  is  morally  and  legally  just  as  much  liable  as  if 
he  were  prompted  by  his  own  malice  against  the  injured  party. 
If  he  will  knowingly  sell  himself  to  work  out  the  malicious  pur- 
poses of  another,  he  is  a  partaker  of  that  malice  as  much  as  if  it 
originated  in  his  own  bosom."  * 

In  order,  however,  to  render  the  attorney  liable  for  a  malicious 
prosecution  by  his  client,  it  must  not  only  appear  that  the  attor- 
ney knew  that  the  prosecution  was  malicious,  but  that  he  also 
knew  that  it  was  without  cause.  It  is  not  enough  that  he  might, 
with  reasonable  diligence,  have  ascertained  that  there  was  no  prob- 
able cause  for  the  prosecution.  The  attorney  has  a  right,  in 
good  faith,  to  advise  and  act  upon  the  facts  which  he  gets  from 
his  client,  and  it  is  not  his  duty  to  go  elsewhere  for  information.' 

An  attorney  who  while  acting  ostensibly  for  his  client,  but 
actuated  by  his  own  personal  malice,  commences  or  carries  on  a 
malicious  prosecution  in  order  to  gratify  some  private  purpose  of 
his  own  is  undoubtedly  liable  to  the  party  injured  for  the  wrong 
inflicted.*  In  such  a  case  there  is  neither  good  faith  nor  advice 
of  client  to  justify  the  action. 

*  Burnap  v.  Marsh,  13111.  535;  Peck  «  In  Burnap  ».  Marsh,  supra. 

V.  Chouteau,  91  Mo.  140,  60  Am.  Rep.  •  Peck  v.  Chouteau,  supra;  Burnap 

236;  Stockley  v.  Hornidge,  8  Car.  &  v.  Marsh,  supra;  Hunt  v.  Printup,  28 

P.  16,  34  Eng.   C.  L.   276;  Lynch  v.  Ga.  297. 

Commonwealth,  16  S.  &.  R.   (Fenn.)  *  Stockley*.  Hornidge,  8upra;B\xr- 

368,  16  Am.  Dec.  582.  nap  v.  Marsh,  supra. 

45  705 


§  839.  THE   LAW    OF   AGENCY.  [Book  V.  . 

1.  b.  All  persons  who  direct,  cause  or  participate  in  a  trespass 
upon  another  party  are,  in  accordance  with  well  settled  rules,  lia- 
ble to  that  party  for  the  injury  inflicted.  An  attorney  who 
delivers  to  an  officer  a  writ  for  service  impliedly,  if  not  expressly, 
directs  the  officer  to  proceed  to  serve  the  process  in  accordance 
with  its  command.  If,  therefore  the  writ  be  illegal  or  void,  so 
as  to  furnish  the  officer  no  protection  for  his  proceedings  under 
it,  he  is,  of  course,  a  trespasser,  and  the  attorney  is  liable  with 
him  to  the  person  injured  as  having  directed  the  commission  of 
the  trespass.^  The  party  for  whom  both  the  attorney  and  the 
officer  were  acting  is  also  liable,  as  the  principal  in  the  transac- 
tion,* The  liability  of  the  parties',  in  this  event,  does  not  depend 
upon  their  motive.  Although  each  may  have  acted  in  entire 
good  faith, — the  client  in  the  prosecution  of  his  supposed  rights, 
the  attorney  in  rendering  professional  assistance  to  the  client,  and 
the  officer  in  undertaking  to  execute  the  writ, — yet  mere  good 
faith  will  not  excuse  the  trespass.'  The  attorney  would  not  be 
liable  to  the  person  injured,  if  the  client  delivered  the  writ  to 
the  officer  and  directed  its  service,  or  if  the  attorney  merely  com- 
municated to  the  officer  the  instructions  of  his  client.* 

But  the  attorney  by  the  delivery  of  the  writ  directs  the  officer 
to  proceed  according  to  its  command  only,  and  if  the  officer 
exceeds  its  command,  or  does  anything  which  the  writ,  if  legal, 
would  not  justify,— as  if  he  seizes  property  exempt  from  execu- 
tion, or  levies  upon  goods  of  another  than  the  defendant, — the 
attorney  would  not  be  liable."  Even  in  this  case,  however,  if 
the  attorney  directs  or  advises  the  act  which  constitutes  the  tres- 
pass, or  if  he  participates  in  the  act,  either  in  person  or  by  his  own 
clerk,  servant  or  agent,  the  attorney  is  liable  with  the  officer  to 
the  person  trespassed  upon  for  the  injury  inflicted.*     The  client 

jBurnape.  Marsh,  mpra;  Cooke.  s  Ford  d.  Williams,  supra;  Cook  v. 

Hopper,  23  Mich.  511.     But  see  Ross  Hopper,  supra;   Seatoa  v.   Cordray, 

e.  Griffin,  53  Mich.  5.  Wright  (Ohio)  102;  Averill  v.   Wil- 

i  Fosler  o.  Wiley,  27  Mich.  244,  16  liams,  1  Denio  (N.  Y.)  501;  Adams  v. 
Am.   Rep.   185;    Newberry®.   Lee,  3  Freeman,  9  Johns.  (N.  Y.)  118;  Van- 
Hill  (N.  Y.)535;  Barker  v.   Braham,  derbilt   t.   Richmond  Turnpike  Co., 
8  Wil3.  368;  Bates  v.  Pilling,  6  B.  &  2  N.  Y.  479,  51  Am.  Dec.  315. 
Q  gg  «  Hardy  v.  Keeler.  oG  111.  153,  where 

»  See  Cooley  on  Torts.  Chap.  23.  the  attorney  sent  his  clerk;  Cook  v. 

<Cook  V.  Hipper.   23   Mich.    511;  Hopper,    23   Mich.    511,    where    the 

Ford  D.  Williams.   13  N.   Y.  577,  67  attorney  refused  to  consent  that  prop- 
Am.  Dec.  83.                                         "^"'6 


Chap.  I.]  ATTORNEYS    AT    LAW.  §  840. 

would  not,  however,  be  liable  in  this  case  unless  he  advised, 
directed,  participated  in  or  ratified  the  act.*  In  this  case,  too,  the 
trespassers  are  none  the  less  liable  because  they  acted  in  good 
faith.* 

2.  h.  A  fortiori  will  the  attorney  be  liable  where  he  causes, 
directs  or  participates  in,  the  service  of  process,  whether  it  be 
valid  or  invalid,  without  the  instruction  or  knowledge  of  his 
client,  and  without  any  reasonable  or  probable  cause  for  so  doing, 
but  simply  to  gratify  some  malicious  purpose  of  his  own.* 

He  would  also  be  liable  with  his  client  where,  knowing  that 
the  client  was  acting  maliciously  and  without  probable  cause,  he 
co-operated  with  or  assisted  him  in  the  issuing  or  serving  of  pro- 
cess.* 

YII. 

LIABILITY   OY   CLIENT  TO    ATTORNEY. 

1.     Attorney's  Right  to  Reirnbursement  and  Indemnity. 

§  840.  Attorney  entitled  to  Reimbursement  and  Indemnity. 
Like  other  agents,  the  attorney  is  entitled  to  be  reimbursed  by 
his  client  for  costs,  charges  and  expenses  which  the  attorney  has 
fairly  and  in  good  faith  incurred  in  the  prosecution  of  his  client's 
business,  and  which  were  not  rendered  necessary  by  the  attorney's 
own  negligence  or  default,  or  which  were  not  incurred  in  violation 
of  the  express  instructions  of  his  client.*  So  if  the  attorney  for 
his  client's  benefit  and  within  the  scope  of  his  authority,  has 
incurred  a  contingent  liability,  as  by  indemnifying  an  officer  from 
the  consequences  of  levying  the  client's  process,  he  is  entitled  to 
be  idemnified  by  his  client* 

«rty  unlawfully  seized  should  be  re-  Stockley  v.  Hornidge,  8  Car.  &  P.  16, 

leased.  34  Eag.  C.  L.  276;  Wood  v.  Weir,  5 

>  Welsh  V.  Cochran,  63  K  Y.  181,  B  Mon.  (Ky.)544;  Warfield  v.  Canip- 

20  Am.  Rep,  519;  Averill®.  Williams,  bell,  33  Ala.  849;  Kirksey  ».  Jones,  7 

4  Denio  (N.  Y.)  295,   47   Am.    Dec.  Ala.  622. 

253;  Vanderbilt  v.  Richmond  Turn-  <  Burnap  v.  Marsh,  supra;  Peck  v. 

pike  Co.,  2  N.  Y.  479,  51  Am.  Dec.  Chouteau,  91  Mo.  140,  60  Am.  Rep. 

315;   Freeman  v.   Rosher,    18   Q.    B.  236. 

780;   Kirksey  v.   Jones,   7  Ala.  622;  «  Clark  ».    Randall,  9  Wis.   135,  76 

Pollock  V.  Gantt,  09  Ala.  373.  Am.  Dec.  252;  Champin  v.  King,  6 

s  See  note  3  p.  706,  ante.  Jur.  35. 

'Burnap    v.    Marsh,     13  111.    535;  •  Clark  c.  Randall,  supra. 

707 


§  8il.  THE   LAW    OF    AQENOT.  [Book  V 

2.     Attorney's  Right  to  Compensation. 

§  841.  Attorney  entitled  to  Compensation.  An  attorney  at 
law  is  prima  facie  entitled  to  compensation  for  the  services 
which  he  renders  for  his  client.  He  may  specially  agree  that  he 
will  serve  gratuitously,  or  that  he  will  make  no  charge  unless  suc- 
cessful, or  unless  his  services  are  satisfactory  to  his  client ;  and 
such  agreements,  when  fairly  made,  will  be  enforced.  But  when 
an  attorney  is  employed  to  render  services  in  the  course  of  his 
profession,  the  presumption  is  that  the  party  who  employs  him 
expected  to  pay  him,^  and  if  such  is  not  the  case  the  burden  of 
proving  it  is  upon  the  client.* 

The  fact  that  the  attorney  was  mayor  of  the  city  for  which  the 
services  were  rendered  ; '  or  was  a  stockholder  in  the  corporation 
which  employed  him  ;*  or  was  also  employed  to  negotiate  loans 
for  the  insurance  company  for  which  he  rendered  other  pro- 
fessional services ;  •  will  not  defeat  his  right  to  compensation. 

§  842.  Attorney  may  sue  for  Compensation.  Attorneys  at 
law  of  all  grades  in  the  United  States,  though  a  different  rule  at 
one  time  prevailed,  may  maintain  an  action  at  law  to  recover  their 
compensation.* 

a.  Where  there  was  a  special  Contract. 
8  843.  Parties  may  agree  upon  Amount  of  Compensation. 
It  is  entirely  competent  for  the  parties  to  agree,  at  the  time  of 
the  employment  of  the  attorney,  not  only  upon  the  amount  of 
his  compensation,  but  also  as  to  the  time,  manner  and  medium  of 
its  payment,  and  such  an  agreement  is  highly  desirable,  both  to 
the  client  and  the  attorney,  as  obviating  many  of  the  unpleasant 
and  unseemly  controversies  which  sometimes  occur  when  the 
amount  is  left  unfixed  until  the  termination  of  the  employment. 
Where  such  a  contract  is  fairly  made  it  is  conclusive  upon  both 

1  Hallett  v.  Oakes,  1  Cush.  (Mass.)  » Insurance  Co.  «.  Buchanan,  100 
296;  Webb®.  Browning,  14  Mo.  354;      Ind.  63. 

Smith  V.  Davis,  45  N.   U.  566;  Vilas  «  Stanton  v.  Embrey,  93  U.  S.  548; 

».  Downer,  21  Vt.  419.  Wylie  v.  Coxe,  15  How.  (U.  S.)  415; 

2  Brady  v.  Mayor,  1  Sandf.  (N.  Y.)  Smith  v.  Davis,  45  N.  H.  5G6;  Nichols 
569.  V.    Scott,    12    Yt.    47;    Eggleston  v. 

»  Niles  V.  Muzzy,  33  Mich.   61,  20  Boardman.    37   Mich.    14;  Miller  «. 

Am.  Rep.  670.  Beal,  26  Ind.  234;  Webb  v.   Brown- 

♦  Reynolds  v.  McMillan,  63  111.  46.  ing,   14  Mo.    354;  Foster  v.   Jack.  4 

See  Ward  v.  Craig,  87  N.  Y.  550.  Watts.  (Penn.)  334. 

708 


Chap.  I.]  ATT0BNEY8    AT   LAW.  §  845. 

parties,  unless  its  provisions  have  been  waived  ; '  and  where  law- 
ful conditions  have  been  imposed,  it  is  incumbent  upon  the  attor- 
ney to  show,  either  that  he  had  fully  performed  the  contract 
according  to  its  terms,*  or  that  such  performance  has  been  pre- 
vented by  the  client.' 

§  844.  Contracts  for  oontingent  Compensation.  A  contract 
by  which  the  attorney  agrees  to  render  professional  services  upon 
the  condition  that,  if  unsuccessful,  he  shall  receive  no,  or  little, 
compensation ;  while  if  successful,  he  shall  receive  a  large,  or 
increased,  compensation,  is  valid.*  And  it  is  none  the  less  valid 
that  the  attorney  is  to  receive  as  his  compensation  a  portion  of 
the  money  or  thing  recovered.'  Whatever  may  be  thought  of 
the  moral  or  ethical  effects  of  such  contracts,  it  is  quite  generally 
held  in  modern  times,  that  they  are  not  invalid.  Indeed  it  is 
urged,  with  much  plausibility,  that  such  contracts,  under  the 
peculiar  and  unequal  conditions  of  many  of  the  parties  to  modern 
litigation,  are  absolutely  indispensable  to  the  maintenance  and 
administration  of  justice.  Contracts  of  this  nature,  however,  to 
be  enforced,  must  appear  not  to  be  excessive  or  extortionate,  and 
to  have  been  fairly  made,  without  undue  advantage  being  taken 
of  the  ignorance  or  necessities  of  the  client.* 

§  845.     What  Contracts  champertous.      In  many  cases  it  has 

*  Stanton  v.  Embrey,  93  U,  S.  548;  Am.  Rep.  99;  Allard  v.  Lamirande, 

Planters' Bank  u  Hornberger,  4  Cold.  27  Wis.   502;    Kusterer  v.    City    of 

(Tenn.)    531;    Bright    v.    Taylor,    4  Beaver  Dam,  56   Wis.  471,   43  Am 

Sneed.  (Tenn.)  159;  Tapley  ®.  Coffin,  725;  Perry  ».  Dicken,  105  Penn.  St 

12  Gray  (Mass.)  420;  Yates  v.  Robert-  83,  51  Am.  Rep.  181;  Miles  v.  O'Hara, 

son,  80  Va.  475;  Badger «.  Gallagher,  1    S.  &.    R.  (Penn.)  32;    Boulden  v. 

113  111.  662;  Ripley  v.  Bull,  19  Conn.  Hebel,  17  Id.  312;  Strohecker  v.  Hoflf 

56;    Walker  v.   Clay,   21   Ala.    797;  man,  19  Penn.  St.  223,  227;  Dicker 

Allard  v.   Lamirande,   29   Wis.  502;  son  v.   Pyle,  4  Phila.   259;    Chester 

Hitchings  «.  VanBrunt,  38  N.Y.  335;  County  ».  Barber,  97  Penn.  St.  4G3 

Broadman  v.  Brown,  25  Iowa,  489.  Stewart  v.  Houston,  «&c.  Ry  Co.,  63 

»  Moses  V.  Bagley.  55  Ga.  2S3.  Tex.  246. 

'  Myers  t).   Crockett,    14  Tex.  257;  6  Duke  v.    Harper,   supra;    contra 

Kersey  v.  Garton,  77  Mo.   645;  Bates  Blaisdell  v.  Ahem,  144  Mass.  3'j3,  59 

V.  Desenberg,  47  Mich.  643.  Am.  Rep.  99;  contra,  when  for  part 

«  Wylie  V.  Coxe,  15  How.  (U.  S.)  of  land  recovered ;  Stanton  c.  Haokin. 

415;  Wright  v.  Tebbitts,  91  U.  S.  253;  1  McAr.  (D.  C.)  558,   29  Am.  Rep. 

Stanton  v.  Embrey,  93  U.  S.  548;  Tay-  612. 

lore.  Bemiss,  110  U.   S.   43;  Duke  v.  «  See  Taylor  v.  Bemiss,  110  U.  S. 

Harper,  66  Mo.  51,  27  Am.  Rep.  314;  42;  Wright  v.  Tebbetts,  91  U.  S.  253. 
Blaisdell  v.  Ahem,  144  Mass.  393,  59 

709 


§8i5. 


THE   LAW    OF    AGENOT. 


[Book  v., 


been  considered  that  the  mere  agreement  that  the  attorney  should 
receive  part  of  the  money  or  thing  recovered,  rendered  the  con- 
tract champertous  and  void  ;*  but  it  is  now  generally  held  that 
this  alone  is  not  enough,  and  that,  to  vitiate  the  contract  on  this 
account,  it  is  essential  that  it  should  also  appear  that  the  attorney 
was  to  carry  on  the  suit  at  his  own  expense ;  "  although  in  some 
cases,  however,  it  has  been  said  that  the  attorney  who  furnished 
his  services  upon  the  contingency  of  success  was,  in  a  measure, 
sustaining  the  suit  at  his  own  expense.  •     In  a  recent  case  in 


»  See  Thurston  «.  Percival,  1  Pick. 
(Mass.)  415;  Browne.  Beauchamp,  5 
T.  B.  Mon.  (Ky.)  413,  417;  Lathrop 
9.  Amherst  Bank,  9  Mete.  (Mass.) 
489;  Scobey  v.  Ross,  13  Ind.  117; 
Rust  V.  Larue,  4  Litt.  (Ky.)  419; 
Davis  V.  Sharron,  15  B.  Mon.  (Ky.) 
64;  Backus  v.   Byron,  4  Mich.    535. 

In  Ware's  Adm.  v.  Russell,  70  Ala. 
174,  45  Am.  Rep,  82,  Brickkll,  C. 
J.,  said:  "Champerty,  with  us,  is 
the  unlawful  maintenance  of  a  suit  in 
consideration  of  some  bargain  to  have 
a  part  of  the  thing  in  dispute,  or 
some  profit  out  of  it;  and  covers  all 
transactions  and  contracts,  whether 
by  counsel  or  others,  to  have  the 
whole  or  part  of  the  thing  or  dam- 
ages recovered;  Foe  v.  Davis,  29  Ala. 
683;  Hollo  way  «.  Lowe,  7  Port.  (Ala.) 
488." 

»Duke  e.  Harper,  66  Mo.  51,  27 
Am.  Rep.  314;  Martin  e.  Clarke,  8  R. 
I.  389,  5  Am.  Rep.  586;  Moses  v. 
Bagley,  55  Qa.  283 ;  Arden  v.  Patter- 
son, 5  Johns.  (N.  Y.)  Ch.  44;  Allard 
V.  Lamirande,  29  Wis.  502;  Bayards. 
McLane,  3  Harr.  (Del.)  212;  Coleraan 
V.  Billings,  89  111.  183;  Orr  v.  Tanner, 
12  R.  I.  94. 

3  In  Backus  v.  Byron,  4  Mich.  535, 
aa  agreement  by  which  the  client 
was  to  pay  the  expenses  and  the  at- 
torney was  to  have  part  of  the  recov- 
ery was  held  void.  Said  Grsen.  J. . 
"  That  champerty  was  regarded  as 
malum  in  se,   and    an  offense  of   a 


high  grade  at  the  common  law,  which 
rendered  void  all  contracts  tainted 
with  it,  cannot  be  questioned.  Bar- 
ratry and  maintenance  (of  which  lat- 
ter champerty  was  regarded  as  the 
most  odious  species)  were  offenses  of 
a  kindred  character,  tending  to  strife, 
oppression  and  injustice,  and  the  per- 
petrators thereof  were  visited  with 
grievous  punishments.  Hawkins  P. 
C,  ch.  84;  Coke's  Inst.  368,  b;  4  Bl. 
Com.,  134;  2  Chitty's  C.  L..  234,  note 
a;  4K.  Com.,  6th  ed.,  449,  note  a. 
Our  attention  will  first  be  directed  to 
the  inquiry  what  constitutes  cham- 
perty at  the  common  law.  Hawkins 
defines  it  to  be:  '  The  unlawful  main- 
tenance of  a  suit  in  consideration  of 
an  agreement  to  have  part  of  the 
thing  in  dispute,  or  some  profit  out  of 
it.'  Hawkins  P.  C.  ch.  84  §  1. 
Lord  Coke  says,  it  is  '  to  maintain  to 
have  part  of  the  land,  or  part  of  the 
debt,  or  other  thing  in  plea  or  suit.' 
Co.  Lit.,  368,  b.  Chitty  defines  it  to 
be  'a  bargain  to  divide  the  land 
{eampum  partire)  or  other  subject  in 
dispute,  on  condition  of  his  carrying 
it  on  at  his  own  expense,'  and  this  is 
the  definition  given  by  Sir  Wm. 
Blackstone:  2  Chitty's  Cr.  L.,  234, 
note  a;  4  Bl.  Com..  135.  Sir  Wm, 
Grant,  in  15  Vesey,  lo9.  sass: 
'  Champerty  is  the  unlawful  main- 
tenance of  a  suit  in  consideration  of 
a  bargain  for  a  part  of  the  thing,  or 
some  profit  out  of  it,'  and  this  defini- 


710 


Chap.  I.] 


ATTORNEYS   AT   LAW. 


§845. 


Massachusetts,  the  contract  is  said  to  be  cliampertous  where  the 
attorney  agrees  to  look  solely  to  the  fund  or  thing  recovered, 
with  no  personal  claim  against  the  client.* 


tlon  is  quoted  by  Tindall,  Ch.  J., 
in  Stanley  v.  Jones,  7  Bing.,  369. 

Mr.  Bouvier,  in  his  institutes  of 
American  law,  vol.  4,  p.  236,  says: 
'By  champerty  is  meant  a  bargain 
with  a  plaintiff  or  defendant,  eampum 
partire,  to  divide  the  land  or  the 
thing  sued  for  between  them  if  they 
prevail  at  law,  the  champertor  agree- 
ing to  carry  on  the  suit  at  his  own 
expense.  It  differs  from  maintenance 
in  this  that  in  the  latter  the  person 
assisting  the  suitor  receives  no  part  of 
the  benefit,  while  in  the  former  he 
receives  one-half,  or  other  proportion 
of  the  thing  sued  for,'  and  Mr.  Tay- 
lor, in  his  law  glossary,  defines  it  to 
be  the  purchasing  of  a  right,  or  pre- 
tended right,  under  a  condition  that 
part,  when  obtained  by  suit,  shall 
belong  to  the  purchaser. 

Although  there  is  considerable  di- 
versity in  the  language  used  by  these 
and  other  authors  in  describing  this 
offense,  yet  I  think  that,  upon  exam- 
ination, it  will  appear  that  they  all 
agree  in  substance.  When  it  is  con- 
sidered that  champerty  is  a  species  of 
maintenance,  it  is  clear  that  all  these 
defluitions  import  that  the  party  bar- 
gaining for  an  interest  in  the  thing  in 
dispute,  undertakes  to  aid  in  the 
prosecution  of  the  suit  for  its  recov- 
ery, and  whether  such  aid  is  furnished 
in  money  by  a  layman,  who  pays  the 
expenses  of  the  suit,  or  by  an  attor- 
ney or  solicitor,  in  services  rendered 
in  its  prosecution,  it  is  the  same,  and 
each  alike  in  effect  and  in  contem- 
plation of  law,  is  a  maintainer  of  the 
suit,  and  prosecutes  it  in  whole  or  in 
part,  at  his  own  expense.  The  con- 
sideration paid  in  the  latter  case 
would  be  equally  as  valuable  as  in 
the  former,   and  the  inducement  to 

711 


prosecute  a  doubtful  or  unconscion- 
able claim  would  be  the  same,  and 
the  evil,  if  any,  the  same.  It  is 
equally  champerty  whether  the  con- 
tract be  for  one  half,  one-quarter, 
or  one-eighth  of  the  thing  in  dispute: 
and  it  would  be  strange,  indeed,  if 
the  validity  or  invalidity  of  the  con- 
tract of  this  character  were  made  to 
depend  upon  the  amount  of  the  con- 
sideration to  be  paid,  or,  in  otlier 
words,  upon  the  payment  of  a  part 
or  the  whole  of  the  expenses  of  the 
suit." 

*  Biaisdell  v.  Ahem,  144  Mass.  398. 
59  Am.  Rep.  99.  In  this  case  it  was 
held  that  a  contract  by  which  an  at- 
torney depends  on  the  contingency  of 
success  for  payment  for  all  services, 
and  the  client  agrees  to  furnish  evi- 
dence and  pay  all  actual  costs,  and 
that  the  attorney  shall  be  entitled  to 
a  large  and  liberal  fees,  not  to  exceed 
fifty  per  cent  of  the  amount  col- 
lected, is  not  champertous  nor  void 
for  maintenance. 

W.  Allen,  J.  says:  "There  was 
no  agreement  that  the  plaintiff  should 
receive  a  share  of  the  amount  recov- 
ered as  compensation  for  his  services. 
It  is  immaterial  that  the  avails  of  the 
suit  were  the  means  or  the  security 
on  which  he  relied  for  payment,  if  it 
was  to  be  payment  of  a  debt  due 
from  the  defendants.  Thurston  v. 
Percival,  1  Pick.  415;  Lathrop  v. 
Amherst  Bank,  9  Mete,  489. 

Ackert«.  Barker,  131  Mass.  436,  and 
Belding  v.  Smythe,  138  Mass.  530,  are 
cases  of  champerty,  where  a  part  of 
the  amount  recovered  was  to  be  re- 
ceived in  compensation  for  services, 
and  there  was  to  be  no  personal  lia- 
bility. Where  the  right  to  compensa- 
tion is  not  confined  to  an  interest  in  the 


§846. 


THE    LAW    OF   AGENCY.  [Book  Y. 


In  some  of  the  States,  statutes  have  been  enacted  leaving  the 
client  and  his  attorney  free  to  make  such  contracts  in  reference 
to  the  latter's  compensation  as  they  deem  best.' 

S  846.  Such  Contracts  do  not  prevent  Settlement  by  Client. 
A  contract  for  a  contingent  compensation,  in  the  absence  of  a 
statute,  gives  the  attorney  no  such  interest  in  the  cause  of  action, 
before  judgment,  as  will  defeat  a  settlement  made  by  the  client 
with  the  opposite  party  in  disregard  of  the  attorney,  although  the 
opposite  party  had  notice  of  the  contract.*  In  order  to  protect 
the  attorney  before  judgment  there  must  be  an  assignment  to 
him  of  an  interest  in  the  cause  of  action,  of  which  notice  must 
be  given  to  the  other  party,  and  this  method  will  avail  only  in 
those  cases  in  which  the  cause  of  action  is  legally  assignable. 

S  847.  But  Attorney  may  recover  from  Client.  But  the  client 
will  not  be  permitted,  by  settling  with  the  adverse  party,  to 
deprive  the  attorney  of  his  compensation  ;  and  if  the  client  thus 
prevents  the  attorney  from  completing  his  contract  by  settling 
and  dismissing  the  suit,  the  attorney  will  be  entitled  to  recover 
from  the  client  as  if  the  contract  had  been  fully  performed, 
where  there  are  any  means  of  determining  what  full  perform- 
ance would  have  realized,'  and,  in  any  event,  what  the  services 
rendered  were  reasonably  worth.* 

thing  recovered.but  gives  a  right  of  ac-  56  Wis.    471,    43    Am.     Rep.    735; 

tion  against  the  party, though  pledging  Coughlia  e.  New  York   Central,  «&c. 

the  avails  of  the  suit,  or  a  part  of  them,  R  R.  Co.,  71  N.  Y.  443,  27  Am.  Rep. 

as  security  for  payment, the  agreement  75;  Lamont  v.  Washington,  &c.  R.  R. 

is  not  champertous.    Tapley  c.  Coffin,  Co.,  2  Mackey  (D.   C.)  502,  47  Am. 

12  Gray,  420;  Scott  v.  Harmon.  109  Rep.  268 ;  McBratney  ».  Railroad  Co., 

Mass.  237;  s.c,  12  Am.  Rep.  685;  Mo-  17  Hun  (N.  Y.)  385;  Quincey  v.  Fran- 

Pht-rson  v.  Cox.  96  U.  S.  404;  Christie  cis.  5  Abb.  (N.  Y.)  N.  C.   286;  Sull- 

«,  Sawyer,  44  N.  H,  298;  Anderson©.  ivan  v.  O'Keefe,  53    How.  Pr.    426; 

Radcliflfe.E..  B.  &  E.  806,  817."  Swanston  v.      Mining  Co.,   13  Fed. 

1  Thus  in  Michigan  it  is  provided  Rep.  215;  Pulver  r.  Harris,  62  Barb, 

by  How.  Stats.  §  9004  "  That  all  ex-  (N.  Y.)  500,  affirmed,  52  N.  Y.  73. 
isting  laws,  rules,  and  provisions  of  Even  after  verdict,  if  before  judg- 

law,   restricting    or    controlling    the  meut;  Miller  ».  Newell,  20  8.  0.   122, 

right  of  a  party  to  agree  with  an  attor-  47  Am.  Rep.  833. 
ney,  solicitor,  or  counsel,  for  his  com-  "Kersey   v.    Garton,    77  Mo.  645; 

pensation,  are  repealed,  and  hereafter  Myers  v.  Crockett,  14  Tex.  257;  Pols- 

the  measure  of  such  compensation  ley  v.  Anderson,  7  W,  Va.   202,   23 
shall  be  left  to  the  agreement,  express      Am.  Rep.  613. 
or  implied,  of  the  parties."  *  Quint   v.    Ophir    Mining  Co.,  4 

»  Kusterer  v.  City  of  Beaver  Dam,      Nev.  305. 

712 


Chap.  I.] 


ATT0KNET8   AT    LAW. 


§849. 


ft.  Where  there  was  no  special  Contract. 
§  848.     Attorney  entitled  to  reasonable  Value  of  his  Services. 

Where  no  express  contract  is  made  fixing  the  amount  which  the 
attorney  is  to  receive  from  his  client,  he  is  entitled  to  recover 
the  reasonable  value  of  the  services  rendered.' 

§  849.  What  Evidence  admissible.  In  determining  what  this 
reasonable  value  is,  a  variety  of  elements  are  to  be  taken  into 
consideration.  The  nature  of  the  controversy  and  the  questions 
involved;  the  amount  at  issue;  the  skill  and  labor  required;  the 
responsibility  imposed  ;  the  standing,  experience,  learning,  repu- 
tation, tact,  assiduity  and  integrity  of  the  attorney  ;  the  success 
achieved ;  all  of  these  are  properly  to  be  considered  in  determin- 
ing the  value  of  the  service  rendered." 


'  Esgleston  v.  Boardman,  37  Mich. 
14,  and  cases  cited  in  following 
note. 

2  Eggleston  v.  Boardman,  37  Mich. 
14;  Bruce  v.  Dickey,  116  111.  527; 
Campbell  v.  Goddard,  17  111.  App. 
885;  Smith  v.  Chicago,  &c.  Ry  Co., 
60  Iowa,  515;  Phelps  u  Hunt,  40 
Conn.  97;  People  v.  Bond  Street  Sav- 
ings Bank,  10  Abb.  N.  Cas.  15;  Vilas 
V.  Downer,  21  Vt.  419;  Kentucky 
Bank  v.  Combs,  7  Penn.  St  543; 
Stanton  v.  Embrey,  93  U.  S.  557. 

In  Eggleston  «.  Boardman,  supra, 
the  court  said:  "  Counsel  insist  that, 
in  the  absence  of  a  special  contract, 
one  day's  work  in  an  important  cause 
is  worth  no  more  than  the  same  ser- 
vices in  a  suit  of  less  magnitude;  that 
as  well  might  any  laborer  or  mechanic 
charge  extra  wages  per  day  when 
fortunate  enough  to  secure  a  large 
job;  that  where  work  requires  a  dif- 
ferent kind  of  skill  or  workmanship, 
then,  of  course,  such  charge  should 
be  made  as  the  skill  required  would 
command,  but  the  same  skill  and 
workmanship  upon  an  important 
piece  of  work,  would  bring  no  more 
per  day  then  when  it  was  applied  to 
a  lesser  job;  and  that  the  same  knowl- 
edge of  practice  and  rules  of  law  are 


required  of  the  attorney  or  solicitor 
in  one  case  as  the  other. 

We  cannot  concur  in  this  reason- 
ing, the  effect  of  which,  if  adopted, 
would  be  to  establish  a  scale  of  com- 
pensation for  professional  services, 
when  the  amount  to  be  paid  was  not 
specially  agreed  upon,  dependent 
upon  the  skill  and  professional  stand- 
ing of  the  person  employed,  and  the 
actual  time  by  him  devoted  to  the 
work,  but  without  any  reference  to 
the  real  nature  of  the  questions  he 
was  called  upon  to  investigate,  or  the 
amount  in  controversy,  and  the  in- 
creased care  and  responsibility  aris- 
ing therefrom. 

Whenever  an  attorney  or  solicitor 
is  retained  in  a  cause,  it  becomes  liis 
implied  duty  to  use  and  exercise  rea- 
sonable skill,  care,  discretion  and 
judgment  in  the  conduct  and  man- 
agement thereof.  It  would  be  very 
difficult  to  lay  down  any  definite  rule 
or  principle,  applicable  alike  to  all 
cases,  as  to  the  care  and  skill  required. 
Each  case  must  be  governed  by  its 
own  peculiar  facts  and  circumstances, 
and  the  amount  in  controversy  must 
in  every  case  play  a  very  important 
part  in  the  determination  of  this 
question.    The    lapidary    who  cuts, 


713 


§849. 


THE   LAW    OF   AGENCY. 


[Book  V. 


For  the  purpose  of  aiding  the  court  or  jury  in  arriving  at  the 
value,  the  testimony  of  attorneys  or  others  having  knowledge  of 
it,  as  to  what,  in  their  opinion,  the  services  were   reasonably 


polishes  and  engraves  a  precious 
Btone  of  exceedingly  great  value, 
must  exercise  much  more  care,  skill 
and  judgment  than  would  be  required 
in  the  performance  of  like  work 
upon  one  of  but  ordinary  or  little 
value,  and  he  would  be  entitled  to 
demand  and  receive  a  correspond- 
ingly increased  compensation  in  the 
former  case,  than  he  would  in  the 
latter,  although  the  time  spent  by 
him  in  each  case  was  the  same. 
The  common  carrier  charges  much 
more  for  carrying  jewels,  gold,  bank- 
bills  or  valuable  papers,  than  for 
more  bulky  and  less  valuable  things, 
although  the  latter  may  be  vastly 
more  heavy,  cumbersome,  and  in 
fact  much  more  expensive  to  trans- 
port. 

The  right  to  increased  compensa- 
tion in  these  cases  and  in  many  others 
that  might  be  mentioned,  is  univer- 
sally recognized.  No  one  questions 
such  right,  yet  what  causes  the  differ- 
ence in  compensation?  Nothing  but 
the  increased  responsibility  depend- 
ent upon  the  value  of  the  article,  in 
the  case  of  the  carrier;  in  the  other 
case,  the  same  fact,  coupled,  perhaps, 
with  the  skill  of  the  person  who  per- 
forms the  work. 

The  artist  who  transfers  to  the 
cauvas  the  living  likeness,  destined, 
perhaps,  to  become  immortal  as  a 
work  of  art,  is  entitled  to  a  vastly 
higher  compensation  than  he  would 
be  for  spending  the  same  time  in 
painting  buildings,  even  although  the 
quantum  of  work  done  in  the  latter 
case  might  be  estimated  by  the  square 
yard.  The  ri^umpense  to  be  paid 
the  sculptor  who  conceives,  molds 
and  produces  his  masterpiuce-s  of  form 
cuHuot  be   measured   and  fixed  by  a 


standard  based  alone  upon  the  time 
he  spent  in  their  production.  Nor  in 
cases  where  they  were  merely  exe- 
cuted under  his  direction,  could  his 
reward  be  fixed  upon  the  same  stand- 
ard as  of  those  who  performed  the 
manual  labor  under  his  personal 
supervision.  The  productions  of  the 
composer,  the  poet  and  the  author, 
cannot  be  valued  by  the  time  appar- 
ently spent  in  their  preparation. 
They  are  formed  of  a  combination  of 
ideas  which  may  have  cost  their 
authors  years  of  application  to  com- 
plete. 

The  lawyer,  who  in  order  to  excel 
in  his  profession,  has  devoted  years 
to  preliminary  studies  and  has  spent 
much  labor  and  money  to  thoroughly 
fit  him  for  his  calling,  so  that  he 
might  be  able  to  act  as  an  advocate 
in  court,  or  as  a  counsellor  to  guide 
and  direct  others — to  furnish  them 
from  his  vast  storehouse  of  knowl- 
edge, ripened  and  perfected  from 
long  experience,  with  such  ideas  and 
suggestions  which,  when  carried  out 
and  followed  up,  would  lead  to  suc- 
cess— how  shall  his  services  be  esti- 
mated? 

It  is  very  evident  that  the  responsi- 
bility, the  care,  anxiety  and  mental 
labor  is  much  greater  in  a  case  where 
the  amount  in  controversy  is  large 
than  where  it  is  insignificant, 
although,  perhaps  the  same  questions 
might  be  raised  in  each  case,  or  the 
more  difficult  questions  arise  in  the 
case  where  the  amount  was  of  but 
Blight  consequence.  Nor  is  this  re- 
sponsibility, care  and  mental  labor 
dependent  alone  upon  the  number  of 
hours  or  days  which  may  be  given  to 
the  preparation  and  trial  or  argument 
of  a  case.     This    responsibility   and 


714 


Chap.  I.] 


ATTORNEYS    AT    LAW. 


850. 


worth  under  the  circumstances,  is  properly  admissible.*  And  so 
it  is  proper  to  receive  evidence  as  to  the  price  usually  charged 
and  received  for  similar  services  by  other  persons  of  the  same 
profession,  practicing  in  the  same  court.* 

Where  an  attorney  was  employed  in  a  number  of  cases  involv- 
ing a  large  amount,  and  a  few  only  of  these  cases  were  selected 
and  tried,  as  test  cases,  it  was  held  that  the  entire  amount  in- 
volved was  to  be  considered  and  not  that  alone  which  was  repre- 
sented by  the  test  cases.' 

§  850.  What  Evidence  not  admissible.  Evidence  of  the 
amount  paid  by  the  opposite  party  to  his  attorney  is  not  admis- 
sible,* nor,  in  general,  is  the  amount  which  one  attorney  receives, 
any  criterion  as  to  the  value  of  the  services  of  another  attorney, 
in  the  absence  of  evidence  that  the  services  were  similar,  the 
skill,  standing  and  experience  equal,  and  the  labor  the  same.^ 


mental  anxiety  is  not  so  imaginative 
aud  shadowy  that  it  should  not  be 
considered  in  arriving  at  a  proper 
compensation  to  be  allowed  in  fixing 
the  value  of  the  services  rendered. 
Nor  is  the  number  of  days  which 
may  be  given  to  the  preparation  of  a 
case  alone,  even  if  the  exact  time 
could  be  ascertained  in  any  given 
case,  a  governing  test.  Twelve  hours 
spent  in  the  study  of  a  novel  will  not 
usually  be  as  exhausting  as  the  same 
time  devoted  to  the  study  of  Coke 
upon  Littleton  would  be,  even 
although  a  great  deal  more  ground 
might  be  gone  over  in  the  former, 
than  would  in  all  probability  be  in 
the  latter  case. 

We  can  see  no  analogy  between 
this  kind  or  class  of  work  and  that 
performed  by  the  ordinary  laborer, 
nor  can  the  creditable  fact,  that 
attorneys  generally,  where  the 
amount  in  controversy  is  small,  or 
their  client  is  poor,  charge  and 
receive  much  less  than  their  services 
may  in  fact  have  been  worth,  prevent 
their  recovering  a  reasonable  com- 
pensation in  proportion  to  the  mag- 
nitude of  the  interests  committed  to 


their  care.  In  fact  in  all  cases,  the 
professional  skill  and  standing  of  the 
person  employed,  his  experience,  the 
nature  of  the  controversy,  both  in 
regard  to  the  amount  involved  and 
the  character  and  nature  of  the  ques- 
tions raised  in  the  case,  as  well  as  the 
result,  must  all  be  taken  into  con- 
sideration in  fixing  the  value  of  the 
services  rendered." 

*  Thompson  v.  Boyle,  85  Penn.  St. 
477,  Williams  v.  Brown,  28  Ohio  St. 
547:  Covey  v.  Campbell,  53  Ind.  157; 
Hart  V.  Vidal,  6  Cal.  56;  Lamoure  «. 
Caryl,  4  Denio  (N.  Y.)  370. 

See  upon  this  subject  the  exhaustive 
discussions  in  Kelley  v.  Richardson, 
—  Mich.  — ,  14  West.  Rep.  416,  and 
Turnbull  v.  Richardson,  —  Mich.  — , 
14  West.  Rep.  444. 

«  Thompson  v.  Boyle,  supra;  Vilas 
V.  Dowuer,  21  Vt.  419;  Stanton  v. 
Embrey,  93  U.  S.  557. 

3  Bruce  v.  Dickey,  116  111.  527. 

*  Ottawa  University  v.  Parkinson, 
14  Kans.  159. 

*  Ottawa  University  v.  Parkinson, 
14  Kiins.  159;  Ottawa  University  «. 
Welsh,  Id.  164. 


715 


§  851.  THE    LAW    OF    AGENCY.  [Book    Y. 

Local  bar  rules,  prescribing  rates  of  compensation,  are  not 
binding  upon  the  client  unless  it  be  shown  that  he  had  such 
knowledge  of  them  as  to  warrant  the  presumption  that  he  em- 
ployed the  attorney  with  reference  to  them.' 

§  851.  Lack  of  Sucooss  no  Defense.  It  is  no  part  of  the  im- 
plied contract  of  the  attorney  that  he  will  be  successful  in  every- 
thing which  he  undertakes.  He  may  stipulate  that  unless 
successful  he  shall  have  no  pay ;  but  unless  he  does  so,  the  fact 
that  his  efforts  were  unsuccessful  will  not  deprive  him  of  his 
compensation,  if  he  brought  to  the  task  a  reasonable  degree  of 
skill  and  learning,  and  performed  the  service  with  reasonable 
care  and  diligence.' 

§  852.  Negligence  or  bad  Faith  may  be  sho-wn.  But  the 
client  may  always  show,  either  in  bar  or  in  mitigation  of  dam- 
ages, that  the  attorney  so  negligently  performed  his  undertaking, 
or  so  abused  the  confidence  and  trust  which  were  imposed  in 
him,  that  his  services  were  of  no,  or  little,  value  to  his  client.' 
This  may  be  done  whether  the  amount  of  the  attorney's  compen- 
sation were  fixed  by  special  contract  or  not. 

The  general  rules,  heretofore  considered,  which  govern  the 
recoupment  of  damages  in  other  cases,  are  applicable  here.* 

§  853.  Pees  forfeited  by  Breach  of  Trust.— An  attorney  who 
collects  or  receives  money  for  his  client,  and  neglects  or  refuses, 
without  cause,  to  pay  it  to  him,  thereby  compelling  the  client  to 
resort  to  an  action  to  recover  it,  will  not  be  allowed  fees  for 
making  the  collection.  If  the  client  be  compelled  to  employ 
and  pay  other  attorneys  and  enter  into  litigation  with  an  attorney 
to  enforce  performance  of  a  duty  which  the  latter  should  have 
performed  voluntarily,  it  would  be  highly  unjust  that  he  should 
be  obliged  to  pay  the  defaulting  attorney  also.^ 

§  854.  How  when  Attorney  abandons  Service.  An  attorney 
who  is  retained  generally  to  conduct  a  legal  proceeding,  is  pre- 

•BoylantJ.  Holt,  45  Miss.  277.  Nixon  v.  Phelps,  29  Vt.   198;  Porter 

*  Bills  t).  Polk,  4  Lea  (Tenn.)  494;  v.  Ruckman,  38  N,  Y.  210;  Hopping 

Brackett  v.  Sears.lS  Mich.  244.    Rush  v.    Quin,    13    Wend.    (N.    Y.)    517; 

t).  Cavenaugh,  2  Pean.  St.  187.  Brackett  ®.  Norton,  4  Conn.  517. 
»  Chatfield  «.  Simonson,   92  N.  Y.  <  See  ante,  §  647. 

209;  Caverly  c.  McOwen,  126  Mass.  »  Gray    v.    Conyers,    70    Ga.    349; 

222;  Pearson  ».  Darrington,  32  Ala.  Large  v.  Coyle,  Penn.  12  Atl.  Rep. 

227;   Maynard  t>.   Briggs,  26  Vt.  94;  343. 

716 


Chap.  I.]  •    ATTORNEYS    AT   LAW.  §  855. 

Bumed,  in  the  absence  of  anything  to  indicate  a  contrary  intent, 
to  enter  into  an  entire  contract  to  conduct  the  proceeding  to  its 
termination ;  and  he  cannot  lawfully  abandon  the  service,  before 
such  termination,  without  justifiable  cause  and  reasonable  notice.* 

If,  therefore,  an  attorney,  without  just  cause,  abandons  his 
client  before  the  proceedings  for  which  he  was  retained  have 
been  conducted  to  a  termination,  he  will,  in  those  jurisdictions 
where  the  stricter  requirement  of  an  entire  performance  prevails, 
forfeit  all  right  of  payment  for  any  services  which  he  has  ren- 
dered.' Where,  however,  the  more  liberal  rule  of  Britton  v. 
Turner  prevails,  the  attorney  would  undoubtedly  be  permitted 
to  recover  the  reasonable  value  of  the  service  rendered,  less  any 
damages  wiiich  the  client  might  have  sustained  by  reason  of  the 
abandonment.' 

But  if  the  attorney  has  sufficient  reason  to  justify  his  abandon- 
ment, he  may  in  all  cases  recover  what  the  services  already  ren- 
dered are  reasonably  worth,*  and  if  the  service  had  been  under- 
taken for  a  fixed  sum,  it  has  been  held  that  he  may  treat  the 
cause  for  abandonment  as  a  prevention  of  completion  by  the 
client,  and  recover  the  stipulated  price.* 

§  855.  What  will  justify  Abandonment.  No  general  rule  can 
be  laid  down  by  which  it  can,  in  all  cases,  be  determined  what 
cause  will  be  sufficient  to  justify  an  attorney  in  abandoning  a 
case  in  which  he  has  been  retained.  But  if  the  client  refuses  to 
advance  money  to  pay  the  expenses  of  the  litigation,  or  if  he 
unreasonably  refuses  to  advance  money,  during  the  progress  of  a 
long  litigation,  to  his  attorney  to  apply  upon  his  compensation, 
sufficient  cause  may  be  furnished  to  justify  the  attorney  in  with- 
drawing from  the  further  service  of  the  client."     So  any  con- 

1  Tenney  v.  Berger,   93  N.  Y.  524,  »  See  ante,  %  636,  ei  seg. 

45  Am.  Rep.  263;  Bathgate  u.Haskia,  *  Tenney  v.  Berger,  supra;  Eliot  «. 

59  N.  Y.  535;  Davis  v.  Smith,  48  Vt.  Lawton,  supra. 

54;    Menzies   v.   Rodrigues,    1  Price  s  See  Kersey  f.  Garton,  77  Mo.  645. 

Exch.  92;  Stokes  v.  Trumper,  2  K.  &  Baldwin  v.  Bennett,  4  Cal.  392;  Hunt 

J.  232;  Cresswell  v.  Byron,  14  Vesey  v.  Test,  8  Ala,  713;  Myers  v.  Crock- 

,Jr.    272;    Nicholls  v.  Wilson,   11  M.  ett,    14    Tex.    257;    McElhinney    v. 

&  W.  106;  Eliot  V.  Lawton,  7  Allen  Kline,   6    Mo.    App.    94;   Polsley  e. 

(Mass.)  274,  83  Am  Dec.  683;  Harris  Anderson,,    7  W.    Va.    202,   23   Am. 

V.  Osborn,  2  C.  &  M.  629.  Rep.  613. 

«  Tenney  v.  Berger,  93  N.  T.  524,  «  Tenney  v.  Berger,  93  N.  Y.  524, 

45  Am.  Rep.  263.  45  Am.  Rep.    263;  Eliot   v.  Lawton, 

717 


ft  856,  THE   LAW   OF    AGENCY.  [Book  V. 

duct  upon  the  part  of  the  client  during  the  progress  of  the  litiga- 
tion which  would  tend  to  degrade  or  humiliate  the  attorney,  such 
as  attempting  to  sustain  his  case  by  the  subornation  of  witnesses,  or 
any  other  unjustifiable  means,  would  furnish  sufiicient  cause.'  So 
if  the  client  demanded  of  the  attorney  the  performance  of  an  illegal 
or  unprofessional  act ;  or  if  the  client  were  seeking  to  use  the 
attorney  as  a  tool  to  carry  out  the  malicious  or  unlawful  designs 
of  the  client,  the  attorney  might  lawfully  abandon  the  service.' 
So  if  the  client  insists  upon  the  employment  of  counsel  with 
whom  the  attorney  cannot  cordially  co-operate,  the  attorney  will 
be  justified  in  withdrawing  from  the  case.' 

§  856.  When  discharged,  by  Client.  The  client  has  undoubted 
power  to  discharge  his  attorney  at  any  time  and  with  or  without 
cause.  The  general  retainer  of  the  attorney,  as  has  been  seen, 
implies  an  undertaking  on  his  part  to  continue  to  act  until  the 
termination  of  the  proceeding  and  he  cannot  abandon  the  service 
before  that  time  without  good  cause  and  reasonable  notice.  But 
while  the  attorney  is  thus  bound  to  entire  performance,  and  the 
contract  as  to  him  is  treated  as  entire,  it  is,  as  is  said  by  Judge 
Eabl,  "  a  singular  feature  of  the  law  that  it  should  not  be  treated 

7  Allen  (Mass.)    274,  83  Am.   Dec.  duce  as  counsel  in  the  case  a  person 

ggg  of  bad  character,  or  of  much  inferior 

'  Tenney  v.  Berger,  supra.  standing  and  learning,— one  not  car- 

2  See  Burnap  «.  Marsh,  13  111.  535;  pable  of  giving  discreet  or  able  ad- 
Peck  V.  Chouteau,  91  Mo.  140,  60  vice.  It  would  humiliate  an  attorney 
Am.  Rep.  236.  to  sit  down  to  the  trial  of  a  cause, 

3  Tenney  v.  Berger,  supra.  "  The  and  to  see  his  case  ruined  by  the  mis- 
attorney"  says  Earl,  J. ,  in  this  case,  management  of  counsel.  The  rela- 
"  is  always  interested  to  know  with  tions  between  attorney  and  counsel, 
whom  he  is  to  be  associated  in  the  trial  too,  are  of  a  delicate  and  confidential 
of  a  cause.  The  counsel  is  supposed  nature.  They  should  have  faith  in 
to  be  his  superior,  and  is  usually  each  other,  and  their  relations  should 
employed  on  account  of  his  superior  be  such  that  they  can  cordially  co- 
ability,  experience,  reputation  or  operate.  While  a  client  has  the  un- 
professional standing,  and  after  an  doubted  right  to  employ  any  counsel 
attorney  has  eniraged  in  a  cause,  it  he  chooses,  yet  it  is  fair  and  proper, 
would  eeem  to  be  quite  proper  that  and  professional  etiquette  requires, 
he  should  be  consulted  as  to  the  per-  that  he  should  consult  the  attorney 
son  who  is  to  bear  the  important  re-  and  other  counsel  in  the  case,  so  that 
lation  to  him  of  counsel.  The  client  they  can  withdraw,  if  for  any  reason 
would  certainly  have  no  right,against  they  do  not  desire  to  be  associated 
the  protest  of  the  attorney,  to  intro-  with  them." 

718 


Chap.  I.]  ATTORNEYS   AT   LAW.  §  856. 

as  an  entire  contract  upon  the  other  side."*  Such,  however, 
seems  to  be  the  law.* 

The  client,  however,  will  not  be  permitted  to  discharge  his 
attorney  without  cause,  unless  he  first  pays  or  secures  the  attor- 
ney's fees  and  charges,  and  the  court  will  not  enforce  a  substitu- 
tion until  this  has  been  done.'  The  attorney's  lien  will  also  be 
protected,*  and  where  an  attorney  who  took  the  case  upon  a  con- 
tingent fee,  and  has  obtained  judgment,  is  discharged  without 
cause,  the  client  will  be  required  to  preserve  the  attorney's  lien 
upon  the  judgment." 

But  although  a  general  retainer  does  not,  of  itself,  imply  a 
promise  on  the  part  of  the  client  to  continue  to  employ  the  attor- 
ney until  the  termination  of  the  proceedings,  the  client  may, 
nevertheless,  bind  himself  by  contract  to  so  employ  him. 

Where,  therefore,  the  attorney  is  not  employed  for  a  definite 
period,  he  may  be  discharged  by  the  client  at  any  time,  and  if 
the  discharge  be  for  no  fault  of  the  attorney,  he  may  recover 
from  the  client,  the  reasonable  value  of  the  service  rendered. • 
So  if  the  attorney  is  employed  for  a  definite  time  and  is  dis- 
charged before  that  time  without  justifiable  cause,  he  will  be 
entitled  to  recover  from  the  client  the  damages  he  may  have 
sustained  by  reason  of  such  discharge.'  But  if  the  attorney  were 
discharged  for  a  cause  which  justified  it,  he  would,  under  the 
strict  rules  requiring  a  full  performance  as  a  condition  precedent 
to  the  recovery  of  compensation,  forfeit  all  right  to  pay  for  the 
services  rendered ;  *  but  under  the  rule  of  Britton  v.  Turner,  he 
could  recover  the  reasonable  value  of  his  services,  less  any  dam- 
ages which  the  client  had  sustained  by  his  default.* 

'InTenney  TJ.Berger,  93N.Y.524,  '  Kersey  «.  Garton,   77   Mo.    645; 

45  Am.  Rep.  263.  Baldwin    «.    Bennett,     4    Cal.    393; 

»  Tenney  v.  Berger,   supra;  Ogden  Hunt  v.  Test,  8  Ala,  713;    Myers  v. 

V.  Devlin,  45  N.  Y.  Super.  Ct.,  631;  Crockett,  14  Tex.   257;    McElhinney 

Trust  V.  Repoor,   15  How.  Pr.    570;  v.   Kline,  6  Mo.  App.  94;  Polsley  v. 

Gustinec.Stoddard,  23Hun(N.Y.)99.  Anderson.    7  W.    Va.    202,    23   Am. 

8  Ogden  V.    Devlin,  supra;    Super-  Rep.  C13. 

visors  B.  Brodbead,  44  How.  Pr.  411.  »  See  a?i<e  §635.  See  Walsh  «.  Shum- 

♦Hazlett  V.   Gill,  5  Robt.  (N.  Y.)  way,  65  111.  471  in  following  t^ection, 

611.  iiot^  3. 

6  Ronald ».  Mutual  Reserve  Fund  L.  »  See  ante  %  636.   Where  the  service 

Ass'n,  30  Fed.  Rep.  228.  is  substantially  completed,   attorney 

6  Tenney  v.    Berger,  supra;  Ogden  entitled  to  quantum  meruit.  Whitner 

V.  Devlin,  supra.  ■?). Sullivan,  —  S.C.  — 2S.  E.  Rep  391. 

719 


§857. 


THE    LAW    OF    AGENCY. 


[Book  Y. 


§  857.  What  will  justify  Discharge.  What  conduct  on  the 
part  of  an  attorney  emploj'ed  for  a  specific  period  will  justify 
his  discharge  before  that  period  has  expired,  is  not  easy  of  exact 
definition.  The  same  general  principles  would  govern  here 
which  apply  to  similar  employments  of  other  agents.'  But  cer- 
tainly if  the  attorney  should  be  disbarred  from  practice,  or  should 
prove  treacherous  to  his  client's  interests,  or  should  disregard  the 
instructions  or  limitations  which  the  latter  had  a  right  to  make, 
the  client  might  dismiss  him.  The  same  result  would  undoubt- 
edly follow  if  the  attorney  failed  to  possess  and  exercise  that  rea- 
sonable degree  of  skill  and  knowledge  which  the  nature  of  his 
undertaking  implies,  and  so  it  has  been  held  that  if  the  attorney 
fails  to  use  reasonable  diligence  in  the  performance  of  his  duty, 
he  may  be  discharged.' 


>  See  ante  %%  615-619. 

9  Walsh  «.  Shumway,  65  111.  471. 
In  this  case  Shumway  had  employed 
one  Sloan,  an  attorney,  to  prosecute 
an  action  of  ejectment,  Sloan  agree- 
ing to  take  charge  of  the  litigation, 
and  was  to  receive  as  a  fee  one-fourth 
of  the  property  recovered.  After 
Sloan  had  been  employed  for  about 
four  years  without  accomplishing 
anything,  Shumway  took  the  case  out 
of  his  hands  and  employed  another 
attorney,  who  soon  effected  a  favora- 
ble settlement.  Lawrence,  C.  J., 
said:  "  Sloan  had  had  the  business  in 
charge  about  four  years,  and  had  not 
progressed  beyond  the  filing  of  a  de- 
claration in  ejectment.  Under  such 
a  contract  as  that  existing  between 
Shumway  and  Sloan,  it  is  the  duty 
of  the  attorney  to  exercise  reasonable 
diligence  in  the  prosecution  of  the 
suit,  and  if  he  fails  to  do  so,  the  cli- 
ent must  be  at  liberty  to  seek  other 
aid.  If  compelled  to  do  this,  he  can 
not  be  required  to  execute  the  origin- 
al agreement. 

While  he  cannot  rescind  the  con- 
tract at  discretion,  it  results,  from  its 
very  nature,  that  he  may  do  so  if  the 
attorney    fails    to      use    reasonable 


diligence  in  the  performance  of  his 
part  of  the  undertaking.  Whether, 
in  such  event,  the  attorney  would  be 
entitled  to  any  compensation  for  ser 
vices  rendered.has  not  been  discussed 
in  the  present  case;  but,  upon  tlie 
well  recognized  principle  governing 
analogous  cases,  we  do  not  perceive 
how  compensation  can  be  given  upon 
the  principle  of  a  quantum  meruit. 
The  contract  is  an  entirety,  and  tlie 
attorney  having  failed  to  perform, 
there  can  be  no  apportionment  of 
compensation.  Of  course  it  differs 
from  a  case  where  an  attorney  has 
been  retained  without  a  specific  con- 
tract. 

That  there  was  a  degree  of  neg- 
ligence which  justified  Shumway  in 
virtually  rescinding  his  contract  with 
Sloan,  cannot  be  reasonably  denied. 
The  ejectment  was  commenced  in 
December,  1866,  and  stood  until  the 
compromise  was  made,  in  May,  1870, 
without  having  been  brought  to  trial. 
No  satisfactory  reason  is  shown.  The 
adverse  title  depended  upon  the  val- 
idity of  a  deed  made  under  a  power 
of  attorney  executed  by  Mr.  and  Mrs. 
Luff.  When  the  deed  was  executed, 
they   were    residents  of    this    state. 


720 


Chap.  I.]  ATTORNEYS   AT   LAW.  §  859. 

§  858.  When  Attorney's  Claim  barred  by  Limitation.  The 
statute  of  limitations  begins  to  run  against  the  attorney  from  the 
time  his  right  of  action  accrues,  and  his  right  of  action  accrues  at 
the  time  his  undertaking  is  completed.  Under  a  general 
retainer,  as  has  been  seen,  the  contract  of  the  attorney  is 
considered  to  be  an  entire  one  to  conduct  the  cause  to  its  termi- 
nation, and  the  statute  would  operate  from  the  time  of  the  entry 
of  the  judgment.'  Where,  however,  the  attorney  was  employed 
specially  to  render  a  particular  service,  as  to  argue  a  cause  or 
prepare  a  brief,  the  right  of  action  would  accrue,  and  the  statute 
begin  to  run,  from  the  time  the  particular  service  was  completed. 
.  And  so  though  the  retainer  be  general,  yet  if  the  attorney  be 
discharged  by  the  client  before  the  termination  of  the  suit,  or  if, 
for  sufficient  reason,  the  attorney  abandons  the  cause  before  its 
termination,  his  right  of  action  would  accrue  at  once,  and  the 
period  of  the  statute  begin  to  run.* 

Upon  contracts  for  payment  at  a  particular  time,  as  to  pay 
when  the  judgment  should  be  collected,  the  statute  would  oper- 
ate only  from  the  time  when  by  the  terms  of  the  contract  the 
attorney  was  entitled  to  demand  his  compensation.* 

3.     Attorney's  Right  to  Lien. 

§  859.  Two  Kinds  of  Lien.  The  lien  to  which  an  attorney 
at  law  may  be  entitled  is  of  two  kinds :  1.  The  general  or  retain- 
ing lien,  and  2.  The  special,  particular  or  charging  lien. 

and  the  only  question  was,  whether  •  "Whitehead  «.   Lord,   7  Ex.  691 ; 

as  the    law    then   stood,  a  married  Harris  v.  Osburn,   2  Cromp.  &   M. 

woman,  resident  in  this  state,  could  629 ;  Martindale  v.  Falkner,   2  Com. 

convey  her  land  by  an  attorney  in  B.  706;  Phillips  v.   Broadley,  9  Q.  B. 

fact.    This  being  the  nature  of  the  744;  Eliot  v.  Lawton,  7  Allen  (Mass.) 

case,  we  cannot  accept  any  of  the  ex-  274,    83    Am.  Dec.  683;  Walker    v. 

cuses    offered    for     the    delay   as  a  Goodrich,  16  111.  341 ;  Fenns  v.  Eng- 

reasonable  explanation.  The  question  lish,   22  Ark.  170;  Bathgate  v.  Has- 

in  issue  was  merely  one  of  law.   The  kin,  59  N.  Y.  538,  Davis  v.  Smith,  48 

proof  to  be  made,  in  order  to  present  Vt.  52. 

the   question,   was  of    the    simplest  « Eliot  v.   Lawton,  supra-,  Adama 

character.     The  delay  raises  a  pre-  e.  Fort  Plain  Bank,  36  N.  Y.  255. 

sumption    of  extreme  negligence  on  »  Foster  v.  Jack,   4  Watts   (Penn.) 

the  part  of  Sloan, which  has  not  been  334;  Morgan  ».  Brown,  12  La.  Ann. 

explained,  and  which  justified  Shum-  159. 
way  in  treating  the  contract  as  at  an 
end." 

46  721 


§860. 


THE    LAW   OF    AGENCY. 


[Book   V. 


1.     ITie  General  or  Retaining  Lien. 

§  860.  General  Nature  of  this  Lien.  An  attorney's  general 
or  retaining  lien  is  a  common  law  lien,  to  which  the  attorney  at 
law  is  entitled  to  secure  the  payment  of  his  costs  and  charges 
against  his  client.  This  lien  is  based  upon  possession,  and  is  a 
mere  right  of  retaining  the  property,  money  or  papers,  to  which 
it  adheres,  until  the  costs  and  charges  are  paid.  Like  other  pos- 
«essory  liens,  this  lien  is  purely  passive,  and  cannot,  in  the  absence 
of  a  statute  permitting  it,  be  enforced  by  a  sale  of  the  property 
which  it  covers.' 

S  861.  Declared  by  Statute  in  some  States.  Not  only  has 
this  lien,  as  will  be  seen  in  the  following  sections,  been  recognized 
and  enforced  by  the  courts,  but  in  several  of  the  States  it  has 
been  declared,  enlarged  and  protected  by  statutory  enactments. 
The  substance  of  these  statutes  will  be  found  in  the  note.' 


^In  re,  WUson,  12  Fed.  Rep.  235, 
26  Alb.  L.  Jour.  271;  Brown  v.  Big- 
ley,  3  Tenn.  Ch.  618;  Bozon  v.  BoU- 
and,  4  Myl.  &  Cr.  854 

tin  Iowa  by  Rev.  Code,  §215. 
"  An  attorney  has  a  lien  for  a  general 
balance  of  compensation  upon: 

1.  Any  papers  belonging  to  his 
client,  which  have  come  into  his 
hands  in  the  course  of  his  profes- 
sional employment. 

2.  Money  in  his  hands  belonging  to 
his  client. 

3.  Money  due  his  client  in  the  hands 
of  the  adverse  party,  or  attorney  of 
such  party,  in  an  action  or  proceeding 
in  which  the  attorney  claiming  the 
lien  was  employed,  from  the  time  of 
giving  notice  in  writing  to  such 
adverse  party,  or  attorney  of  such 
party,  if  the  money  is  in  the  posses- 
sion or  under  the  control  of  such 
attorney,  which  notice  shall  state  the 
amount  claimed,  and,  in  general 
terms,  for  what  services. 

4.  After  judgment  in  any  court  of 
record,  such  notice  may  be  given  and 
the  lien  made  effective  against  the 
judgment  debtor  by  entering  the  same 


in  the  judgment  docket  opposite  the 
entry  of  the  judgment." 

In  Dakota,  by  Code,  ed.  1885,  p. 
847,  §  9,  the  same  provision  is  made 
as  in  Iowa. 

In  Minnesota,  Stats.  1878,  p.  866. 
§  16,  the  provision  is  substantially  as 
in  Iowa,  except  that  the  4lh  subdivis- 
ion gives  a  lien  "upon  a  judgment, 
to  the  extent  of  the  costs  included 
therein,  or,  if  there  is  a  special  agree- 
ment, to  the  extent  of  the  compensa- 
tion specially  agreed  on,  from  the 
time  of  giving  notice  to  the  party 
against  whom  the  judgment  is  recov- 
ered. This  lien  is,  however,  subor- 
dinate to  the  rights  existing  between 
the  parties  to  the  action  or  proceed- 
ing-" By  §  284,  p.  751,  assignments 
of  the  judgment  do  not  defeat  this 
lien. 

In  Kentucky,  Genl.  Stats.  1873,  p. 
149,  §15,  "Attorneys  at  law  shall 
have  alien  upon  any  choses  in  action, 
account,  or  other  claim  or  demand 
put  into  his  or  their  hands  for  suit  or 
collection;  and  when  he  or  they  have 
been  employed,  by  either  plaintiff  or 
defendant,  in  any  action  which  is  pro- 


722 


Chap.  I.] 


ATTORNEYS    AT    LAW. 


862. 


§  862.  What  this  Lien  adheres  to.  This  lien  of  the  attorney 
may  attach  to,  {a)  papers,  (J>)  property,  or,  (c)  money,  of  the  client 
in  the  attorney's  possession. 


eecuted  by  him  or  them  to  recovery, 
shall  have  a  lien  upon  the  judgment 
for  money  or  property,  either  personal 
or  real,  which  may  be  recovered  in 
said  action — legal  costs  excepted — for 
the  amount  of  any  fee  which  may 
have  been  agreed  upon  by  the  parties, 
or  in  the  absence  of  such  agreement, 
for  a  fair  and  reasonable  fee  for  the 
services  of  such  attorney." 

In  Colorado,  Genl.  Stats.  1883,  §85, 
"All  attorneys  and  counselors  at  law 
fihall  have  a  lien  upon  any  money  or 
property  in  their  hands,  or  upon  any 
judgment  they  may  have  obtained, 
belonging  to  any  client,  for  any  fee 
or  balance  of  fees  due,  or  any  pro- 
fessional services  rendered  by  them 
in  any  court  of  this  State,  which  said 
lien  may  be  enforced  by  the  proper 
civil  action," 

In  Kansas,  Comp.  Laws,  p.  114, 
§§  468,  469,  a  lien  is  provided  sub- 
stantially as  in  Iowa. 

In  Nebraska,  Comp.  Stats.  1885,  p. 
83,  I  8,  and  Wyoming,  Rev.  Stats. 
1887,  I  138,  an  attorney  has  a  lien  for 
a  general  balance  of  compensation 
upon  the  papers  of  his  client  which 
have  come  into  his  possession  in  the 
course  of  his  employment,  and  upon 
money  in  his  hands  belonging  to  his 
client  and  upon  money  in  the  hands 
of  the  adverse  party  in  an  action  or 
proceeding  in  which  the  attorney  was 
employed  from  the  time  of  giving 
notice  of  the  lien  to  that  party. 

In  Georgia,  Code  1882,  §1989, 
attorneys  at  law  have  a  special  lien 
on  all  papers  and  money  of  their 
clients  in  their  possession,  for  ser- 
vices rendered.  Their  liens  upon 
suits,    judgments    and    decrees    for 


money  are  superior  to  all  liens, 
except  for  taxes,  and  no  person  may 
satisfy  the  suit,  judgment  or  decree, 
until  the  lien  or  claim  is  fully  paid. 
They  have  a  lien  also  upon  all  suits, 
judgments  or  decrees  for  the  recovery 
of  real  or  personal  property,  as  well 
as  upon  the  property  recovered,  supe- 
rior to  all  other  liens  except  for  taxes. 
The  same  liens  are  allowed  defend- 
ant's attorneys  where  property  is 
sued  for  and  the  defense  is  success- 
ful. 

In  Montana.  R.  S.  1879,  p.  414,  Ch. 
3  §  54.  All  attorneys  have  a  lien 
upon  moneys  in  their  hands,  and 
upon  judgments  obtained  for  any 
client  for  any  fees  or  balance  of  fees 
due  or  to  become  due,  for  any  pro- 
fessional services  rendered  by  them 
in  any  court  or  courts  of  the  territory. 
Such  lien  is  deemed  to  attach  from 
the  commencement  of  the  action  or 
the  performance  of  such  services;  and 
extends  to  and  includes  reasonable 
fees  therefor.  Notice  of  the  lien 
claimed  upon  any  judgment  must  be 
filed  in  the  office  of  the  clerk  of  the 
court  in  which  the  judgment  is 
obtained,  or  with  the  probate  judge 
or  justice  of  the  peace  rendering 
judgment,  within  three  days  after 
final  judgment  shall  have  been 
entered;  and  it  is  the  duty  of  the 
clerk  of  the  court,  probate  judge,  or 
justice  of  the  peace,  with  whom  such 
notice  may  be  filed,  to  indorse  on 
such  notice  the  date  of  filing,  and  to 
file  the  same  with  the  papers  pertain- 
ing to  the  cause.  In  case  notice  of 
the  lien  be  not  filed  as  provided,  the 
lien  does  not  attach  to  such  judg- 
ment.    See  post,  §  869. 


723 


§  862.  THE   LAW   OF    AGENCY.  [Book  V. 

a.    Upon  Papers. 

An  attorney  has  a  general  lien  upon  all  the  papers,  deeds,  vouch- 
ers and  other  documents  of  his  client,  which  come  into  the  pos- 
session of  the  attorney  while  he  is  acting  for  his  client  in  a  pro- 
fessional capacity. '  But  in  order  to  the  creation  of  the  lien,  tlie 
papers  must  not  only  have  come  into  the  actual  possession  of  the 
attorney,  but  they  must  have  so  come  into  his  possession  in  his 
character  as  an  attorney  at  law. '  Thus  he  lias  no  lien  on  papers 
which  he  receives  as  jprochien  ami  of  an  infant,  *  or  as  a  mort- 
gagee *  or  trustee.  *  So  as  a  lien  does  not  attach  to  papers  which 
he  receives  for  a  special  purpose,  this  general  lien  will  not  attach,* 
unless  the  papers  are  voluntarily  left  in  his  possession  after  the 
special  purpose  has  been  accomplished.  ^  So  the  lien  does  not 
attach  to  public  records  as  to  papers  which  constitute  part  of  the 
files  of  a  case.  *  So  it  has  been  held  that  it  did  not  attach  to  his 
client's  will.  • 

Letters  written  to  the  attorney  by  his  client,  and  copies  of  the 
attorney's  replies  thereto,  contained  in  his  own  letter-books,  are 
the  attorney's  own  property,  and  the  client  cannot  insist  upon 
their  delivery  to  him  on  the  termination  of  the  relation.  " 

h.    Upon  Property. 
The  attorney's  lien  extends  to  articles  of  property  belonging 
to  the  client  which  come  into  the  attorney's  possession  while  act- 
ing in  a  professional  capacity,  as  upon  articles  which  are  deliv- 
ered to  him  to  be  used  as  evidence  in  the  cause." 

1  Hooper  v.  Welch,  43  Vt.   171,  6  B.   535;  St.  John  v.  Diefendorf,  12 

Am.  Rep.  267;  Bowling  Green  Sav-  Wend.  N.  Y.  261. 

inga    Bank  c.  Todd.    52    N.  Y.  489;  »  Montague  on  Lien,  59. 

Ward  «.  Craie;,   87  N.  Y.  550;  In  re  *  Pelly  v.  Wathen,  7  Hare's  Ch.  351. 

Knapp,    85   N.    Y   284;  Hurlburt  «.  •  ^xparie  Newland,  L.  R.  4  Ch.  D. 

Brigham,  56  Vt.    868;  Hutchinson  v.  615. 

Howard,  15  Vt.544;  Patrick  TJ.Hazen,  •  Balch  v.  Symes,  1  Turn.  &  R.  93; 

10  Vt.  183;  Casey  t).   March,  30  Tex.  Lawson  v.  Dickenson,  8  Mod.  306. 

180;  Wright  v.   Cobleigh,  21   N.  H.  T^xpar/ePemberton,18Ves.Jr.  282. 

839*;  McPherson  v.  Cox,  96  U.  S.  404;  •  Wright  v.  Cobleigh,  21  N.  H.  339; 

In  re  Wilson,  12  Fed.  Rep.235;  Weed  Clifford  v.  Turrill,  2  DeG.  &  Sm.  1. 

V.  Boutelle,  56  Vt.  570,  48  Am.  Rep.  "Balch  v.  Symes,  1  Turn.  &  R.  92. 

821;  Stevenson  v.    Blakelock,    1   M,  Georges  e.  Georges,  18  Ves.  Jr.  294 

&  S.  685;  Howell  r.  Harding,  8  East.  "  In  re  Wheatcrof  t,  6  Ch.  Div.  97, 

S62;  HoUis  V.  Claridge,  4  Taunt  807.  22  Eng.  Rep.  671. 

•  Stevenson  v.   Blakelock,  1  M.  &  "  Friswell  v.  King,  15  Sim.  191. 

724 


Chap.  Lj  ATTORNEYS    AT   LAW.  §  8G2. 

0.    Upon  Money. 

An  attorney  at  law  has  a  lien  also  upon  moneys  collected  by 
hira  for  the  client,  while  acting  in  a  professional  capacity. '  The 
lien  attaches  whether  the  money  be  voluntarily  paid  by  the  debtor, 
as  in  payment  or  compromise  of  a  demand  entrusted  to  the  attor- 
ney for  collection,  or  paid  or  collected  upon  a  judgment,*  or 
award,'  recovered  by  the  attorney.  This  general  or  retaining 
lien  does  not  attach  until  the  money  is  collected,*  and  is  not  to 
be  confounded  with  the  attorney's  special,  particular  or  charging 
lien  to  be  hereafter  noticed. 

The  result  of  this  lien  is  that  the  attorney  may  retain,  from  the 
fund  in  his  possession,  the  amount  for  which  his  lien  attaches,  and 
such  amount  may  be  set-off  against  the  client  in  an  action  brought 
by  him  against  the  attorney  to  recover  the  fund.  "Whether  the 
attorney's  claim  upon  the  fund  depends  strictly  upon  the  law  of 
lien  or  upon  that  of  set-off, '  is  a  question  upon  which  the  courts 
are  not  all  agreed,  although  agreeing  upon  the  result.  In  a  Penn- 
sylvania case  the  court  say  that  it  is  a  right  to  defalcate  rather 
than  a  right  of  lien.*  This  right  of  lien  does  not  depend  upon 
the  question  whether  there  was  an  express  agreement  as  to  the  fact 
that  compensation  was  to  be  paid,  or  as  to  its  amount.  It  applies 
to  a  claim  upon  a  quantum  meruit^  as  well  as  where  the  com- 
pensation was  agreed  upon.'  In  settling  with  his  client,  and 
paying  over  the  proceeds,  the  attorney  has  the  right  to  ask  for  a 
final  settlement,  and  to  insist  upon  a  receipt  for  the  amount 
paid.' 

And  the  attorney  may  not  only  retain  his  own  fees  and  charges, 
but  he  may  also  retain,  for  payment  to  them,  the  fees  and  charges 

1  J»r<5  Paschal,  10  Wall  (TJ.  S.)483;  •Wells  v.   Hatch,   43  N.  H.   246; 

Casey «.  March,  30  Tex.  180;  Kinsey  Bowling  Green  Sav.  Bank  v.  Todd, 

e.  Stewart,  14  Tex.  457;  Bowling  v.  52  N.  Y.  489. 

Eggemann,   47  Mich.  171 ;  Coolie  v.  '  Ormerod  v.  Tate,  1  East,  464. 

Thresher,    51    Conn.    105;    Diehl  v.  <  Casey  v.  March,  30  Tex,  180;  St. 

Friester,    37  Ohio  St.   473;  Read  v.  John   v.   Diefendorf,   12  Wend.  (N. 

Bostick,    6     Humph.     (Tenn.)    321;  T.)  261. 

Hurlbert   «.    Brigham,    56  Vt.   368;  «  See    Wells  v.   Hatch,   43  N.   H. 

Stewart    «.  Flowers,   44    Miss.   513;  246. 

Lewis©.  Kinealy,  2  Mo.  App.  33; /»  •  Strong,  J.,  in   Dubois'  Appeal, 

re  Knapp,  85  N.T.  284,  Dubois'  Ap-  38  Penn.  St.  231,  80  Am.  Dec.  478. 

peal,  38  Penn.  St.  231.  80  Am.  Dec.  •<  In  re  Knapp,  85  N.  Y.  284. 

478;  Weed  «.  Boutelle,   56  Vt.  570,  «  Dowling  v.  Eggemann,  47  Mich. 

48  Am.  Rep.  821.  171. 

725 


§  863.  THE    LAW    OF    AGENCY.  [Book  V. 

of  associate  attorneys  and  counsel  employed  in  the  same  case  by 
the  client,  or  by  the  attorney  with  the  client's  consent.' 

§  863.  What  Charges  the  Lien  secures.  No  little  conflict 
exists  in  the  decisions  as  to  the  charges  which  are  protected  by 
the  attorney's  general  lien.  Many  of  the  cases,  particularly  the 
earlier  ones,  confine  it  to  those  fees  and  charges  which  the  attor- 
ney is  authorized  to  tax  as  part  of  the  costs  in  the  cause,  and  deny 
it  as  to  the  general  balance  due  to  the  attorney  by  reason  of  the 
express  or  implied  agreements  between  himself  and  his  client.* 
The  strong  tendency  of  the  modern  cases,  however,  is  to  extend 
this  lien  for  the  protection  of  the  attorney's  general  balance  of 
account,  whether  the  costs  and  charges  be  those  incurred  in  the 
particular  cause  in  which  the  attorney  acquired  possession,  or  in 
other  professional  business  and  employment  in  other  causes.  And 
this  may  fairly  be  said  to  be  the  rule.' 

§  864r.  Against  what  Parties  Lien  prevails.  The  general  lien 
of  the  attorney  prevails  not  only  against  his  client,  but  also  against 
all  persons  who  claim  under  the  client.  It  is,  therefore,  valid 
against  the  client's  assignment  in  bankruptcy  or  for  the  benefit 
of  creditors,*  and  against  sales,  transfers  or  assignments  by  the 
client  generally.*  It  prevails  also  against  attachment  or  garnish- 
ment by  the  client's  creditors.*  In  all  of  these  cases,  the  possess- 
ion by  the  attorney  of  the  thing  to  which  the  lien  attaches  is 
notice  of  his  rights,^  and  parties  claiming  through  or  under  the 
client  take  only  the  client's  claim  subject  to  the  attorney's  lien. 
Neither  the  client  nor  his  assignees  can  recover  the  subject-mat- 
ter of  the  lien  without  first  paying  to  the  attorney,  or  permitting 
him  to  retain,  the  general  balance  due  him  from  the  client.' 

•Jackson  «,  Clopton,   66  Ala.  29;  *  Ex  parte   Bush,  7  Vin.  Abr.    74; 

Balsbaugh    v.  Frazer,    19   Penn.    St.  Ex  parte  Sterling,   16  Ves.    Jr.    258, 

95;  Christy  B.Douglass, Wright  (Ohio)  Ward  v.  Craig,  87  N.  Y.  550. 

485.  *  Weed  ».  Boutelle,  56  Vt.   570,  48 

2  See  Waters  v.  Grace,  23  Ark.  118;  Am.  Rep.  821. 

McDonald  v.  Napier,  14  Ga.  89.  •  Weed  v.   Boutelle,     supra;  Ran- 

«  Hurlbert  t.  Brigham,  56  Vt.  368;  dolph  v.  Randolph,  34  Tex.  181. 

Cooke    V.    Thresher,  51    Conn.  105;  'Hutchinson    v.    Howard,    15   Vt, 

Hooper  v.  Welch,  43  Vt.  171,  5  Am.  544;  Weed  v.  Boutelle,  supra. 

Rep.    267;    Bowling    Green    Savings  »  Weed  v.  Boutelle,  supra.  Ex  parte 

Bank  v.  Todd,  52  N.  Y.  489 ;  In  re  Sterling,    supra.    In  re  Wilson,    13 

Paschal,  10  WaU,  (U.  S.)  483,  Weed  Fed  Rep.  235. 
V.  Boutelle,  56  Vt.670,  48  Am.Rep.821. 

726 


Chap.  I.]  ATTORNEYS   AT   LAW.  §  867. 

So,  as  against  the  client  or  his  creditor,  the  attorney  may  retain 
the  entire  stipulated  price  for  services  then  in  progress  of  per- 
formance, although  not  fully  performed,  if  he  in  good  faith 
intends  to  complete  the  performance.' 

§  865.  How  Lien  may  be  lost.  As  the  general  or  retaining 
lien  of  the  attorney  depends  wholly  upon  possession,  it  necessar- 
ily follows  that  the  lien  will  be  lost  if  the  possession  be  voluntar- 
ily surrendered.'  It  is  not  lost,  however,  if  the  possession  be 
wrongfully  or  fraudulently  obtained  from  him,  and  he  may 
recover  possession  by  a  proper  action.' 

The  lien  is  also  incapable  of  being  transferred  to  another, 
and  such  a  transfer  destroys  it.*  But  personal  possession  by  the 
attorney  himself  is  not  indispensable ;  possession  by  his  servant 
or  agent,  which  is  in  law  his  possession,  is  suflBcient. 

§  866.  How  Lien  may  be  waived.  The  attorney  may,  of 
course,  voluntarily  waive  his  lien  if  he  sees  fit,  and  such  a  waiver 
may  be  presumed  from  conduct  on  his  part  which  is  inconsistent 
with  an  intention  to  claim  a  lien.  Thus  if  he  takes  security  for 
the  demand,'  or  agrees  to  give  credit  for  a  particular  time,*  or 
takes  the  note  of  the  client  or  a  third  person  in  payment,^  the 
lien  would  be  waived,  but  the  mere  taking  of  the  client's  own 
note  for  the  amount  would  not  be  deemed  a  waiver,  unless  it  was 
taken  as  payment.' 

§  867.  Enforcement  of  Lien.  The  general  or  retaining  lien  of 
the  attorney  upon  his  client's  papers  or  property  can  not  be 
enforced  in  the  absence  of  a  statute  by  any  proceedings,  either  at 
law  or  in  equity,  to  procure  payment  of  the  debt  out  of  the  arti- 
cles so  held.*     The  articles  can  not  be  sold  nor  applied  to  the 

*  Randolph  v.  Randolph,  84  Tex.  »  Cowell  v.  Simpson,  16  Ves.  Jr. 
181.                                                             275;  Balch  «.   Symes,  IT.  &  R.  87; 

s  Dubois'  Appeal,  38  Penn.  St.  231,  Watson  v.    Lyon,  7  DeG,  M.  &  G. 

80  Am.  Dec.  478;  Nichols  v.  Pool,  89  288. 

Ill,  491;  In  re  Wilson,   12  Fed.  Rep.  «  See    Stoddard.  &c,    Mnfg  Co.  v. 

285;  See  Tucker  B.Taylor,  53  Ind.  93;  Huntley,  8  N.  H.  441,  81   Am.    Dec. 

Nevan  «.  Roup,  8  Iowa,   207;  Oakes  198. 

t).  Moore,  24  Me.  214:41  Am.  Dec.  379.  t  Cowell  t>.    Simpson,  16  Ves.  Jr. 

8  Dicas  V.  Stockley,  7  C.  «fe  P.  587.  275. 

*  In  re  Wilson,  12  Fed.  Rep.  235.  8  Dennett  v.  Cutts,  11  N.  H.  163: 
See  Lovett  v.  Brown,  40  N.  H.  511;  Stevenson  v.  Blakelock,  1  M.  &  S 
Meany  t.  Head,  1  Mason  (U.  S.  C.  C.)  535. 

819.  » In  re  Wilson,   12  Fed  Rep.  235, 

727 


ff  S6S.  THE   LAW   OF    AGENCY.  [Book  V. 

attorney's  own  use,  by  virtue  of  the  lien,  but  can  only  be  held 
until  the  debt  be  paid.'  But  the  lien  endures  until  the  debt  is 
paid,  and  is  not  defeated  by  the  fact  that  the  statute  of  limitations 
may  have  run  against  the  debt.' 

2.  The  Special  or  Charging  Lien. 

§  868.  General  Natixre  of  this  Lien.  The  second  kind  of  lien 
which  an  attorney  has  is  that  existing  upon  a  judgment  obtained 
by  him,  or  moneys  payable  thereon,  or  some  fund  in  court  pro- 
duced therefrom.  Unlike  the  general  or  retaining  lien,  this  is 
not  a  mere  passive  right  of  retaiuer  of  papers  or  moneys  reduced 
to  possession,  for  the  attorney  can  have  no  possession  of  the 
judgment  or  of  the  moneys  payable  thereon,  or  of  the  fund  in 
court ;  but  it  is  rather  an  active  right,  enabling  the  attorney  to 
take  active  steps  to  charge  the  judgment  or  fund  with  his  claim, 
and  to  secure  the  aid  of  the  court  in  his  protection.' 

This  lien  did  did  not  exist  at  common  law  and  is  said  not  to 
be  of  very  ancient  origin.*  It  had  its  source  in  the  desire  of  the 
court,  based  upon  principles  of  equity  and  justice,  to  protect  the 
attorney,  by  whose  efforts,  and,  in  many  instances,  by  whose 
expense,  the  judgment  or  fund  had  been  recovered.* 

This  lien  will  be  seen  to  be  radically  different  in  its  nature 
from  the  general  or  retaining  lien,  from  which  it  should  be  care- 
fully distinguished. 

§  869.  In  what  States  it  exists.  This  charging  lien  of  the 
attorney  has  been  adopted  by  statute,  or  enforced  by  the  courts, 
in  some  form,  in  a  majority  of  the  United  States,  although  it 

26  Alb.  L.  Jour,  271;  Terrell  v.  The  Turwin  v.  Gibson,  3  Atk.  720;  Read 

B.  F.  Woolsey,    4    Fed.    Rep.   552;  v.  Dupper,  6  T.  R.  361. 

Brown  v.  Bigley,  3  Tenn.   Ch.    618;  In  re  Wilson,    12  Fed    Rep.  235; 

Thames  Iron  Works,  v.  Patent  Der-  Weed  v.  Boutelle,  56  Vt.  570,  48  Am. 

rick  Co.,  1  John.  &  H.  93;  Bozon  ».  Rep.  821. 

Holland,  4  Myl.  &  C.  354;  Heslop  v.  *  In  re  Wilson,  supra.    Wilkins  v. 

Metcalfe,  3  Id.  183.  Carmichael,  mpra. 

I  In  re  Wilson,  and  cases,  supra.  »  "  The  party  "  said  Lord  Kenton, 

»  In  re  Murray,  3  W.N.  (1867)  190;  "  should  not  run  away  with  the  fruits 

Higgins  «.  Scott,  2  B.  &  Ad.  413.  of  the  cause  without  satisfying  the 

8  Wilkins  v.  Carmichael,  1  Doug.  legal    demands  of    his    attorney,  by 

104;  Welsh  v.  Hole,  Id.  238;  Schools  whose    industry,   and    in    many  in- 

V.  Noble,  1  H.  Bl.  23;  Barker  v.  St.  stances,  at  whose  expense,  those  fruits 

Quintin,'l2  Mees.  &  Wels.  441;    Bo-  are  obtained. "    In  Read  ».   Dupper, 

zon  V.  BoUand,   4   Myl.    &  C.   354;  6  T.  R.  361. 

728 


Chap.  I.] 


ATTORNEYS    AT    LAW. 


§  809. 


does  not  exist  in  all  of  them.  These  statutes  are  by  no  means 
uniform,  nor  are  the  decisions  harmonious.  Much  confusion  has 
arisen  from  a  failure  to  discriminate  between  this  lien  and  the 
retaining  lien,  and  the  variety  of  statutes  and  rules  of  practice, 
fixing  the  compensation  of  attorneys  or  leaving  it  to  the  parties 
to  fix  it  for  themselves,  has  increased  the  confusion. 

It  is  not  possible,  within  the  limits  of  this  work,  to  give  a  full 
or  satisfactory  exposition  of  the  rules  which  prevail  in  each 
State,  but  a  reference  will  be  found  in  the  note  to  tbe  cases  op 
statutes  of  the  respective  States  which  throw  light  upon  it.' 

'In  Alabama  attorney  has  a  lien      III.  268;  Nichols  «.  Pool,  89111.  491; 

La  Framboise  v.  Grow,  56  111.  197; 
Smith  B.  Young,  62  111.  210. 

In  Indiana  attorney  may  secure 
lien  by  entering  claim  upon  docket  at 
time  of  rendition  of  judgment.  Rev. 
Stats.  1881,  §  5276.  See  Putnam  «. 
Tennyson,  50  Ind.  456. 

In  Iowa  attorney  has  lien  for  which 
see  note  to  §  861,  ante.  See  Smith  v. 
Railroad  Co.,  56  Iowa  720;  Phillips  «. 
Germon,  43  Iowa  101;  Myers  v.  Mc- 
Hugh,  16  Iowa  335;  Fisher©.  Oska- 
loosa,  28  Iowa  381;  Brainard  ».  El- 
wood,  53  Iowa  30. 

In  Kansas  attorney  has  a  lien  sub- 
stantially as  in  Iowa,  supra.  See 
Kansas  Pac.  Ry  Co.  «.  Thacher,  17 
Kans.  92. 

In  Kentucky  attorneys  have  a  lien 
by  statute  for  which  see  note  to  §861, 
supra.  See  Wood  v.  Anders,  5  Bush 
601;  Wilson  v.  House,  10  Bush  406; 
Stephens  v.  Farrar,  4  Bush  13;  Rob- 
ertson V.  Shutt,  9  Bush  659. 

In  Louisiana  attorneys  have  a  lien 
by  statute  Rev.  Laws,  1884,  §  2897. 

In  Maine  attorney  has  a  lien  upon 
judgment  by  statute.  See  Hobson  v. 
Watson,  34  Me.  20,  56  Am.  Dec.  633; 
Potter  V.  Mayo,  3  Greenl.  34,  14  Am. 
Dec.  211;  Newbert  v.  Cunningham, 
60  Me.  231,  79  Am.  Dec.  612;  Averill 
V.  Longfellow,  66  Me.  238;  Stratton  v. 
Hussey,  62  Me.  286. 

In  Maryland  there  seems  to  be  no 


on  judgment  for  his  reasonable  fees. 
Jackson  v.  Clopton,  66  Ala.  29 
Moseley  v.  Norman,  74  Ala.  422 
Warfield  t>.  Campbell,  38  Ala,  527 
Central  R.  R.  Co.  e.  Pettus,  113  U. 
S.  116. 

In  Arkansas  attorney  has  lien  by 
statute  upon  judgment  and  property 
recovered  for  his  reasonable  fees. 
Gantt's  Stats.  §§  3622,  3626.  See 
Lane  v.  Hallum,  38  Ark.  385;  Gist  v. 
Hanly,  33  Ark.  233;  McCain  v.  Por- 
tis,42  Ark.  402;  Porter  «.  Hanson,  36 
Ark.  591. 

In  Connecticut  attorney  has  a  lien 
upon  judgment.  Andrews  v.  Morse, 
12  Conn.  444,  31  Am.  Dec.  752; 
Gagert).  Watson,  11  Conn.  168;  Ben- 
jamin V.  Benjamin,  17  Conn.  110. 

In  California  there  seems  to  be 
none.  Ex  parte,  Kyle,  1  Cal.  331; 
Mansfield  v.  Dorland,  2  Cal.  507;  Rus- 
sell V.  Conway,  11  Cal.  93. 

In  Florida  attorney  has  a  lien  upon 
a  judgment  obtained  by  him  for  his 
reasonable  compensation.  Carter  v. 
Bennett,  6  Fla.  214;  Carter  v.  Davis, 
8Fla.  183. 

In  Georgia  attorneys  have  a  lien  on 
judgment  and  property.  See  ante 
§  861,  note.  See  Jones  v.  Morgan,  39 
Ga.  310,  99  Am.  Dec.  458;  Twiggs  v. 
Chambers,  56  Ga.  279. 

In  Illinois  attorney  has  no  lien  on 
judgment.    Forsythe  v.  Beveridge,  52 


729 


§870. 


THE   LAW   OF   AGENOT. 


[Book  Y. 


8  870.  What  this  Lien  protects.  This  Hen  being  conferred 
in  consideration  of  the  services  and  expenses  of  the  attorney  in 
producing  or  securing  the  judgment  or  fund  to  which  it  applies, 
it  protects  only  those  costs  and  expenses  which  were  incurred  in 


lien.    See  Marshall  v.  Cooper,  43  Md. 
46. 

la  Massachusetts  attorney  has  a 
lien  upon  the  judgment  for  the 
amount  of  his  taxable  costs,  fees  and 
disbursements,  if  notice  is  given  of 
his  claim,  P.  S.  1882,  p.  913;  Baker 
V.  Cook,  11  Mass.  236;  Dunklee  v. 
Locke,  13  Mass.  525;  Ocean  Ins.  Co. 
«.  Rider,  22  Pick.  210;  Thayer  v. 
Daniels,  113  Mass.  129;  Simmons  v. 
Almy,  103  Mass.  33. 

In  Michigan  an  attorney  has  a  lien 
for  his  agreed  compensation  upon  the 
judgment.  Wells  «.  Elsam,  40  Mich. 
218;  Taylor  t).  Young,  56  Mich.  285; 
Kinney  c.  Robinson,  —  Mich.— 29  N. 
W.  Rep.  86. 

In  Minnesota  attorney  has  a  lien  by 
statute  for  which  see  note  to  §  861, 
supra.  See  Dodd  v.  Brott,  1  Minn. 
270,  66  Am.  Dec.  541;  Forbush  «. 
Leonard,  8  Minn.  303;  Crowley  «. 
LeDuc,  21  Minn.  412. 

In  Missouri  attorneys  seem  to  have 
no  lien  on  judgment.  Frissell  «. 
Haile.  18  Mo.  18;  Lewis  «.  Kinealy,  3 
Mo.  App.  33. 

lu  Mississippi  an  attorney  has  a 
lien  on  the  judgment.  Stewart  v. 
Flowers,  44  Miss.  513;  Pope  v.  Arm- 
strong, 3  Sm.  &  Mar.  214,  but  not  on 
land  recovered.  Martin  v.  Harring- 
ton. 57  Miss.  208. 

In  Montana  attorneys  have  lien  by 
statute  for  which  see  note  to  §  861, 
supra. 

In  Nebraska  attorneys  have  lien  by 
statute  for  which  see  note  to  §  861, 
supra.  See  Patrick  v.  Leach,  12  Fed. 
Rep.  661. 

In  Nevada  this  lien  does  not  seem 
to  have  been  passed  upon. 


In  New  Hampshire  the  attorney 
has  a  lien  for  the  amount  of  his  tax- 
able fees  and  disbursements.  "Wells 
«.  Hatch,  43  N.  H.  246;  Young  r>. 
Dearborn,  27  N.  H.  324. 

In  New  Jersey  an  attorney  has  a 
lien  upon  the  judgment  for  his  fees 
and  disbursements  after  notice. 
Btaden  v.  Ward,  42  N.  J.  L.  518; 
Heister??.  Mount,  17  N.  J.  L.  438; 
Barnes  v.  Taylor,  30  N.  J.  Eq. 
467. 

In  New  York  from  the  commence- 
ment of  an  action  or  the  service  of 
an  answer  of  counter  claim,  the  attor- 
ney has  a  lien  for  his  agreed  or  rea- 
sonable compensation  upon  client's 
cause  of  action  or  counter  claim, 
which  attaches  to  the  judgment  and 
its  proceeds  and  cannot  be  affected  by 
a  settlement  between  the  parties. 
Code  Civ.  Proc.  1879,  §  66.  See  In 
re  Knapp,  85  N.  Y.  284;  Wright  v. 
Wright,  70  N.  Y.  96;  Zogbaum  ». 
Parker,  55  N.  Y.  120;  Marshall  v. 
Meech,  51  N.  Y.  143;  Coughlin  «. 
New  York  Cent.  R.  R.  Co.,  71  N.  Y. 
444;  Rooney  v.  Second  Ave.  R.  R 
Co.,  18  N.  Y.  368. 

In  Oregon  the  statute  is  the  same  as 
in  Minnesota,  for  which  see  note  to 
§  861,  supra. 

In  North  Carolina  lien  does  not 
appear  to  have  been  passed  upon. 

In  Ohio  Hen  on  judgment  does  not 
exist.  Diehl  v.  Friester,  37  Ohio  St. 
473. 

In  Pennsylvania  the  lien  does  not 
appear  to  exist. 

In  Rhode  Island  attorney  has  a  lien 
for  his  costs.  Horton  v.  Champlia, 
12  R.  I.  550,  34  Am.  Rep.  722. 

In  South  Carolina  an  attorney  ha&& 


730 


Chap.  1.] 


ATT0KNEY8    AT   LAW. 


§870. 


the  particular  suit  in  which  the  judgment  or  fund  was  recovered, 
and  does  not  secure  the  attorney's  general  balance  of  account,  nor 
fees  earned  or  expenses  incurred  in  other  suits.' 

Originallj  this  lien  applied  only  to  such  costs  and  charges  of 
the  attorney  as  were  legally  taxable  as  part  of  the  costs  in  the 
cause,  and  did  not  operate  to  secure  to  the  attorney  the  payment 
of  his  reasonable  or  agreed  charges  and  disbursements  in  the 
suit,  and  this  rule  still  applies  in  several  States.*  When  this 
rule  had  its  origin,  however,  the  costs  and  charges  taxable,  were 
the  costs  and  charges  as  between  the  attorney  and  his  client,  and 
constituted  the  measure  of  his  compensation  and  reimbursement, 
while  the  costs  taxable  under  modern  statutes  are,  as  a  rule,  costs 
as  between  party  and  party,  and  belong  to  the  prevailing  party, 
and  do  not  determine  or  constitute  the  measure  of  the  latter^s 
liability  to  his  attorney.* 

In  view  of  this  distinction,  the  tendency  of  modern  cases  has 
been  to  extend  the  charging  line  so  as  to  cover  and  protect  the 


lien  for  his  taxable  costs.  Scharlock 
«.  Oland,  1  Rich.  207. 

In  Tennessee  an  attorney  has  alien 
upon  the  judgment  and  the  property 
recovered.  See  Hunt  t».  McClanahan, 
1  Heisk.  503;  Brown  v.  Bigley,  3 
Tean.  Ch.  618;  Garner  v.  Garner,  1 
Lea,  29;  Winchetter  v.  Heiskell,  16 
Lea,  556;  Pierce©.  Lawrence,  16  Lea 
572. 

In  Texas  an  attorney  has  no  lien 
upon  the  judgment.  Casey  c.  March. 
30  Tex.  180. 

In  Vermont  an  attorney  has  a  lien 
for  his  reasonable  fees  and  disburse- 
ments. Weed  V.  Boutelle,  56  Vt. 
570,  48  Am.  Rep.  821. 

In  Virginia  attorneys  have  a  lien  by 
statute  for  their  agreed  compensation. 
Code  1873,  Ch.  160,  §  11. 

In  West  Virginia  attorney  has  the 
same  lien  as  in  Virginia.  Code  1868, 
Ch.  119,  §  11.  See  Renick  v.  Lud- 
ington,  16  W.  Va.  379. 

In  Wisconsin  attorney  has  a  lien 
only  on  clear  balance  of  judgment 
after  all  equities  between  the  parties 
to  the  action  have  been  settled.    Bos- 


worth  V.  Tallman,  66  Wis.  22;  Torton 
V.  Milwaukee,  &c.  Ry  Co.,  62  Wis. 
867. 

In  Wyoming  an  attorney  has  a  lien 
by  statute,  for  which  see  note,  §  861, 
$upra. 

*  Stephens  v.  Weston.  3  B.  &  0. 
538;  Hodkinson  «.  Kelly,  1  Hogan, 
388;  Hall  v.  Laver,  1  Hare,  571;  Lucas 
«.  Peacock,  9  Beav.  177. 

In  re  Wilson,  12  Fed.  Rep.  235; 
Phillips  V.  Stagg,  2  Edw.  (N.  Y.)  Ch. 
108;  St.  John®.  Diefendorf,  12  Wend. 
261 ;  Pope  v.  Armstrong,  3  Smed.  & 
M.  (Miss.)  214;  Weed  v.  Boutelle,  56 
Vt.  570,  48  Am.  Rep.  821;  Williams?). 
Ingersoll,  89  N.  Y.  508;  Wriirht  v. 
Cobleigh,  21  K  H.  341;  Mc Williams 
V.  Jenkins,  72  Ala.  480;  Forbush  v. 
Leonard,  8  Minn.  303;  Mosely  ». 
Norman,  74  Ala.  422;  Jackson  v, 
Clopton,  66  Ala.  29.  Ex  parte  Leh- 
man, 59  Ala.  631. 

*Ex  parte  Kyle,  1  Cal.  331;  Mans- 
field V.  Borland,  2  Cal.  507;  Russell  c 
Conway,  11  Cal.  103. 

•  See  Weed  ©.  Boutelle,  supra. 


731 


§871. 


THE    LAW    OF   AGENCY. 


[Book  Y. 


amount  due  from  the  client  to  the  attorney  for  his  services  and 
disbursements  in  the  suit,  whether  that  amount  be  fixed  by  agree- 
ment between  the  parties  or  be  determined  by  the  quantum 
meruit^  and  such  is  now  the  prevailing  doctrine.'  The  modern 
statutes,  also,  as  a  rule,  give  this  protection. 

§  871.  When  Lien  attaches.  In  the  absence  of  a  statute  creat- 
ing it,  the  attorney  has  no  charging  lien  upon  his  client's  cause 
of  action.  His  right  of  lien  arises  from  the  fact,  that  his  efforts 
and  disbursements  have  led  to  the  recovery  of  a  judgment,  and 
it  is  upon  that  judgment  that  his  lien  is  to  take  effect.  The  rule 
is,  therefore,  well  settled  that,  in  the  absence  of  a  statute  giving 
it  earlier  effect,  the  lien  does  not  attach  until  the  entry  of  the 
judgment  in  favor  of  his  client,  and  that  the  mere  rendition  of  a 
verdict  is  not  enough.* 

Prior  to  the  entry  of  the  judgment,  therefore,  the  opposite 
party  may,  except  where  some  statute  gives  the  attorney  protec- 
tion, settle  the  clause  with  the  client  without  reference  to  the 
attorney  or  liability  for  his  fees,'  and  this  is  true  although  the 


>  Warfleld  «.  Campbell,  38  Ala. 
637;  McDonald  e.  Napier,  14  Ga.  89; 
Carter  v.  Davis,  8  Fla.  183 ;  Carter  v. 
Bennett,  6  Fla.  214;  Pope  v.  Arm- 
strong, 5  8.  «&  M.  (Miss.)  214; 
Henchey  «.  Chicago,  41  111.  136; 
Humphrey  «.  Browning,  46  111.  476; 
Hill  t.  Brinckley,  10  Ind.  102;  An- 
drews «.  Morse.  13  Conn.  444;  Jack- 
son V.  Clopton,  66  Ala.  29;  Mosely 
V.  Norman,  74  Ala.  422;  Lehman,  Ex 
parte,  59  Ala.  631 ;  Kinney  «.  Robin- 
eon,  —  Mich.  — ,  29  N.  W.  Rep.  86; 
Wells  v.  Elsam,  40  Mich.  218. 

*  Coughlin  V.  New  York  Central 
R.  R  Co.,  71  N.  T.  443,  27  Am.  Rep. 
75;  Kusterer  v.  City  of  Beaver  Dam, 
56  Wis.  471,  43  Am.  Rep.  725;  La- 
ment V.  Washington,  &c.  R.  R.  Co., 
2  Mackey  (D.  C.)  502.  47  Am.  Rep. 
268;  Courtney  v.  McGavock,  23  Wis. 
622;  Pulver  «.  Harris,  62  Barb.  500, 
affirmed,  52  N.  Y.  73;  Getchell  v. 
Clark,  5  Mass.  309;  Hobson  c.  Wat- 
son, 34  Me.  20;  Foot  v.  Tewksbury,  2 
Vt.  97;  Henchey  v.  City  of  Chicago, 


41  111.  136;  Mosely  v.  Norman,  74 
Ala.  422;  Jackson  t>.  Clopton,  66  Ala. 
29;  Ex  parte,  Lehman,  59  Ala.  631; 
Warfield  v.  Campbell.  38  Ala.  527, 82 
Am.  Dec.  724;  Rooney  v.  Second 
Ave.  R.  R.  Co.,  13  N.  Y.  368;  Mar- 
shall e.  Meech,  51  N.  Y.  140,  10  Am. 
Rep.  572;  Shank  v.  Shoemaker,  18  N. 
Y.  489;  Walker  v.  Sargeant,  14  Vt. 
247;  Hutchinson  v.  Howard,  15  Vt. 
544;  Hooper  t).  Welch,  43  Vt.  169,  5 
Am.  Rep.  267;  Weed  v.  Boutelle,  56 
N.  H.  570,  48  Am.  Rep^  821;  Wells  «. 
Hatch,  43  N.  H  246;  Young  ».  Dear- 
born, 27  N.  H.  324;  Brown  v.  Bigley, 
3Tenn.  Ch.  618;  Potter  v.  Mayo,  3 
Me.  34;  Gammon  v.  Chandler,  30  Me. 
152;  Hobson  v.  Watson,  34  Me.  20.  56 
Am.  Dec.  6.32;  Averill  v.  Longfellow, 
66  Me.  237;  Newbert  v.  Cunningham, 
50  Me.  231,  79  Am.  Dec.  612. 

9  See  cases  cited  in  the  precerling 
note.  There  are  some  English  cases 
in  which  it  is  held  that  a  settlement 
before  judgment  will  not  defeat  the 
attorney's  lien  for  his  costs  and  that 


732 


Chap.  L] 


ATTORNEYS    AT    LAW. 


§872. 


opposite  party  knew  that  the  attorney  was  employed  for  a  com- 
pensation contingent  upon  the  result.* 

§  872.  To  what  Lien  attaches.  The  lien  of  the  attorney 
attaches  to  the  judgment  or  decree  only,  and  does  not,  in  the 
absence  of  a  statute  to  that  effect,  extend  to  the  property  of  his 
client  which  was  the  subject-matter  of  the  controversy,'  nor  does 


he  may  prosecute  the  action  for  the 
recovery  of  his  costs,  notwithstand- 
ing the  settlement.  See  Swain  ». 
Senate,  5  Bos.  &  Pul.  99;  Cole  v.  Ben- 
nett, 6  Price,  15 ;  Morse  v.  Cooke,  13 
Price  473.  The  English  cases,  how- 
ever, stand  upon  peculiar  ground  as 
the  attorney's  costs  and  charges,  as 
against  his  client,  are  subject  of  taxa- 
tion. Some  cases  iu  the  United 
States  have  followed  these  English 
cases,  as  Talcott  v.  Bronsou,  4  Paige 
(N.  T.)  501;  Rasquin  v.  Knicker- 
bocker Stage  Co.,  12  Abb.  Pr.  324,  8. 
c.  21  How.  Pr.  (N.  Y.)  293;  Dietz  ». 
McCallum,  44  How.  Pr.  (N.  Y.)  493; 
Howard  v.  Osceola,  22  Wis.  453.  In 
certain  cases,  this  rule  has  been 
adhered  to  where  the  opposite  party 
had  been  given  notice  of  the  attor- 
ney's claim,  as  in  Owen  v.  Mason,  18 
How.  Pr.  (N.  Y.)  156;  Jones  v.  Mor- 
gan, 39  Ga.  310,  But  in  nearly,  if  not 
quite,  all  of  these  cases,  the  costs 
which  were  protected  were  those  only 
which  were  legally  taxable. 

This  rule  has  not,  however,  been 
generally  followed,  and  it  can  not  be 
sustained  upon  principle.  Earl,  J., 
of  the  New  York  Court  of  Appeals, 
says  of  it:  "It  is  impossible  to 
ascertain  when  this  practice  com- 
menced, or  how  it  originated  or  upon 
what  principle  it  was  based.  It  was 
not  upon  the  principle  of  a  lien,  be- 
cause an  attorney  has  no  lien  upon 
the  cause  of  action,  before  judgment, 
for  his  costs;  nor  was  it  upon  the  prin- 
ciple that  his  services  had  produced 
the  money  paid  his  client  upon  the 
settlement,  because  that  could  not  be 


known,  and,  in  fact,  no  money  may 
have  been  paid  upon  the  settlement. 
So  far  as  I  can  perceive,  it  was  based 
upon  no  principle.  It  was  a  mere 
arbitrary  exercise  of  power  by  the 
courts;  not  arbitrary  in  the  sense  that 
it  was  unjust  or  improper,  but  in  the 
sense  that  it  was  not  based  upon  any 
right  or  principle  recognized  in  other 
cases.  The  parties  being  in  court 
and  the  suit  commenced  and  pending, 
for  the  purpose  of  protecting  attor- 
neys who  were  their  officers  and  sub- 
ject to  their  control,  the  courts  in- 
vented this  practice  and  assumed  this 
extraordinary  power  to  defeat 
attempts  to  cheat  the  attorneys  out 
of  their  costs.  The  attorneys'  fees 
were  fixed  and  definite  sums,  easily 
determined  by  taxation,  and  this 
power  was  exercised  to  secure  them 
their  fees."  In  Coughlin  v.  New 
York  Central  R.  R.  Co.,  71  N.  Y.  443, 
27  Am.  Rep.  75.  See  also  Lamont  v. 
Washington,  &c.  R.  R.  Co.,  2  Mackey 
(D  C.)  502,  47  Am.  Rep.  268,  where 
the  question  is  fully  considered.  See 
also  Parker  o,  Blighton,  33  Mich.  266; 
Wright  V.  Hake,  38  Mich.  525.  In 
Wisconsin  it  is  held  that  where  the 
action  is  upon  a  written  instrument 
in  the  attorney's  possession,  the  lien 
attaches  before  judgment,  Courtney 
V.  McGavock,  23  Wis.  622. 

»  Coughlin  «.  New  York  Central 
R.  R.  Co.,  supra;  Kusterer  v.  City  of 
Beaver  Dam,  56  Wis.  471,  43  Ain. 
Rep.  725. 

»  Mo  Williams  «.  Jenkins,  72  Ala. 
480. 


733 


§873. 


THE    LAW    OF    AGENCY, 


[Book  V. 


it  attach  to  land  which  was   recovered,  or  the  title  to  which  was 
established,  by  the  judgment  or  decree.' 

S  873.  How  lien  protected.  The  lien  of  the  attorney  will  be 
protected  against  all  collusive  dealings  between  the  client  and 
the  party  against  whom  the  judgment  or  degree  is  rendered,  but 
the  lien,  except  where  enlarged  by  statute,  is  generally  held  to 
be  coextensive  with  the  rights  of  the  client  only,  and  is  subject 
to,  and  may  be  defeated  by,  the  judgment  debtor's  right  to  set- 
off, against  the  client,  debts  or  demands  which  existed  and  were 
matters  of  set-off  when  the  judgment  or  decree  was  rendered.* 
It  is,  however,  superior  to  a  set-off  acquired  afterwards.'  Where 
the  judgment  is  for  costs  only,  it  has  been  said  to  be,  of  itself, 
notice  to  all  the  world  of  the  attorney's  lien  thereon,  and  the 
opposite  party  pays  the  judgment  to  the  client  at  his  peril.* 
Where,  however,  the  judgment  or  decree  is  for  damages  and 
costs,  it  is  generally  held  that  it  is  not  such  notice,  but  that  the 
attorney,  who  would  preserve  his  lien  as  against  a  settlement  by 
the  opposite  party  with  the  client,  must  give  the  opposite  party 
notice  of  his  intention  to  insist  upon  the  lien.*     The  statutes  in 


•McCullough  V.  Flournoy,  69  Ala. 
189;  Martin  v.  Harrington,  57  Miss. 
208;  Hinson  v.  Gamble,  65  Ala.  605; 
Hanger  v.  Fowler,  20  Ark.  667;  Coz- 
zens  V.  Whitney,  3  R.  I.  79;  Smalley 
V.  Clark,  22  Vt.  598;  Humphrey  v. 
Browning,  46  111.  476,  95  Am.  Dec. 
446. 

Contra,  in  Tennessee,  Hunt  v.  Mc- 
Clanahan,  1  Heisk.  503;  Brown  v. 
Bigley,  3  Tenn.  Ch.  618;  Pierce  t). 
Lawrence,  16  Lea  572 ;  Winchester  v. 
Heiskell.  Id.  556. 

9  Mosely  ®.  Norman,  74  Ala.  422; 
Jackson  v.  Clopton,  66  Ala.  29;  Bx 
parte  Lehman,  59  Ala.  681;  McDon- 
alds Smith,  57  Vt.  502;  Winterset 
Bank  v.  Eyre,  3  McCrary  (TJ.  S.  C.  C.) 
175,8  Fed.  Rep.  733 ;  Keith  tJ.Fitzhugh, 
15  Lea.  (Tenn.)  49;  Mohawk  Bank  v. 
Burrows,  6  Johns.  (K  T.)  Ch.  317; 
Porter  v.  Lane,  8  Johns.  (N.  Y.)  357; 
NicoU  V.  Nicoll,  16  Wend.  (N.  Y.) 
446;  Hurst  v.  Sheets,  21  Iowa,  501; 


Wright  V.  Treadwell,  14  Tex.  256, 
Gager®.  Watson,  11  Conn.  168;  Bos- 
worth  V.  Tallman,  66  Wis,  22,  29  N. 
W.  Rep.  542;  Justice  v.  Justice,  — 
Ind.  — ,  14  West.  Rep.  275. 

Contra,  Puett  v.  Beard,  86  Ind.  172, 
44  Am.  Rep.  280;  Currier  v.  Railroad 
Co.,  37  N.  H.  223. 

8  Warfield©.  Campbell,  38  Ala.  527. 
82  Am.  Dec.  724;  Caudle  v.  Rice,  — 
Ga.  —  3  S.  E.  Rep.  7;  Boyle  v.  Boyle, 
106  N,  Y.  654,  12  North  E.  Rep.  709; 
Pierce  v.  Lawrence,  16  Lea  (Tenn.) 
572. 

*  McGregor  v.  Comstock,  28  N.  Y. 
237;  Marshall  v.  Meech,  51  N.  Y. 
140,  10  Am.  Rep.  572;  Haight  v.  Hol- 
comb,  16  How.  (N.  Y.)  Pr,  173. 

6  Marshall  v.  Meech,  sujyra;  Hurst 
V.  Sheets.  21  Iowa,  501;  Dodd  v. 
Brott,  1  Minn.  270,  66  Am.  Dec.  541 ; 
Welsh  V.  Hole,  1  Doug.  238;  Read  v. 
Dupper,  6  T,  R.  361. 

Notice  not  required  in  Maine  under 


734 


Chap.  I.]  ATTORNEYS    AT    LAW.  §  876. 

Bome  of  the  States  expressly  require  notice  to  be  given,  while  in 
others  it  does  not  seem  to  be  requisite  to  the  protection  of  the 
statutory  lien.^ 

§  874.  How  Lien  enforced.  To  the  extent  of  his  lien  the 
attorney  is  regarded  as  an  equitable  assignee  of  the  judgment,* 
and)  after  notice  of  his  claim,  where  the  judgment  is  not 
of  itself  notice,  he  may,  where  uo  other  remedy  is  provided 
by  law,  recover  of  the  opposite  party  in  the  same  manner 
as  any  other  assignee.'  If  the  fund  be  in  the  hands  of  the  sheriff 
or  other  officer  of  the  court,  the  attorney  may,  upon  proper 
motion,  have  an  order  from  the  court  for  payment  to  him  out  of 
the  fund.*  And  the  same  practice  prevails  where  one  of  several 
attorneys  has  obtained  possession  of  the  fund, — the  others  may 
have  an  order  requiring  him  to  pay  them.'  The  lien  may  be 
enforced  though  the  attorney's  claim  is  barred  by  the  statute  of 
limitations.* 

§  875.  How  Lien  lost  or  waived.  The  attorney's  lien  upon 
the  judgment  may  be  lost  or  waived  in  the  same  manner  as  his 
lien  upon  papers  and  money  already  considered.''  An  attorney 
who  abandons  the  cause  loses  his  lieu,  though  he  abandons  it 
because  the  client  did  not  furnish  funds  to  carry  it  on,  or  by 
reason  of  any  other  difficulty.* 

§  876.  By  what  Law  governed.  The  lien  of  an  attorney 
upon  a  judgment  obtained  by  him  is  governed  by  the  law  of  the 
State  where  the  judgment  was  obtained  and  the  lien  attached, 
and  not  by  the  law  of  the  State  where  the  judgment  is  sought  to 
be  collected  ;  and  the  courts  of  the  latter  State  will  protect  and 
enforce  it  according  to  the  law  of  the  former.' 

the  statute  of  that  State.     Gammon  rier  v.  Boston,  etc.  R.  R.  Co.  37  N.  H. 

e.  Chandler,  80  Me.  152;  Hobson  v.  223;  Marshall  v.  Meech.Sl  N.Y.  140, 

Watson,  34  Me.  20,  66  Am.  Dec.  632;  10  Am.  Rep.  672.     But  see  contra, 

Newbert  v.  Cunningham,  50  Me.  231,  Horton  v.  Champlin,  13  R  I,  650,  84 

79  Am.  Dec.  612.  Am.  Rep.  722,  holding  that  attorney 

In  Michigan,  see  Weeks  v.  Wayne  can  not  sue  on  the  judgment  without 

Circuit  Judges,  —  Mich.  — ,  41  N.  W.  his  client's  authority. 

Rep.  269.  *  Walker  v.  Floyd,  30  Ga.  237. 

»  See  ante,  §  861,  note.  »  Smith  v.  Goode,  29  Ga.  185. 

«  Mosely  v.  Norman,  74  Ala.  432;  •  Higgins  v.  Scott,  2  B.  «fc  Ad.  413. 

Jackson  v.  Clopton,  66  Ala.  29;  .Kb  t  See  ante,  §§865,  866. 

parte  Lehman,  59  Ala.  631.  »  Matter  of  H.  93  N.  Y.  381. 

•  Wood«.  Verry,  4  Gray  (Mass.)  357;  »  Citizens'  National  Bank  v.  Culver, 

Stratton  v.  Hussey,  62  Me.  283;  Cur-  54  N.  H.  327,  20  Am.  Rep.  134. 

735 


g  877.  THE    LAW    OF    AGENCY.  [Book  V. 

VIII. 

DEALINGS   BETWEEN    ATTORNEY    AND    CLIENT: 

8  877.  Ill  general— Good  Faith  and  perfect  Fairness  required. 
The  relation  of  attorney  and  client  is  one  of  special  trust  and 
confidence.  From  the  free  and  intimate  disclosures  required  by 
the  relation,  the  attorney  acquires,  not  only  a  full  knowledge  of 
his  client's  business  and  affairs,  but  of  his  necessities  and  weak- 
nesses as  well.  His  position  is  that  of  a  confidential  adviser  and 
he  naturally  has  great  influence  over  his  client.  To  an  unscrupu- 
lous man,  the  attorney's  position,  in  many  instances,  offers  great 
temptations  to  take  advantage  of  the  knowledge  acquired  to  make 
gain  for  himself  by  preying  upon  his  client's  confidence  or  neces- 
sities. The  law,  therefore,  very  properly  requires  that  all  of  the 
dealings  between  the  attorney  and  his  client  shall  be  characterized 
by  the  utmost  fairness  and  good  faith,  and  it  scrutinizes  with 
great  closeness  all  transactions  had  between  them.* 

§  878.  Purchases  from,  and  Sales  to  Client— Adverse  Pur- 
chases. It  has  been  seen  in  an  earlier  portion  of  the  work,  that 
an  agent  authorized  to  sell  property  for  his  principal  will  not, 
without  the  latter's  full  and  intelligent  consent,  be  permitted  to 
sell  to  himself;  that  an  agent  authorized  to  buy  may  not  without 
like  consent,  buy  of  himself,  and  that  an  agent  whose  duty  it  is 
to  buy  for  his  principal  will  not  be  permitted  to  buy  for  him- 
self.' These  rules  apply  with  particular  force  to  the  case  of  the 
attorney.  Thus  it  is  held  that  the  attorney  will  not  be  permit- 
ted, without  full  knowedge  and  consent  on  the  part  of  the  client, 
to  purchase  property  of  his  client  sold  for  taxes  or  sold  in  the 
course  of  litigation  in  which  he  was  retained,'  nor  to  buy,  in  his 
own  name  or  interest,  property  in  which  his  client  was  seeking 
to  obtain  an  interest.*     In  such  cases  the  sale  may,  at  the  o])tion 

«  Weeks  on  Attys,  §  268;  Gray  v.  See  also  Wright  v.  Walker,  30  Ark. 

Emmons,  7  Mich.    533;   Jennings  v.  44. 

McConnell,    17    111.    148;    Baker    v.  Cannot    purchase  client's  land   at 

Humphrey,  101  U.  S.  494.  tax  sale.     Cunningham  v.  .Tones,  37 

«  See  ante,  §§  454-472.  Kans.  477,  1  Am.  St.  Rep.  257. 

>  May  not  purchase  at  execution  or  *  Harper  v.  Perry,  28  Iowa,  58.    In 

other  like   sale  of  client's  property.  Baker  v.  Humphrey,  101  U.  S.  494,  it 

Pearce  v.  Gamble,  72  Ala.  341 ;  Briggs  appeared  that  an  attorney  employed  by 

V.  Hodgdon,  78  Me.  514,  7  Atl.  Rep.  both  parties  to  draw  an  agreement  for 

887.  the  purchase  of  land  for  the  sum  of 

786 


Chap.  I.] 


ATTORNEYS   AT   LAW. 


§878. 


of  the  client,  be  held  void,  or  the  attorney  may  be  charged  as  a 
trustee  of  his  client  and  be  required  to  account  as  such.* 


$8,000,  upon  discovering  a  defect  in 
the  title,  concealed  the  fact  from  one 
of  the  parties,  and  in  accordance 
with  a  secret  agreement  with  the 
other  procured  a  conveyance  by 
quit  claim  for  the  sum  of  $35,  to  E, 
his  own  brother.  Held,  that  his  con- 
duct was  a  gross  breach  of  profes- 
sional duty  and  that  E  should  be 
decreed  on  receiving  the  purchase 
money,  $25,  to  convey  to  the  injured 
party  the  premises,  with  covenant 
against  the  title  of  E,  and  all  others 
claiming  under  him. 

Mr,  Justice  Swaynb  said:  "The 
employment  to  draw  the  contract 
was  sufficient  alone  to  put  the  parties 
in  this  relation  to  each  other.  Gal- 
braith  v.  Elder,  8  Watts  (Pa.)  81; 
Smith  V.  Brotherline,  63  Pa.  St.  461. 
But  whether  the  relation  subsisted 
previously  or  was  created  only  for  the 
purpose  of  the  particular  transaction 
in  question,  it  carried  with  it  the 
same  consequences.  Williamson  v. 
Moriarity,  19  Weekly  Reporter,  818. 

It  is  the  duty  of  the  attorney  to  ad- 
vise the  client  promptly  whenever  he 
has  any  information  to  give  which  it 
is  important  the  client  should  receive. 
Hoopes  v.  Burnett,  36  Miss.  438;  Jett 
V.  Hempstead,  35  Ark.  462;  Pox  v. 
Cooper,  3  Q.  B.  827. 

In  Taylor  v.  Blacklow,  3  Bing.  (N. 
C.)  235;  an  attorney  employed  to 
raise  money  on  a  mortgage,  learned 
the  existence  of  certain  defects  in  his 
client's  title  and  disclosed  them  to 
another  person.  As  a  consequence 
his  client  was  subjected  to  litigation 
and  otherwise  injured.  It  was  held 
that  an  action  would  lie  against  the 
attorney,  and  that  the  client  was 
entitled  to  recover. 

In  Com.  Dig.  tit.  'Action  upon  the 
case  for  a  Deceit,  A  5,'  it  is  said  that 


such  an  action  lies  '  if  a  man,  being 
entrusted  in  his  profession,  deceive 
him  who  entrusted  him;  as  if  a  man 
retained  of  counsel  became  afterwards 
of  counsel  with  the  other  party  in  the 
same  cause,  or  discover  the  evidence 
or  secrets  of  the  cause. 

So  if  an  attorney  act  deceptive  to 
the  prejudice  of  his  client,  as  if  by 
collusion  with  the  demandant  he 
make  default  in  a  real  action, 
whereby  the  land  is  lost.'  It  has  been 
held  that  if  counsel  be  retained  to 
defend  a  particular  title  to  real  estate 
be  can  never  thereafter,  unless  his 
client  consent,  buy  the  opposing  title 
without  holding  it  in  trust  for  those 
then  having  the  title  he  was  employed 
to  sustain,  Henry  v.  Raiman,  25  Pa. 
St.  854.  Without  expressing  any 
opinion  as  to  the  soundness  of  this 
case  with  respect  to  the  extent  to 
which  the  principle  of  trusteeship  is 
asserted,  it  may  be  laid  down  as  a 
general  rule  that  an  attorney  can  in 
no  case,  without  the  client's  consent, 
buy  and  hold,  otherwise  than  in  trust, 
any  adverse  title  or  interest  touching 
the  thing  to  which  his  employment 
relates.  He  cannot  in  such  a  way 
put  himself  in  an  adversary  position 
without  this  result.  The  cases  to  this 
effect  are  very  numerous  and  they 
are  all  in  harmony.  We  refer  to  a 
few  of  them.  Smith  «.  Brotherline, 
63  Pa.  St.  461;  Davis  v.  Smith,  43  Vt. 
269;  Wheeler©.  Willard,  44  Id.  641; 
Giddings  v.  Eastman,  5  Paige  (N,  Y.) 
561  Moore,  et  al.  v.  Bracken,  37111.  33; 
Harper®.  Perry,  28  Iowa,  57;  Hock- 
enbury  c.  Carlisle,  5  Watts  &  S.  (Pa,) 
348;  Habedyw.  Peters,  6  Jurist,  pt.  1, 
1,794;  Jett  v.  Humpstead,  25  Ark. 
462;  Case  v.  Carroll,  35  N.  T,  385; 
Lewis  t).  Hillman,  3  H,  L,  Cas  607." 
•  Henry  v.  Raiman,   25  Penn.  St. 


47 


737 


§  879.  THB   LAW   OF   AGENCY.  [Book  "V. 

Private  purchases  by  the  attorney  of  the  client's  property  are 
regarded  with  still  greater  strictness.  In  many  cases  it  has  been 
held  that  all  such  transactions  are  voidable  at  the  election  of  the 
client,'  but  it  is  believed  that  the  better  rule  does  not  go  so  far. 
There  is  no  necessary  incapacity  for  dealing  between  the  client 
and  attorney,  and,  though  transactions  between  them  will  be  very 
closely  scrutinized,  yet  those  which  are  obviously  fair  and  just 
will  be  upheld.  But  the  burden  of  proof  is  upon  the  attorney, 
and  if  he  cannot  produce  evidence  which  puts  the  transaction 
beyond  reasonable  controversy,  it  will  be  set  aside,  or  he  will  be 
regarded  as  a  trustee  for  his  client.* 

So  to  sustain  a  gift  from  a  client  to  his  attorney,  the  burden  is 
upon  the  latter  to  show  not  only  that  it  was  voluntary,  but  that 
it  was  made  with  full  knowledge  of  all  material  facts  and  with- 
out undue  influence.' 

§  879.  Relation  of  Attorney  and  Clieiit  muat  exist.  But  in. 
order  to  give  these  rules  effect,  it  is  necessary  that  the  relation  of 
attorney  and  client  should  exist  between  the  parties.  The  mere 
fact  that  the  opposite  party  in  a  transaction  was  an  attorney  at 
law,  or  that  he  offered  to  and  did  draw  the  necessary  writings, 
which  passed  between  the  parties,  gratuitously,  is  not  enough. 
He  must  then  have  been  the  attorney  of  the  complaining  party. 
If  he  was  merely  the  adverse  party,  the  fact  that  he  was  at 
the  same  time  an  attorney  at  law  will  not  invalidate  the  transac- 
tion, nor  does  it  raise  the  presumption  of  fraud  or  undue  in- 
fluence.* 

354,   64  Am.   Dec.  703;    Zeigler   «.  Kan.  195,  KisUng  «.  Shaw,  83  CaL 

Hughes,  55  111.  288;  Harper  v.  Perry,  425.  91  Am.  Dec  644;  Starr  «.   Van- 

28  Iowa,  57;  Wheeler  c  Willard,  44  derheyden,  9  Johns.  (N.  T.)  253,  6 

Vt.  040;  Case  v.    Carroll,   35   N.  Y.  Am.  Dec  275;  Miles  e.  Ervin,  1  Mc- 

385;  Johnson  v.  Outlaw,  56  Miss.  541.  Cord's  (S.  G.)  CK  524,  16  Am.  Dec 

>  See  Lane  v.  Black,  21  W.  Va.  617.  623;  Lecatt  «.  Bailee,  3  Port.  (Ala.) 

«  Taylor  v.  Young,  56  Mich.  285;  115,  29  Am.  Dec.  249. 
Gray  v.  Emmons,  7  Mich.    533;    La-  «  Whipple  c.  Barton,  63  K  H.  013; 

<;lede  Bank  o.   Keeler,    109  m.  385;  Walmesley «.  Booth,  2  Atk.   25,  27; 

Wharton  v.  Hammond,  20  Fla.  934;  Cray  v.   IVIansfield,    1  Ves.    Sr.   879; 

Merrymanc.  Euler,  59  Ind.  588,  43  Harrisr.  Tremenheere,16  Ves.  Jr.  84. 
Am.  Rep.  564;  Gruby  «.  Smith,  13         *  Stout  v.  Smith,  98  N.  Y.  25,  50 

111.  App.  43;  Yeamans  «.  Jamea,  27  Am.  Rep.  682. 

738 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  880. 

IX. 

'  PKIVILEGED   COMMUNICATIONS. 

§  880.  Confidential  Communications  privileged.  The  pur- 
poses and  necessities  of  the  relation  between  a  client  and  his 
attorney  require,  in  many  cases,  on  the  part  of  the  client,  the 
fullest  and  freest  disclosures  to  the  attorney  of  the  client's  objects, 
motives  and  acts.  This  disclosure  is  made  in  the  strictest  confi- 
dence, relying  upon  the  attorney's  honor  and  fidelity.  To  permit 
the  attorney  to  reveal  to  others  what  is  so  disclosed,  would  be  not 
only  a  gross  violation  of  a  sacred  trust  upon  his  part,  but  it  would 
utterly  destroy  and  prevent  the  usefulness  and  benefits  to  be 
derived  from  professional  assistance.  Based  upon  considerations 
of  public  policy,  therefore,  the  law  wisely  declares  that  all  confi- 
dential communications  and  disclosures,  made  by  a  client  to  his 
legal  adviser  for  the  purpose  of  obtaining  his  professional  aid  or 
advice,  shall  be  strictly  privileged  ; — that  the  attorney  shall  not 
be  permitted,  without  the  consent  of  his  client, — and  much  less 
will  he  be  compelled — to  reveal  or  disclose  communications  made 
to  him,  or  papers  delivered  to  him,  or  letters  or  entries  made  by 
him,  under  such  circumstances.* 

The  privilege  extends  to  information  derived  from  the  client, 

'  Qreenleaf  on  Ev.  §§  237-246;  Hat-  citizens  are  governed,  80  important  is 

ton  ».  Robinson,  14  Pick.  (Mass.)416,  it  that  they  should  be  permitted  to 

25   Am.    Dec.    415;    Beltzboover    v.  avail  themselves  of  the  superior  skill 

i31:ickstock,  3  Watts.  (Penn.)  20,  27  and  learning  of  those  who  are  sanc- 

^m.  Dec.  330;  Coveney  v.  Tannabill,  tioned  by  the  law  as  its  ministers  and 

1  Hill  (N.  Y.)  33,37  Am.  Dec.   287;  expounders,  both  in  ascertaining  their 

Crosby  v.    Berger,  11  Paige  (N,  Y.)  rights  in  the  country  and  maintain- 

877,  42  Am.  Dec.  117;  Bank  of  Ulica  ing  them  most  safely  in  courts,  with- 

V.  Mersereau,  3  Barb.  Ch,  (N.  Y.)  528,  out  publishing  those  facta  which  they 

19  Am.  Dec.  189;  Patten  v.  Moor,  29  have  aright  to  k£ep  secret,  but  which 

N.  H.  169;  Williams  v.  Fitch,  18  N.  must  be  disclosed  to  a  legal  adviser 

Y.  551;  Britton  v.  Lorenz,  45  N.  Y.  and  advocate  to  enable  him  success- 

51,  57;   Hunter  v.    Watson,    13  Cal.  fully  to  perform  the  duties  of  his 

.-;G;3,  73  Am.  Dec.  543;  Thompson  v.  office,  that  the  law  has  considered  it 

Kilborne,   28  Vt.  750,   67  Am.  Dec.  the  wisest  policy  to  encourage  and 

743.  sanction  this  confidence  by  requiring 

The    principle   upon    which    this  that  on  such  facts  the  mouth  of  the 

rule  is  founded  is  said  by  Chief  Jus-  attorney  shall  be  forever  sealed."    In 

tice  Shaw    to  be    this:     "That   so  Hatton  ®.  Robinson,  14  Pick.  (Mass.) 

numerous  and  complex  are  the  laws  416,  25  Am.  Dec.  415. 
by  which  the  rights  and  duties  of 

739 


§  881.  THE   LAW   OF   AGENCY.  [Book   V. 

as  such,  either  by  oral  communications,  or  from  books  or  papers 
shown  to  him  by  his  client  or  placed  in  his  hands  in  his  character 
of  attorney  or  counsel.* 

S  881.  Under  what  Circumstances  privileged.  It  is  not  nec- 
essary that  the  communication  should  be  made  in  reference  to  a  suit 
in  court  then  pending  or  thereafter  to  be  commenced,*  or  that  it 
should  be  made  under  any  special  injunction  of  secrecy,'  or  that 
the  client  should  understand  the  extent  of  the  privilege,*  or  that 
the  disclosure  should  be  one  strictly  necessary  to  be  made.*  If 
it  be  made  with  a  view  to  professional  employment,  and  in  ref- 
erence to  such  employment  in  legal  proceedings,  pending  or  con- 
templated, or  in  reference  to  any  other  legitimate  professional 
services,  wherein  professional  advice  or  aid  is  sought  respecting 
the  rights,  duties  or  liabilities  of  the  client,  it  will  fall  within  the 
privilege.* 

But  it  is  necessary  that  the  communication  should  have  been  a 
confidential  one,  and  should  be  made  in  reference  to,  or  in  pur- 
suance of,  the  matter  in  which  the  attorney  is  consulted  or 
engaged.  For  if  it  be  made  for  the  express  purpose  of  being 
communicated  to  the  adverse  party  or  others,'  or  if  it  be  made, 
freely  and  openly,  in  the  presence  of  third  persons,"  or  if  it  be 
made  in  reference  to  some  matter  having  no  connection  with  the 
attorney's  employment,  it  will  not  be  privileged." 

So  the  interests  or  protection  of  the  client  will  not  be  permit- 

'  Crosby  p.Berger,  11  Paige  (N.Y.)  Am.   Dec.   189;  Moore  «.   Bray,   10 

377,  42  Am.  Dec.  117.  Penn   St.  524. 

»"If  the  privilege  were  confined  «  McLellan  v.  Longfellow,   supra, 

to  communications  connected  with  Parker  v.  Carter,  4  Munf.  (Va.)  273, 

suits  begun,  or  intended,  or  expected,  6  Am.  Dec.  513. 

or  apprehended,  no  one  could  safely  *  McLellan  v.  Longfellow,  supra. 

adopt    such    precautions    as    might  •  Cleave  v.  Jones,  7  Exch.  421,   8 

eventually   render  any   proceedings  Eng.  L.  &  Eq.  554. 

successful,  or  all  proceedings  super-  •  McLellan  v.   Longfellow,    8upra, 

fluous."  Lord  Chancellor  Brougham.  Lengsfleld  e.   Richardson,    52   Miss, 

in  Greenough  «.  Gaskell,  1  M.  &  K.  443. 

98,103.    Same  point:   Beltzhoover  «.  t  Henderson  e.  Terry,  62  Tex.  281. 

Bl'ackstock,   3  Watts  (Penn.)  20,   27  •  Mobile,   etc..  Ry  Co.  v.   Yeates, 

Am.    Dec.  330;  McLellan  v.  Longfel-  67  Ala.  164;  House  t».  House,  61  Mich, 

low,  32  Me.  494,  54  Am.  Dec.  599;  69,  1  Am.  St.  Rep.  570;  Hartford  Fire 

Bolton  V.  Corporation  of  Liverpool.  1  Ins.  Co.  9.  Reynolds,  36  Mich.  503. 

My.  &  K.  88;  Bank  of  Utica  v.  Mer-  »  State  «.  Mewherter,  46  Iowa.  88. 
eereau,  3  Barb.  Ch.  (N.  Y.)  529,  49 

740 


Chap.  1.] 


ATTOBNET8   AT   LAW. 


§882. 


ted  to  contravene  the  public  necessities  and  good.  Hence  com- 
munications, made  in  consultations,  while  seeking  advice  in 
regard  to  a  proposed  violation  of  law  will  not  be  privileged.' 

But  communications  respecting  a  past  or  completed  offense 
will  be  privileged.*  So  communications  made  in  reference  to 
an  act  which,  while  it  amounts  to  a  fraud,  is  not  a  crime  or 
malum  in  se,  are  privileged,  although  the  communications  are 
made  before  the  commission  of  the  act.»  So  communications  to 
an  attorney,  employed  to  draw  an  assignment  for  the  benefit  of 
creditors  which  is  afterwards  assailed  as  fraudulent,  are  privi 
leged.* 

§  882.  Same  Subject.  The  privilege  does  not  apply  to  cases 
where  the  attorney  acquired  the  information,  not  as  an  attorney 
but  by  observation,  in  the  same  manner  that  any  other  person 
might  have  acquired  it  ;•  nor  where  the  information  was  obtained 
from  a  person  other  than  the  client ;  •  nor  to  a  fact  within  his 
own  knowledge.'     So  the  privilege  does  not  apply  to  statements 


>  "Professional  communications  are 
not  privileged  wlien  such  communica- 
tions are  for  an  unlawful  purpose, 
having  for  their  object  the  commis- 
eion  of  a  crime.  They  then  partake 
of  the  nature  of  a  conspiracy,  or  at- 
tempted conspiracy,  and  it  is  not 
only  lawful  to  divulge  such  commu- 
nications, but  under  certain  circum- 
stances it  might  become  the  duty  of 
the  attorney  to  do  so.  The  interests 
of  public  justice  require  that  no  such 
shield  from  merited  exposure  shall  be 
interposed  to  protect  a  person  who 
takes  counsel  how  he  can  safely 
commit  a  crime.  The  relation  of  at- 
torney and  client  cannot  exist  for  the 
purpose  of  counsel  in  concocting 
crimes.  The  privilege  does  not  exist 
in  such  cases."  Champlin,  J.,  in 
People  «.  Van  Alstine,  57  Mich.  69. 
To  same  effect:  Greenough  v.  Gas- 
kell,  1  M.  «&  K.  98;  State  v.  McChes- 
ney,  16  Mo.  App.  259;  People  v. 
Mahon,  1  Utah,  205;  State  v.  Mew- 
herter,  46  Iowa,  88;  Bank  v.  Merse- 
reau,  3  Barb.  Ch.  (N.  Y.)  528,  49  Am. 


Dec.  189;  Coveney  «.  Tannahill,  1 
Hill  (N.  Y.)  33,  37  Am.  Dec.  287; 
People  V.  Blakely,  4  Park.  Or.  176. 

•  1  Greenleaf's  Ev.  §  240. 
•Bank  v.  Mersereau,  3  Barb.  Ch. 

(N.  Y.)  528,  49  Am.  Dec.  189;  Max 
ham  V.  Place,  46  Vt.  434. 

•  Hollenback  v.  Todd,  119  111.  543 
»  Davies  v.  Waters,  9  M.  «&  W.  611 

Crosby  t».  Berger.  11  Paige  (N.  Y. 
877,  42  Am.  Dec.  117;  Brandt  v. 
Klein,  17  Johns,  (N.  Y.)  335;  Chilli 
cothe  Ferry  &c.  Co.  v.  Jameson,  48 
111.  281;  Stoney  e.  McNeil,  Harper's 
(S.  C.)  L.  557,  18  Am.   Dec.  666. 

•  Crosby  v.  Berger,  supra;  Hunter 
V.  Watson,  12  Cal.  363,  73  Am.  Dec. 
543;  Gallagher  v.  Williamson,  23 
Cal.  331,  83  Am.  Dec.  114.  Com- 
munications to  an  attorney,  by  one 
not  interested  in  the  suit,  though  a 
nominal  party,  are  not  privileged. 
Allen  V.  Harrison,  30  Vt.  219,  73  Am. 
Dec.  303. 

▼  Gallagher  v.  Williamson,  supra. 
Coveney  v.  Tannahill,  1  Hill  (N.  Y.) 
83,  87  Am.  Dec.  287. 


741 


§882. 


THB   LAW   OF   AGENCY. 


[Book  V. 


made,  in  the  presence  of  the  attorney,  by  the  client  to  other 
persons,  or  by  such  other  persons  to  the  client,  or  by  such  other 
persons  to  each  other.' 

The  privilege  does  not  apply  to  third  persons  who  were  pres- 
ent at  the  time  the  communications  were  made,*  nor  to  the 
adverse  party,'  nor  to  communications  made  in  the  presence  of 
both  parties.* 

Neither  does  the  privilege  apply  to  collateral  facts,  involving 
no  matter  of  confidence.  Thus  the  attorney  may  be  required  to 
disclose  the  fact  of  his  retainer,*  the  name  •  of  his  client,  and  in 
what  capacity,'  and  at  what  time,*  he  employed  him ;  to  prove 
the  identity  of  his  client,*  and  to  testify  to  the  execution  of  a 
deed  by  the  client,"  which  the  attorney  attested  as  a  witness ;  to 
disclose  whether  or  not  he  has  in  his  possession  a  paper  of  his 
client's,"  in  order  to  let  in  secondary  evidence  of  its  contents, 
and  to  state  the  manner  "  and  time  "  of  his  obtaining  it,  but  he 
cannot  be  compelled  to  produce  it  or  to  state  its  contents  or  pur- 
port ;  **  to  state  whether  he  has  received  money  for  his  client 


'  Gallagher  c.  Williams,  lupra; 
Coveney  B.  Tannahill ,  SM;)ra  ;Rochester 
City  Bank  «.  Suydam,  5  How.  Pr. 
(N.  Y.)  254;  Hatton  v.  Robinson,  14 
Pick.  (Mass.)  416,  25  Am.  Dec.  415; 
House  ».  House,  61  Mich.  69,  1  Am. 
St.  Rep.  570;  Hartford  Fire  Ins.  Co. 
V.  Reynolds,  36  Mich.  502. 

«  Jackson  e.  French,  3  Wend.  (N. 
Y.)337,  20  Am.  Dec.  699;  Goddard 
r.  Gardner,  28  Conn.  172;  Hoy  v. 
Morris,  13  Gray  (Mass.)  519. 

8  Goddard  c.  Gardner,  28 Conn. 172; 
Hoy  r.  Morris,  13  Gray  (Mass.)  519. 

<  Britton  «.  Lorenz,  45  N.  Y.  51. 
Whiting  V.  Barney,  30  N.  Y.  330,  86 
Am.  Dec.  385. 

Root «.  Wright,  21  Hun  348,  8.  0. 
84  N.  Y.  76;  Sherman  v.  Scott,  27 
Hun  334;  Rosenburg  e.  Rosenburg, 
40  Hun  100. 

» Chirac  v.  Reinicker,  11  Wheat. 
(U.  S.)  280;  Forshaw  v.  Lewis,  1  Jur. 
(N.  8.)  263. 

»  Levy  «.  Pope,  1  M.  &.  W.  410; 
Browne.  Payson,  6  N.  H.  443;  Ful- 


Williams,   1  M.   & 
e.  Payson,  6  N.  H. 


ton  «.  Maccracken,   18  Md.  528,  81 
Am.    Dec.  620. 
t  Beckwith  v.  Benner,  6  C.  &  P. 

681. 

«  Wheatley  ». 
W.  533;  Brown 
443. 

•  Beckwith  v.  Benner,  6  C.  &  P. 
681 ;  Hurd  v.  Moring,  1  C.  &.  P.  372. 

'•Doe  V,  Andrews,  Cowp.  845; 
Robson  V.  Kemp,  4  Esp.  235;  Cove- 
ney  v.  Tannahill.  post. 

"  Coveney  v.  Tannahill,  1  Hill  (N. 
Y.)  33,  37  Am.  Dec.  287;  Jackson  v. 
McVey,  18  Johns. (N.  Y.)  330;  Brandt 
V.  Klein,  17  Johns.  (N.  Y.)  335;  Be 
van  V.  Waters.  1  M.  &  M.  235. 

But  see  in  Georgia,  Dover  v.  Har- 
rell,  58  Ga.  572. 

"  Allen  t>.  Root,  39  Tex.  589. 

'»  Rundlee.  Foster.  3Tenn.  Ch.  658. 

'*  Coveney  v.  Tannahill,  supra; 
Jackson  v.  McVey,  supra;  Brandt  v. 
Klein,  supra;  Wright  v.  Mayer,  6 
Ves.  280;  RexD.  Dixon,  3  Buir.1687; 
Dover  v.  Harrell,  58  Ga.  572. 


742 


Chap.  1.]  ATT0BNET8   AT   LAW.  §  883, 

and  where  he  has  deposited  it ;  *  to  prove  the  fact  that  he  drew 
a  deed  for  his  client,*  and  the  time*  when  he  did  so ;  to  prove 
his  client's  handwriting,  from  his  general  knowledge  of  it;* 
and  the  fact  that  the  client  swore  to  a  bill  in  chancery.* 

§  883.  Relation  of  Attorney  and  Client  must  exist.  In  order 
that  the  communications  be  privileged,  it  is  necessary  that  the 
relation  of  attorney  and  client  should  exist  at  the  time  they  were 
made,'  although  it  is  not  necessary  that  there  should  be  a  formal 
retainer,'  or  the  payment  of  a  fee.'  If  they  were  made  before 
the  relation  began,'  or  after  it  had  wholly  ceased,  although  made 
in  reference  to  a  subject  which  had  formerly  been  protected  by 
the  relation,"  they  are  not  privileged.  So  if  they  were  made 
casually  merely,  or  to  the  attorney  as  a  friend  and  not  as  an  attor- 
ney, they  would  not  be  protected.'* 

And  the  attorney  must  have  been  employed  as  an  attorney. 
If  he  is  employed  as  a  mere  scrivener  or  conveyancer,  to  put  in 
writing  a  contract  or  other  instrument  already  agreed  upon,  and 
his  advice  or  counsel  as  an  attorney  is  not  sought,  he  will  be  at 
liberty  to  testify  as  to  what  came  to  his  knowledge  during  the 
transaction.'*  But  if  he  be  employed  to  give  advice  or  counsel, 
as  an  attorney,  as  to  the  best  form  of  instrument  to  accomplish 

>  Jeanes  t.  Fridenberg,  3  Pa.  L.  J.  McNeil.  Harper's  (S.   C.)  L.  557.  18 

R.  199;  Williams  v.  Young,  46  Iowa,  ^uj^  j)ec_  666. 

1*<^-  »•  Yordan  v.  Hess,  13  Johns.  (N.Y.) 

»  Bundle  v.  Foster,  3  Tenn.  Ch.  658.  493.  Mandeville  v.  Guernsey. 38  Barb. 

»  Bundle  v.  Foster,  supra.  (N.  Y.)  225. 

<  Johnson  v.   Daverne,    19  Johns.  "  1  Greenleaf  Ev.  §  244. 

(N.  Y.)  134,   10  Am.  Dec.  198;    and  "  Hatton    v.    Robinson,  14    Pick, 

see  Hurd  v.    Moring,  1  C.  &  P.  373,  (Mass.)  416,  25  Am.Dec.  415;  DeWolf 

where  the   attorney  was  required  to  v.  Strader,  26  111.   225,  79  Am   Dec. 

prove  the    handwriting    though  his  372;  Smith  v.    Long,    106    111.    488; 

knowledge  was  acquired  solely  from  Todd  «.  Munson,  53  Conn.  579;  Heb- 

seeing  his  client  sign  the  bail  bond.  bard  v.  Haugbian,    70    N.     Y.    54; 

sBuller's  N.  P.  284;    Doe  ».  An-  Machette  ■».Wanless,2  Colo.  169;  Ran- 

drews,  Cowp.  846.  del  v.  Yates,  48  Miss.  688;  House  v. 

•Earl  «.  Grout,  46  Vt.   113;   Ban-  House, 61  Mich.G9,l  Am.  St.  Bep.570. 

dolph  V.  Quidnick  Co.  23  Fed.  Bep.  Goodwin's  Appeal,  117  Pa.  St.  514,  2 

278;  Bomberg   e.  Hughes,    18  Neb.  Am.  St.  Bep.  696. 

579;    Bochester  City    Bank  v.    Suy-  Contra:  Parker  v.  Carter,  4  Munf. 

dam,  5  How.  Pr.  (N.  Y.)  254.  (Va.)  273,  6  Am.  Dec.  513;  Bank  of 

'  Earl  V.  Grout,  supra.  Utica  v.  Mersereau,  3  Barb,   (N.  Y.) 

»  Cross  ».  Biggins,  50  Mo.  335.  Ch.  528;  49  Am.  Dec.  189;   Getzlafl 

» 1  Greenleaf  Ev.  §  244;  Stoney  r.  c,  Seliger,  43  Wis.  297. 

743 


§  884.  THE   LAW    OF   AGENOT.  [Book  Y. 

the  purpose  or  to  protect  the  interests  of  his  client,  or  to  give 
an  opinion  as  to  the  force  or  effect  of  the  instrument,  communi- 
cations made  to  him  will  be  privileged  although  he  also  draws 
the  instrument.* 

Communications  made  to  an  attorney  by  the  party  under  the 
impression  that  the  attorney  had  consented  to  act,  are  privileged, 
although  the  attorney  himself  may  not  have  so  understood  the 
arrangement." 

§  884.  Communications  must  have  been  made  to  an  Attorney. 
So  the  communications  must  have  been  made  to  an  attorney  at 
law'  or  to  his  clerk,  agent,  interpreter,  or  other  representative.* 
If  made  to  a  mere  student  in  his  office,*  or  if  made  to  a  person 
not  an  attorney,  though  the  client  supposed  him  to  be  one,*  they 
are  not  privileged. 

So  where  a  license  is  required,  it  protects  communications 
made  to  a  licensed  attorney  only.' 

§  885.  Privilege  is  the  Client's.  The  privilege  is  the  privilege 
of  the  client  and  not  of  the  attorney.  The  seal  placed  by  the 
law  upon  the  lips  of  the  attorney  can  be  removed  only  by  the 
client  or  those  who  represent  him,  audit  is  not  within  the  power 
of  the  attorney  alone  to  waive  or  remove  it.' 

The  client  may,  however,  waive  it  if  he  sees  fit  during  his  life-time,  • 

'  House  V.  House,   supra;  Bank  of  v.    Harris,  7  Gush.  (Mass.)   576,    54 

Utica  V.  Mersereau,  supra;  Parker  v.  Am.  Dec.  734, 

Carter,  supra.  But  communications  made  to  one 

9  Alderman  v.  People,  4  Mich.  414,  who,  though  not  an  attorney,  was  a 

69  Am.  Dec.  321.  regular  practitioner  injustices'  courts 

»  The  rule  applies  only  to  attorneys  were   held  privileged.      Benedict  v. 

at  law  and  not  to  attorneys  in  fact.  State,  44  Ohio  St,  679. 

McLaughlin  v.  Gil  more,  1  111.  App,  »  Barnes  v.  Harris,  supra. 

563;  Holmanu,  Kimball.  23  Vt,  555.  ""  •Sample*.   Frost,    10   Iowa,   266; 

<"It   is    confined    strictly"    says  Barnes  «.  Harris,  awpra. 

Chief  Justice  Shaw,  "to  communi-  i  McLaughlin  ti.Gilmore.l  111,  App. 

cations  to  members  of  the  legal  pro-  563, 

fession,  as  barristers  and  counsellors,  •  Hatton   v.    Robinson,    14    Pick, 

attorneys    and    solicitors,  and  those  (Mass.)  416.  25  Am.  Dec.  415. 

whose   intervention  is  necessary  to  •  Tate  p.  Tate,  75  Va.   532;  Sleeper 

secure  and  facilitate    the   communi-  t,  Abbott,    60    N.    H,    163;  Chase's 

cation  between  attorney  and  client,  Case,  1  Bland  (Md.)  Ch.  206,  17  Am. 

as  interpreters,  agents  and  attorneys'  Dec.  277;  Parker  ».  Carter,  4  Munf. 

clerks."    Foster    v.    Hall,    12    Pick.  (Va.)  273,  6  Am.    Dec.  513;  Foster  u. 

(Mass,)  89,  22  Am,  Dec.  400;  Barnes  Hall,  12  Pick,  (Mass.) 82,  22  Am.  Dec. 

744 


Chap.  I.]  ATTORNEYS    AT   LAW.  §  887. 

or  it  may  be  waived  by  those  who  represent  him  after  his 
death.* 

The  client  does  not  waive  the  privilege  by  making  the  attor- 
ney a  witness  upon  other  matters  than  that  privileged,  but  if  he 
examines  him  upon  such  subjects  he  waives  the  privilege,  and 
the  other  party  may  cross-examine  him  on  the  same  subjects.* 
Where  there  were  several  clients,  the  consent  or  waiver  of  all  of 
them  is  necessary  to  make  the  attorney  a  competent  witness.* 

§  886.  How  long  it  continues.  The  operation  of  the  privi- 
lege is  perpetual  and,  unless  duly  waived,  survives  not  only  the 
termination  of  the  relation  of  attorney  and  client,  but  the  lives 
of  the  attorney  and  client  as  well.*  The  death  of  the  client 
does  not  remove  it,*  nor  will  the  executor  or  administrator  of  the 
attorney  be  permitted  to  reveal  papers  or  information  confided  to 
the  attorney,  and  which  he  himself  would  not  have  been  per- 
mitted to  reveal.*  The  fact  that  the  information  is  asked  for  in 
a  suit  to  which  the  client  is  not  a  party  makes  no  difference.' 

§  887.     Attorney  may  disclose  for  his  own  Protection.      But 

the  attorney  may  disclose  information  received  from  the  client 
when  it  becomes  necessary  for  his  own  protection,  as  if  the  client 
should  bring  an  action  against  the  attorney  for  negligence  or  mis- 
conduct, and  it  became  necessary  for  the  attorney  to  show  what 
his  instructions  were,  or  what  was  the  nature  of  the  duty  which 
the  client  expected  him  to  perform.*  So  if  it  became  necessary 
for  the  attorney  to  bring  an  action  against  the  client,  the  client's 

400.      Benjamin    «.    Coventry.    19  attorney  by  two  defendants    is  not 

Wend.  (N.  Y.)  353;  Whiting  v.  Bar-  privileged   in  a  subsequent  suit   be- 

ney,  30  N.  T.  330,  86  Am.  Dec.  385;  tween  the  two.     Rice  v.  Rice,  14  B. 

Riddles  v.  Aikin.  29  Mo.  453;  Fossler  Men.  (Ky.)  417. 

V.  Schriber,  38   111.  172;    Stanton  v.  *  Hatton    v.    Robinson,    14    Pick. 

Hart,    27   Mich.    539;    Passmore    v.  (Mass.)  416,    25  Am.  Dec.  415;  Wil- 

Passmore,  50  Mich.  626,  45  Am.  Rep.  son  v.  Rastall,  4  T.  R.  759;  Parker  v. 

62.  Yates,  12  Moore,  520. 

Client    waives    it    when    he  turns  •  1  Greenleaf  on  Ev.  §  243. 

State's   evidence   and    swears  to  an  «  1  Greenleaf  on  Ev.  §  239. 

offense    in    which    he   was  a  party.  '  Pliillips' Ev.  (6th  Ed.)  131,  Foster 

Hamilton  v.  People,  29  Mich.  173.  e.  Hall,  12  Pick.  (Mass.)  89,  22  Am. 

«  See  Fraser  v.  Jennison,  42  Mich.  Dec.  400. 

206.  *  Rochester  City  Bank  v.  Suydam, 

sVaillant    e.    Dodemead,    2  Atk.  5  How.    Pr.  (N.  Y.)  254;  Mitchells 

524:  Waldron  v.  Ward.  Style  449,  Bromberger,  2  Nev.  345,  90  Am.  Dec. 

*  But  a  communication  made  to  an  550. 

745 


§  888.  THE   LAW   OF   AGENCY.  [Book    V. 

privilege  could  not  prevent  the  attorney  from  disclosing  what 
was  essential  as  a  means  of  obtaining  or  defending  his  own  rights.* 


TERMINATION   OF  THE   RELATION. 

§888.  By  Operation  of  Law.  The  relation  of  attorney  and 
client  would,  in  general,  be  terminated  by  the  same  causes  which, 
by  operation  of  law,  serve  to  terminate  the  relation  of  any  other 
principal  to  his  agent.'  Thus  the  death  of  the  client,*  his  insan- 
ity,* or  his  bankruptcy  •  would  undoubtedly  dissolve  the  relation. 
So  the  death  of  the  attorney,*  his  insanity,'  his  disbarment,'  or 
his  removal  from  the  State  •  would  effect  the  same  result.  War 
between  the  country  of  the  client  and  that  of  the  attorney  would 
suspend  the  relation." 

§  889.  By  Act  of  the  Parties.  The  relation  may  also  be  dis- 
solved by  the  act  of  the  parties.  Under  what  circumstances  this 
may  be  done  and  with  what  effect  have  already  been  considered." 

«  Mitchell  V.  Bromberger,  tupra.  •  See  ante,  %  349. 

»  See  that  subject  discussed,  ants,         »  See  ante,  %  259. 
§  239  et  aeq.  •  This  would  seem  to  be  a  neces- 

8  Adams    e.   Nellis,   59  How.  Pr.  sary  consequence. 
(N.Y.)  385;  Harness t).  State,57  Ind.  1;         »  This  would  seem  to  follow  from 

Clegg  V.  Baumberger,  110  Ind,  536,  9  Matter  of   Mosness,  39  "Wis.  609,  20 

North  E.  Rep.  700;  Lapaugh  v.  Wil-  Am.  Rep.  55. 
son.  43  Hun  (N.  Y.)  619.  "  See  ante  §  269.  Blackwell  v.  Wil- 

«  See  ante,  %  254.  lard,  65  N.  C  555,  6  Am.  Rep.  749. 

» See  ante,  %  263.  "  See  ante,  §§  855-857. 

746 


Chap.  II.] 


AUCTIONEERS. 


§890. 


OHAPTEK    XL 


OP  AUOTIONEERa 


890.  Purposes  of  this  Chapter. 

1.  Of  the  Auctioneer, 

891.  Definition. 

892.  Who  may  be. 

893.  Whose  Agent  he  is. 

t.  How  Authorized. 

894.  Like  other  Agents. 

S.  Auctioneer's  Implied  Powers. 

895.  To  fix  Terms  of  Sale. 

896.  To  accept  the  Bid. 

897.  To  receive  the  Price. 

898.  To  sue  in  his  own  Name  for 

the  Price. 

899.  None— To   delegate    his    Au- 

thority. 
None — To  sell  on  Credit. 
None — To  rescind  Sale. 
None — To  sell  at  private  Sale. 
None — To  bid  himself. : 


900. 
901. 
902. 
903. 

904.  None— To  warrant  Quality. 

4.  Auctioneer's  Duties  and  Liabilities 
to  Principal. 

905.  Bound  for  reasonable  Skill  and 

Diligence. 

906.  To  obey  Instructions. 

907.  To  account  for  Proceeds. 

908.  To  take  Care  of  Goods. 

909.  To  sell  for  Cash  only. 

910.  To  sell  to  third  Parties  only. 

911.  To  sell  in  Person. 

912.  To  disclose  his  Principal. 


5.  Auctioneer's  Duties  and  LiaMlitiM 

to   Third  Persons. 
§  913.  Liable  when  he  conceals  Prin- 
cipal. 
014.  Liable    when  he  exceeds  his 
Authority. 

915.  Liability  for  selling  Property 

of  Stranger. 

916.  Not    liable    for   not    holding 

Auction  as  advertised. 

6.  Auctioneer's    Rights    against    his 

Principal. 

917.  Compensation,  Reimburse- 

ment, Indemnity. 

918.  Recoupment  of  Damages. 

919.  Auctioneer's  Lien. 

920.  Can    not   dispute   Principal's 

Title. 

7.  Auctioneer's  Bights    against  Third 

Persons. 

921.  Right  to  sue  Bidder. 

922.  Right  to  sue  Wrong  doer. 

8.  Principal's   Rights   against    Third 

Persons. 

923.  To  recover  purchase  Price. 

924.  Where  Bidder  refuses  to  com- 

plete Purchase. 

9.  Rights  of   Third    Persons   against 

Principal. 

925.  Principal's  Liability  for  Auc- 

tioneer's Acts. 

926.  Liable  for  Breach  of  Contract 


8  890.  Purpose  of  tliis  Chapter.  It  is  not  the  purpose  of  this 
chapter  to  discuss  the  subject  of  auctions  or  auction  sales.  Only 
that  portion  of  those  topics  which  bears  upon  the  question 
of  the  agency  of  the  auctioneer,  is  within  the  scope  of  this 
treatise. 

747 


§  891,  THE    LAW    OF    AGENCY.  [Book  Y, 

1.     Of  the  Auctioneer. 

§  891.  Definition.  An  auctioneer  has  been  defined  in  the 
opening  chapter  of  the  work  to  be  one  whose  business  it  is  to  sell 
or  dispose  of  property,  rights  or  privileges  at  public  competitive 
Bale,  to  the  persons  offering  or  accepting  the  terms  most  favor- 
able to  the  owner.  Other  definitions  and  distinctions  have  there 
been  considered. 

§  892.  Who  may  be.  As  a  general  rule  any  person  who  is 
competent  to  act  as  agent,  in  other  departments  of  business,  may 
act  in  this.  On  account  of  the  nature  of  his  functions,  however, 
there  will  be  found,  in  many  of  the  States,  statutory  enactments 
prescribing  who  may  act  as  auctioneer,  and  upon  what  terms 
and  conditions.  These  statutes  usually  require  that  the  auctioneer 
shall  be  licensed,  and  shall  give  a  bond  for  the  faithful  perform- 
ance of  his  duty,  and  prescribe  what  fees  he  may  recover  and 
by  what  means.*  Auctioneers  are  also  not  unfrequently  the  sub- 
ject of  municipal  regulations. 

§  893.  Whose  Agent  he  is.  An  auctioneer  employed  by  the 
owner  of  real  or  personal  property  or  of  rights  of  any  kind, 
to  sell  or  dispose  of  the  same  at  auction,  is  primarily  the  agent 
of  the  owner,  and  of  him  alone;  and  he  remains  his  agent  exclu- 
sively up  to  the  moment  when  he  accepts  the  bid  of  the  pur- 
chaser and  knocks  down  the  property  to  him.  Upon  the  accep- 
tance of  the  bid,  however,  the  auctioneer  becomes  the  agent  of 
the  purchaser  also,  to  the  extent  that  it  is  necessary  to  enable  the 
auctioneer  to  complete  the  purchase  and  he  may,  therefore,  bind 
the  purchaser  by  entering  his  name  as  such  and  by  signing  the 

«  See  ante,  §  13.  State  t.  Rucker,  24  Mo.  557;  Oska- 

•  These  statutes  are  collected  in  the  loosa  «.  TuUis,  25  Iowa,  440;  Decorah 

Appendix  to  Bateman  on  Auctions.  t),  Dunstan,  38  Id.  96;  Waterhouse  t>. 

It  is  not  within  the  scope  of  this  work  Dorr,  4  Me.  333;  State  v.  Conkling, 

to  give  them,  but  the  following  cases  19  Cal.  501;  State  ».  Poulterer,  16  Id. 

maybe  referred  to  as  illustrating  their  515;  Wiggins  «.  Chicago,  68  111.  372; 

interpretation  and  application:    Car-  Wright  t.  Atlanta,  54  Ga.  6i5;  Sewall 

pentem.  Le  Count,  93N.Y.  562;  Rus-  «.  Jones,  9  Pick.  (Mass.)  412;  Jordan 

Bell    t.  Miner,  25  Hun  (N.    Y.)  114;  t>.  Smith,  19  Id.  287;  Clark  v.  Cush- 

Deposit  e.  Pitts,  18  Id.  475;  Fretwell  man,  5  Mass.  505;  Amite  City  ».  Cle- 

«.  Troy,  18  Kans.   271;  Crandall  «.  mentz,  24  La.  Ann.  27;  Florance  «. 

State,    28    Ohio    St.     479;    Daly    «.  Richardson,  2  Id.  663;  Gunnaldson «. 

Commonwealth,   75    Penn.    St.    381;  Nyhus,  27  Minn.  440;  McMechen  t». 

Hunt  c.    Philadelphia,   35    Id.   277;  Baltimore,  3  Har.  «&  J.  (Md.)  534. 

748 


Chap.  II.] 


ATJCTIONEERB. 


§893. 


memorandum  of  the  sale.*  Such  a  signing  is  suflScient  to  satisfy 
the  statute  of  frauds.*  But  in  order  to  so  bind  the  purchaser, 
the  entry  of  the  name  of  the  purcliaser  must  be  done  by  the 
auctioneer  or  his  clerk  immediately  upon  the  acceptance  of  his 
bid  and  the  striking  down  of  the  property ;  it  must  be  done  at 
the  time  and  place  of  the  sale,  and  can  not  be  done  after  the  sale 
is  over.*  The  principle  upon  which  this  rule  is  founded,  as  is 
said  by  a  learned  judge,  is  "  that  the  auctioneer  at  the  sale  is  the 


»  Bent  V.  Cobb,  9  Gray  (Mass.)  897, 
69  Am.  Dec.  295;  Doty  v.  Wilder,  16 
111.  407,  60  Am.  Dec.  756;  Thomas  v. 
Kerr,  3  Bush  (Ky.)  619,  96  Am.  Dec. 
263;  Walker  «.  Herring,  21  Gratt. 
(Va.)  678,  8  Am.  Rep.  616. 

«  Bent  V.  Cobb,  supra;  Sanborn  v. 
Chamberlin,  101  Mass.  409;  Craig  v. 
Godfroy,  1  Cal.  415,  54  Am.  Dec. 
299 ;  Thomas  v.  Kerr,  supra;  Harvey 
V.  Stevens,  43  Vt.  655;  Hart  v.  Woods, 
7  Blackf.  (Ind.)  568;  Adams  v.  Mc- 
Millan, 7  Port.  (Ala.)  73;  O'Donnell  v. 
Leeman,  43  Me.  158;  Linn  Boyd  To- 
bacco Co.  «.  Terrill,  13  Bush  (Ky.) 
463;  Brent  v.  Green,  6  Leigh  (Va)  16; 
Pike  V.  Balch,  38  Me.  303;  Pugh  u. 
Chesseldine,  11  Ohio,  109,  37  Am. 
Dec.  414;  Farebrother  v.  Simmons,  5 
B.  &  Aid.  333;  Simons  «,  Motivos,  8 
Burr.  1921;  Hinde  v.  Whitehouse,  7 
East.  558;  White  «.  Proctor,  4  Taunt. 
209;  Emmcrson  v.  Heelis,  2  Taunt. 
38.  But  where  the  auctioneer  is  a 
party  in  interest,  his  memorandum  is 
not  sufficient.  Bent  v.  Cobb,  supra; 
TuU  V.  David,  45  Mo.  446,  100  Am. 
Dec.  385;  Johnson  «.  Buck,  35  N.  J. 
L.  342. 

3  "  It  appears  now  to  be  settled,  by 
the  English  authorities,  »  »  •  * 
that  the  auctioneer  is  a  competent 
agent  to  sign  for  the  purchaser  either 
of  lands  or  goods  at  auction;  and  the 
insertion  of  his  name  as  the  highest 
bidder  in  the  memorandum  of  the  sale 
by  the  auctioneer,  immediately  on 
receiving  his  bid,  and  striking  down 
the  hammer,  is  a  signing  within  the 


statute,  so  as  to  bind  the  purchaser." 
Chancellor  Kent,  in  McComb  v. 
Wright,  4  Johns.  (N.  T.)  659,  (563. 

"It  is  now  well  settled,  by  authori- 
ties, that  a  sale  of  real  estate  at  auc- 
tion, where  the  name  of  the  bidder  is 
entered  by  the  auctioneer,  or  by  his 
clerk,  under  his  direction,  on  the 
spot,  and  such  entry  if  so  connected 
with  the  subject  and  terms  of  sale  as 
to  make  a  part  of  the  memorandum. 
Is  a  contract  in  writing,  so  as  to  take 
the  case  out  of  the  statute  of  frauds." 
Story,  J.,  in  Smith  v.  Arnold,  5 
Mason  (U.  S.  C.  C.)  414,  419. 

"The  name  of  the  bidder  must  be 
entered  by  the  auctioneer,  or  by  his 
clerk  under  his  direction,  on  the 
spot."  Shaw,  J.,  in  Gill  v.  Bicknell, 
2  Cush.  (Mass.)  355,  358. 

"  The  law,  therefore,  when  it  al- 
lows him  (the  auctioneer)  to  act  in  the 
nearly  unprecedented  relation  of 
agent  for  both  parties,  imposes  a 
qualification  not  applied  in  the  usual 
cases  of  agency,  and  requires  that  the 
single  act  for  which  almost  from 
necessity,  he  is  authorized  to  perform 
for  the  buyer,  shall  be  done  at  the 
time  of  sale,  and  before  the  termina- 
tion of  the  proceedings."  Kent,  J., 
in  Horton  v.  McCarty,  53  Me.,  394- 
398.  To  the  same  effect,  see:  Craig 
V.  Godfroy,  1  Cal.  415,  64  Am.  Dec. 
299;  where  the  entry  was  held  too 
late,  though  made  in  the  afternoon  of 
the  same  day;  Hicks  v.  Whitmore, 
12  Wend.  (N.  Y.)  648,  where  one 
hour's  delay  was  held  fatal. 


749 


I  894.  THE    LAW   OF   AGENCY.  [Book  V. 

agent ;  that  the  purchaser,  by  the  act  of  bidding,  calls  on  him  or 
his  clerk,  to  put  down  his  name  as  the  purchaser.  The  entry 
being  made  in  his  presence,  is  presumed  to  be  made  with  his 
sanction,  and  to  indicate  his  approral  of  the  terms  thus  written 
down.  In  such  case  there  is  but  little  danger  of  mistake  or  fraud. 
But  if  a  third  person,  not  present,  or  even  the  auctioneers,  may 
afterward  add  the  name  of  another  purchaser,  they  may  strike 
out  the  name  already  inserted,  and  substitute  that  of  a  new  and 
different  purchaser.  They  may  defeat  rights  already  vested. 
They  may  impose  liabilities  never  contracted.  The  party  to  be 
charged  may  thus  be  held  liable  by  a  writing  he  never  saw,  signed 
by  an  agent  of  whom  he  never  heard."  * 

2.  How  Authorized. 

§  894.  Like  other  Agents.  Authority  may  be  conferred  upon 
an  auctioneer  in  the  same  manner  as  upon  any  other  agent ;  that 
is,  it  may  be  conferred  by  formal  writing,  or  by  parol,  or  its 
existence  may  be  implied  from  conduct.  No  formal  authoriza- 
tion is  necessary.  Even  to  sell  real  estate,  parol  authority  in  the 
auctioneer  is  sufficient,  in  the  absence  of  a  statute  to  the 
contrary." 

Power  to  sell  property  does  not  imply  authority  to  sell  it  at 
auction,  and  the  purchaser  at  such  a  sale,  who  has  notice  of  the 
agent's  powers  or  of  facts  sufficient  to  put  him  upon  an  inquiry 
which  would  have  disclosed  the  extent  of  his  power,  gets  no  title 
to  the  property.' 

Sending  goods  to  an  auction  room  will,  in  the  absence  of  any- 
thing to  indicate  a  contrary  intent,  be  deemed  evidence  of 
authority  to  sell  them  at  auction,  so  as  to  protect  a  purchaser  of 
them  who  buys  in  good  faith.* 

'  Staples,  J.,  in  "Walker  e.   Her-  any  price  that   may  be  offered.     It 

ring,  21  Gratt.  (Va.)  678,  8  Am.  Rep.  is  ordinarily  the  last  resort  to  reduce 

(516.  property  into  money,  and  we  should 

» Doty  «.   Wilder,   15  111.  407,   60  be  slow  to  ratify  the  doings  of  an 

Am.  Dec.  756 ;  Yourt  v.  Hopkins,  24  agent,  clothed  with  the  usual  powers 

111.  329;  Cossitt  e.  Hobbs,  56  Dl.  233.  to  sell,  who  should  pursue  such  a 

3  Towle  «.  Leavitt,  23  N.  H.  360,  course." 

55  Am.  Dec.  195.  *  Pickering  v.  Busk,  15  East.  88; 

"  A  sale  at  auction,"  saye  Eastman,  Morgan  «.  Darragh,  39  Tex.  171. 
J.,  in  this  case,  "implies  a  sale  at 

750 


Chap.  II.] 


AUCTI0NEEE8. 


§895. 


3.  Auctioneer's  Implied  Powers. 

§  895.  To  fix  Terms  of  Sale.  The  owner  of  property  which 
he  proposes  to  sell  at  auction  has  the  primary  right  to  prescribe 
the  manner,  conditions  and  terms  of  the  sale,  and  where  these 
are  reasonable  and  are  made  known  to  the  buyer,  or  where, — the 
auctioneer  being  ordinarily  a  special  agent,' — the  purchaser  is 
charged  with  notice  of  them,  they  are  binding  upon  him,  and  he 
cannot  acquire  a  title  in  opposition  to  them  against  the  consent 
of  the  owner." 

Where  no  such  terms  and  conditions  are  prescribed  by  the 
owner,  the  auctioneer  has  implied  power  to  prescribe  such  as  are 
reasonable  and  usual  in  like  cases;  *  but  he  has  no  implied  power 
to  waive  or  ignore  the  terms  and  conditions  fixed  by  the  owner 
and  publicly  made  known,  or  to  adopt  any  rules  of  his  own 
inconsistent  with  them.*  Persons  purchasing,  however,  in  good 
faith  relying  upon  reasonable  and  usual  terms  fixed  by  the  auc- 
tioneer, the  owner  having  prescribed  no  others,  would  acquire  a 
good  title.* 


1  Bush  V.  Cole,  28  N.   Y.  16t,  84      Edmunds,    13    East.   7;    Shelton   e. 


Am.  Dec.  343;  The  Monte  Allegre,  9 
Wheat.  (U.  S.)  645. 

2Farr  ».  John,  23  Iowa,  286,  92 
Am.  Dec.  426.  In  this  case  it  was 
held,  inter  alia,  to  be  competent  for 
the  owner  to  provide  that  no  bid  less 
than  a  certain  sum  should  be  received, 
and  hence  that  a  purchaser  who  bid 
less  obtained  no  title.  So  it  is  com- 
petent for  the  owner  to  reserve  to 
himself  one  bid  or  to  employ  another 
to  bid  for  him,  but  he  must  give  fair 
notice  of  the  fact,  so  that  no  one  may 
be  misled  or  deceived  in  the  sale. 
Miller  v.  Baynard.  2  Houst.  (Del.) 
559,  83  Am.  Dec.  168. 

8  Bateman  on  Auctions,  114. 

<  "The  printed  conditions  under 
which  a  sale  by  auction  proceeds  can- 
not be  varied  or  contradicted  by 
parol  evidence  of  the  verbal  state- 
ments of  the  auctioneer  made  at  the 
time  of  sale,  without  it  be  for  the 
purpose  of  proving  fraud.     Powell  v. 

751 


Livius,  2  Cromp.  &  J.  411;  Slark  v. 
Highgate  Archway  Co.,  5  Taunt, 
792,  But  parol  evidence  that  is  not 
repugnant  to  the  printed  terms  of 
sale,  but  is  consistent  with,  and  ex- 
planatory of  them,  is  admissible; 
Cannon  v.  Mitchell,  2  Desaus,  Eq. 
321;  Wainwrightc.  Read.  1  Id  573; 
Lessee  of  Wright  &  Deklyne,  1  Pet. 
C.  C.  204."  Wagner,  J.,  in  Chou- 
teau V.  Goddin,  39  Mo.  229,  90  Am. 
Dec.  462.  So  as  between  seller  and 
purchaser,  evidence  is  admissible  that 
certain  of  the  conditions  were  waived. 
Mitchell  V.  Zimmerman,  109  Penn. 
St.  183,  58  Am.  Rep.  715.  And  see 
Rankin  v.  Matthews,  7  Ired.  (N.  C.) 
L.  286;  Satterfield  v.  Smith,  11  Id. 
60,  where  parol  evidence  of  what  the 
auctioneer  said  was  held  to  be  admis- 
sible to  explain,  add  to  or  vary  the 
written  terms  of  sale. 

»  Bush  t>.  Cole.  28  N.  Y.   261,  84 
Am.  Dec.  343,  where  it  is  held  that 


R  896.  THE   LAW    OF    AGENCY.  [Book  Y. 

§  896.  To  accept  the  Bid.  The  auctioneer  has,  of  course, 
implied  authority  to  accept  the  bid  most  favorable  to  the  seller, 
where  the  sale  is  made  without  reserve,  and  to  strike  the  prop- 
erty down  to  the  purchaser,  for  this  is  the  very  purpose  for 
which  he  was  employed.  The  nature  of  an  auction  sale  implies, 
where  no  other  terms  are  prescribed,  that  the  property  is  to  be 
sold  to  the  person  making  the  most  favorable  offer,  and  the  auc- 
tioneer cannot  therefore,  in  general,  refuse  bids.'  But  he  is  not 
required  to  accept  the  bid  of  an  irresponsible  or  insufficient  bid- 
der, or  of  a  bidder  who  refuses  or  neglects  to  comply  with  the 
terms  of  the  sale.*  So  he  should  refuse  bids  from  persons  labor- 
ing under  a  legal  incapacity,  as-  infants,  lunatics  and  drunken 
persons,  and  persons  standing  in  a  fiduciary  capacity  to  the 
property. 

§  897.  To  receive  the  Price.  The  auctioneer  has  implied 
authority,  in  the  absence  of  a  known  limitation  to  the  contrary, 
to  receive  so  much  of  the  purchase  price  of  personal  property 
sold  by  him  as,  by  the  terms  of  the  sale,  is  to  be  paid  down, 
although  the  name  of  the  owner  be  disclosed.*  But  this  power 
to  receive  payment  is  limited  to  that  which  is  to  be  made  at  the 
time  of  the  sale.  So  it  is  not  exchisive,  and  a  payment  by  the 
purchaser  to  the  owner  would  be  good.  In  the  case  of  real 
estate,  the  auctioneer  has  no  general  authority  to  receive  the 
purchase  price,  which  is  not  usually  paid  until  the  execution  and 
delivery  of  the  deeds  by  the  owner;  but  he  may  receive  so  much 
of  the  purchase  price  and  such  deposits  as  are,  by  the  terms  of 
the  sale,  to  be  paid  down."  He  has  however  no  implied  author- 
ity to  receive  anything  but  cash  in  payment.  He  cannot  barter, 
trade  or  receive  other  property  in  payment ;  nor  can  he  accept 
depreciated  or  worthless  bills.*     Neither  may  he,  without  express 

auctioneers  selling  real  estate  for  less  *  Thompson    v.    Kelly,   101    Mass. 

than  the  price  fixed  by  the  principal,  291,   3  Am.    Rep.    353;   Williams  v. 

do  not  bind  him.  Millington,  1   H.    Bl.    81;  Coppin  v. 

I  Bateman  on  Auctions,  122.  Walker,  7  Taunt.  237. 

»  Hobbs  V.  Beavers,  2  Ired.   142,  52  »  Sykes  v.  Giles,  5  M.  &.  W.  645 ; 

Am.  Dec.  500;  Den  v.  Zellers,  7  N,  Thompson  v.  Kelly,  supra;  Johnson 

J.  L.  153;  Michel  v.  Kaiser,   25  La.  v.  Buck,  35  N.  J.  L.338,  10  Am.  Rep. 

Ann.  57;    Murdock's  Case,  2  Bland  243. 

(Md.)  Ch.  461,  20  Am.  Dec.  381.  •  This  rule  stands  upon  the  same 

8  Bateman  on  Auctions,   123;  Kin-  footing  as  that  which  governs  agents 

ney  v.  Showdy,  1  Hill  (N.  Y.)  544.  generally  who  are  authorized  to  sell 

752 


Chap.  II.]  AUOTIONEEES.  §  899. 

authority,  receive  checks,  notes  or  bills  of  exchange  in  pay- 
ment.* 

§  898.  To  sue  in  his  own  Name  for  the  Price.  In  the  case  of 
personal  property,  an  auctioneer  employed  to  sell  may  ordinarily 
maintain  an  action  in  his  own  name  for  the  price,  or  for  the 
recovery  of  the  goods  if  the  conditions  of  the  sale  be  not  com- 
plied with.'  This  doctrine,  says  Judge  Wells,  stands  upon  the 
right  of  the  auctioneer  to  receive,  and  his  responsibility  to  the 
principal  for  the  price  of  the  property  sold,  and  his  lien  thereon 
for  his  commissions,  which  give  him  a  special  property  in  the 
goods  intrusted  to  him  for  sale,  and  an  interest  in  the  proceeds. 

In  case  of  real  estate  he  can  have  no  such  special  property,  and 
would  not  ordinarily  be  entitled  to  receive  the  price.  But  when 
the  terras  of  his  employment,  and  the  authorized  sale  contem- 
plate the  payment  of  a  deposit  into  his  hands  at  the  time  of  the 
auction,  and  before  the  completion  of  the  sale  by  the  delivery  of 
the  deed,  he  stands,  in  relation  to  such  deposit,  in  the  same  posi- 
tion as  he  does  to  the  price  of  personal  property  sold  and 
delivered  by  him.  He  may  receive  and  receipt  for  the  deposit; 
his  lien  for  commissions  will  attach  to  it,  and  we  see  no  reason 
why  he  may  not  sue  for  it  in  his  own  name,  whenever  an  action 
for  the  deposit,  separate  from  the  other  purchase-money,  may 
become  necessary.*  The  auctioneer's  right  to  sue  is  subject  to 
the  same  set-olf  which  could  be  made  if  the  action  were  brought 
by  the  owner.* 

§  899.  None— To  delegate  his  Authority.  Like  other  agents 
in  whom  a  personal  trust  and  confidence  are  reposed,  the  auc- 
tioneer has  no  authority  to  delegate  to  another  the  sale  of  the 
property  entrusted  to  him  to  sell.*    But  this  rule  does  not  require 

or  receive  payment  for  their  princi-  Young,  16  Johns.  (N.  Y.)  1;  Bellerw. 

pals.  Block,  19  Ark.  5G6;  Minturn  v.  Main, 

'  Broughton  e.  Silloway,  114  Mass.  7  N.  Y.  220;   Flanigan  v.  CruU,   53 

71,  19  Am.  Rep.  312;  Williams  v.  Ev-  111.  352. 

ans,  L.  R.  1  Q.  B.  352;  Sykes^.  Giles,  »  Wells,  J.,  in  Thompson  v.  Kelly, 

5  M.  &  W.  645;  Taylor  v.  Wilson,  11  supra.     See  also  Johnson  v.  Buck,  35 

Mete.   (Mass.)  44.     May  take  check  N.  J.  L.  338,  10  Am.  Rep.  243. 

for  deposit  where  that  is  the  custom.  *  Coppin  v.    Craig,    7  Taunt.  243; 

Farrer  v.  Lacy,  25  Ch.  Div.  636.  Grice  v.  Kenrick,  L.  R.  5  Q.  B.  340. 

«  Thompson    v.    Kelly,    101    Mass.  s  Stone  v.  State,  12  Mo.  400;  Com- 

291.  3  Am.  Rep.  353 ;  Tyler  v.  Free-  mon wealth    v.    Harnden,    19    Pick, 

man,   3  Gush.  (Mass.)  261;  Hulse  v.  (Mass.)  482;  Blore  v.   Sutton,  3  Mer 

48  753 


8  900.  THE    LAW    OF    AGENCY.  [Book  Y. 

him  to  perform,  in  person,  all  of  the  mechanical  or  ministerial 
duties  connected  with  the  sale,  and  he  may  lawfully  employ 
another  person  to  make  the  outcry  or  wield  the  hammer  under 
his  immediate  direction  and  supervision.' 

§  900.  Nono— To  sell  on  Credit.  Sales  at  auction  are  pre- 
sumed to  be  for  cash  in  hand  at  the  completion  of  the  sale,  and 
an  auctioneer  has,  therefore,  in  the  absence  of  a  custom  to  the 
contrary,  no  implied  power  to  give  to  the  purchaser  a  term  of 
credit  upon  the  property  purchased  by  him.* 

§  901.  None— To  rescind  Sale.  The  auctioneer's  duty  is  to 
sell  only,  and  upon  the  completion  of  the  sale  his  authority  ceases. 
A  bidder  who  desires  to  withdraw  his  bid  may  do  so  by  publicly 
announcing  that  fact  at  any  time  before  it  is  accepted  ;  but  after 
it  is  accepted,  he  has  no  right  to  withdraw  it  without  the  consent 
of  the  owner,  and  the  auctioneer  has  no  implied  authority  to  per- 
mit him  to  do  so.' 

§  902.  None— To  sell  atprivate  Sale.  An  auctioneer  employed 
to  sell  at  auction  has  no  implied  authority  to  sell  at  private  sale,* 
and  it  makes  no  difference  that  he  acted  in  good  faith  and  sold 
the  property  for  more  than  the  minimum  price  fixed  by  the 
owner.' 

§  903.  None— To  bid  himself.  In  accordance  with  the  well 
settled  principle  that  an  agent,  authorized  to  sell  for  his  princi- 
pal, can  not,  without  the  principal's  consent,  sell  to  himself,  it  is 
clear  that  an  auctioneer  has  no  implied  authority  to  bid  for  and 
purchase  the  property  he  is  employed  to  sell,  either  for  himself 
or  any  other  person,  nor  can  he  authorize  any  other  person  to  bid 
and  purchase  for  him,  either  directly  or  indirectly.  Such  a  pur- 
chase is,  therefore,  not  binding  upon  the  seller.*    As  is  well  said 

237;  Coles  «.  Trecothick,  9  Ves.  Jr.  •Nelson  v.  Aldridge.  2  Stark.  435; 

234;  Wolf  ».   Van  Metre,    27  Iowa,  Boinest  «.  Leignez,  2  Rich.  (S.  C.)  L. 

848;  Singer  Mnfg  Co.  e.  Chalmers,  2  464. 

Utah,  542.  *  Wilkes  v.   Ellis,   2  H.    Bl.   655; 

»  c'ommouwealth    e.     Harnden,  Marsh  v.  Jelf,  3  Fost.  &  F.  234;  Dan- 

8«pra;  Poree».  Bonneval,  6La.  Ann.  iel  v.   Adams,   Amb.   495;    Beton  «. 


886 


Slade,  7  Ves.  Jr.  276. 


2  Williams  c.Millington,  1 H.  Bl.  81;  See  e  converso  Towle  v.  Leavitt,  23 

Williams  v.  Evans,  L.    R.    1    Q.   B.  N.  H.  360,  55  Am.  Dec.  195. 

352-  Sykes  v.  Giles,  5  M.  &.  W.  645;  •  Daniel  v.  Adams,  supra. 

Townes  v.  Birchett.  12  Leigh  (Va.)  •  Brock  c.  Rice,  27  Gratt.(Va.)812; 

Yj^  Randall  v.  Lautenberger,  —  R.  I.  — , 

754 


Chap.  II.]  AUCTIONEERS.  §  *JU5. 

by  Staples,  J. :  "  It  is  impossible  with  good  faith  to  combine 
the  inconsistent  capacities  of  seller  and  buyer,  crier  and  bidder, 
in  one  and  the  same  transaction.  If  the  *  *  *  auctioneer 
faithfully  discharges  his  duties,  he  will,  of  course,  honestly 
obtain  the  best  price  he  can  for  the  property.  On  the  other  hand, 
if  he  undertakes  to  become  the  purchaser  for  himself,  or  for 
another,  his  interest  and  his  duty  alike  prompt  him  to  obtain  the 
property  upon  the  most  advantageous  terms.  There  is  an  irre- 
concilable conflict  between  the  two  positions.'" 

§  904.  None— To  warrant  Quality.  In  the  absence  of  a  cus- 
tom to  give  such  a  warranty,  an  auctioneer  has  no  implied  author- 
ity to  warrant  the  quality  of  the  property  sold  by  him.*  Cus- 
tom may,  however,  confer  such  a  power,  and,  in  general,  the 
Bame  warranties  will  be  implied  as  would  be  implied  from  a  simi- 
lar sale  of  the  same  property  by  the  owner  himself,  as  in  the  ease 
of  a  sale  by  sample. 

4.  Auctioneer' 8  Duties  and  Liabilities  to  Principal. 
§  905.  Bound  for  reasonable  Skill  and  Diligence.  Like  the 
attorney,  an  auctioneer  holds  himself  out  to  the  public  as  one 
qualified  to  perform  the  duties  of  the  calling  which  he  professes ; 
and  the  measure  of  the  undertaking  in  the  two  cases  is  substan- 
tially the  same.  The  auctioneer,  therefore,  is  bound  to  possess 
and  exercise  a  reasonable  degree  of  skill  and  diligence  not  only 
in  obtaining  advantageous  bids,  but  in  so  conducting  as  to  secure 
the  benefit  of  them  to  his  employer,  and  if  he  fails  of  this,  he  is 
liable  to  his  employer  for  an  injury  occasioned  thereby.*  But, 
like  the  attorney,  he  is  not  charged  with  infallibility,  nor  held  lia- 
ble for  a  mistake  in  a  case  where  a  reasonable  doubt  may  be  enter- 
tained.* 

13  Atl.  Rep.  100,  5  New  Eng.  Rep.  See  Dodd  v.  Farlow,  11  Allen 
779;  Hood  f».  Adams,  128  Mass.  207.  (Mass.)  426.  87  Am.  Dec.  726. 
One  who  acts  simply  as  auctioneer  •  Denew  v.  Daverell,  3  Camp.  451. 
or  crier  for  an  officer  at  an  auction  It  is  the  duty  of  the  auctioneer  to  call 
gale  under  a  writ,  the  officer  being  for  the  name  of  the  bidder  and  enter 
present,  may  bid  upon  the  property.  the  necessary  memorandum  to  corn- 
Swires  «.  Brotherline,  41  Penn.  St.  plete  the  sale,  and  if  he  fails  to  do 
135,  80  Am.  Dec.  601.  this  and  his  employerloses  the  benefit 
*  In  Brock  v.  Rice,  supra.  of  the  bid,  the  auctioneer  is  liable  for 
«  Blood  V.  French,  9  Gray  (Mass.)  the  loss.  Townsend  v.  Van  Tassel,  8 
197:  The  Monte  AUegre,  9  Wheat.  Daly  (N.  Y.)  261. 
(U.  S.)  647.  *  An  auctioneer  was  held  not  liable 

755 


§  906.  THE    LAW    OF    AGENCY.  [Book  V. 

§  906.  To  obey  Instructions.  It  is  the  duty  of  the  auctioneer 
to  observe  the  reasonable  instructions  of  the  owner  as  to  the  time, 
manner  and  terms  of  sale,  and  if  he  sells  in  violation  of  these 
instructions,  he  is  responsible  to  the  owner  for  a  loss  resulting 
therefrom.*  Thus  it  is  entirely  competent  for  the  owner  to  fix 
the  price  below  which  the  goods  shall  not  be  sold,  and  it  is  the 
duty  of  the  auctioneer  to  observe  this  limit  either  by  publicly 
reserving  to  himself  one  bid  for  the  owner,  or  by  stating  the 
limitation  and  starting  the  bids  at  the  price  fixed.  For  a  violation 
of  this  duty,  the  auctioneer  is  liable  to  the  owner  for  a  loss  sus- 
tained.* 

§  907.  To  account  for  Proceeds.  It  is  the  duty  of  the  auc- 
tioneer, like  other  agents,  to  account  to  his  employer  for  the  pro- 
ceeds of  the  goods  sold  by  him.'  He  has  a  lien  upon,  and  may 
deduct  from,  the  proceeds  his  commissions  for  making  the  sales, 
and  his  reasonable  and  proper  costs  and  charges,  as  the  expenses 
of  advertising,  storing,  insuring  and  caring  for  the  goods,  where 
these  expenses  are  not  covered  by  his  commission.* 

§  908.  To  take  Care  of  Goods.  An  auctioneer  is  not  an  insurer 
of  the  safety  of  the  goods  entrusted  to  him  for  sale,  but  he 
is  under  obligation  to  keep  them  with  ordinary  and  reasonable 
care.*  In  this  respect  he  stands  upon  the  same  footing  as  any 
other  bailee  for  hire. 

§  909.  To  sell  for  Cash  only.  As  has  been  seen,  an  auction- 
eer has  no  implied  authority  to  give  credit  or  to  receive  anything 
but  cash  in  payment  for  the  property  sold,  and  this  limitation 
upon  his  authority  correlatively  defines  his  duty  to  his  employer.* 

for  a  loss  occasioned  by  his  failure  to  »  Tripp  e.  Barton,    13    R.I.   130, 

comply  with  the  requirements  of  the  Harington  v.    Hoggart,   1  B.  &  Ad. 

statute  which  had  but  recently  been  577. 

passed  and  was  of  doubtful  construe-  *  Harlow  v.  Sparr,  15  Mo.  184;  Rus 

tion  and  had  not  received  judicial  in-  sell  v.  Miner,   35  Hun  (N.   Y.)  114; 

terpretation.      Hicks  v.  Slinturn,  19  Carpenter  v.  Le  Count,  23  Id.  106. 

Wend.  (N.  T.)  550.  ■  Davis  v.    Garrett,    6   Bing.    716; 

>  Guerreiro  v.  Peile,  3  B.  &  Aid.  Maltby  v.  Christie,  1  Esp.  340.     If  he 

616;  Bexwell  v.  Christie,  Cowp.  395;  agrees  to  insure  he  must  do    so.  m 

Russel  V.   Palmer,  2  Wils.  325;  Wil-  good  companies,  or  give  his  principal 

kinson  v.  Campbell,  1  Bay.  (8.  C.)  169.  reasonable  notice  of  his  failure,  that 

«  Steele  v.  Ellmaker,  11  Serg.  &  R.  he  may  insure  it  himself.     Callander 

{Penn.)86;  Wolfe  D.  Luyster,  1  Hall  «.    Oelrichs,     5    Bing.    N.     C.     58; 

(N.  Y.)    146;    Williams   v.    Poor,   3  Shoenfeld  v.  Fleisher,  73  111.  404. 

Cranch  (U.  S.  C.  C.)  251.  •  See  a7ite,  %%  892  and  895. 

756 


Chap.  II.]  ATJonoNKEBS.  §  913. 

If,  notwithstanding  this  duty,  the  auctioneer  gives  credit,  or 
receives  in  payment  that  which  is  not  cash  in  hand,  and  the  em- 
ployer thereby  suffers  loss,  the  auctioneer  is  responsible.* 

§  910.  To  sell  to  third  Parties  only.  It  is  likewise  the  duty 
of  the  auctioneer  to  sell  to  third  persons  only,  and  not  to  buy  for 
himself  directly  or  indirectly.*  Such  a  purchase,  as  has  been  seen, 
is  not  binding  upon  the  owner,  and  he  may  recover  from  the 
auctioneer  the  property  so  misappropriated,  or  may  hold  him  lia- 
ble in  trover  or  other  proper  action.' 

§  911.  To  sell  in  Person.  As  has  been  also  seen,  the  auction- 
eer has  no  implied  authority  to  delegate  his  powers,  but  should 
perform  them  in  person,  except  so  far  as  they  involve  purely 
ministerial  or  mechanical  duties.*  For  injuries  resulting  from 
such  an  unlawful  delegation,  the  auctioneer  is  legally  responsible. 

§  912.  To  disclose  his  Principal.  An  auctioneer,  like  other 
agents,  should  disclose  his  principal  and  contract  in  his  name.* 
So  if,  while  a  sale  is  going  on  of  property  as  the  property  of  one 
person,  the  property  of  another  is  also  put  up  for  sale,  this  fact 
should  be  announced  by  the  auctioneer,  as  without  it  a  sale  of  the 
property  of  the  latter  person  would  not  be  binding  upon  one  who 
bought  it  supposing  it  to  be  the  property  of  the  former.' 

5.  Auctioneer's  Duties  and  Liabilities  to  Third  Persona. 

§  913.  Liable  where  he  conceals  Principal.  An  auctioneer 
who,  at  the  time  of  the  sale,  discloses  the  name  of  his  principal, 
and  sells  as  his  agent,  incurs,  while  keeping  within  the  limits  of 
his  authority,  no  personal  liability  to  the  purchaser  upon  the  con- 
tract of  sale :  ^  but,  on  the  other  hand,  the  rule  is  well  settled  that 
an  auctioneer  who  sells  without  disclosing  his  principal's  name  is 
personally  liable  upon  the  contract,  and  the  purchaser  may  hold 
him  personally  responsible  for  its  completion.* 

>  Williams  v.  Millington,  1  H.  Bl.  Stark,  434;  Coppin  v.  Craig,  7  Taunt. 

88.  243. 

2  See  ante,  §  898.  ''  Hansou  c.  Roberdeau,  Peake's,  N. 

»  See  ante,  §  461.  P.  120. 

<  See  ante,  §  899.  *  Hanson     «.     Roberdeau,     supra; 

«  See  following  section.  Jones  v.  Littledale,  6  Ad.  &  El.  486; 

« Thomas    t>.   Kerr,   3    Bush  (Ky.)  Franklyn  v.    Lamond,  4  C.  B.    637; 

619,   96    Am.  Dec.  262;    Bexwell  v.  Mills  «  Hunt,  20  Wend.  (N.  Y.)  431; 

Christie,  1  Cowp.  395;  Hill  v.  Gray,  1  Thomas  v.  Kerr,  3  Bush  (Ky.)  619,  96 

Y57 


§  914.  THE   LAW   OF   AGENCY.  [Book    Y. 

Thus  where  auctioneers  struck  off  property  of  an  undisclosed 
principal  for  a  less  sum  than  they  were  authorized  to  sell  it  for, 
thereby  failing  to  bind  the  principal,  it  was  held  that  the  pur- 
chaser could  recover  of  the  auctioneers  the  deposit  he  had  made, 
and  the  auctioneers'  fees,  with  interest ;  and  that  if  they  knew 
they  were  not  authorized  so  to  sell,  the  purchaser  could  recover 
also  what  the  premises  were  worth  over  and  above  the  price  bid 
therefor.  '  So  where  an  auctioneer  acting  for  an  undisclosed 
principal,  advertised  a  sale  to  be  "  without  reserve,"  but  on  the 
sale  permitted  the  owner  of  the  property  to  bid  over  the  highest 
bid  offered  by  other  bidders,  and  struck  the  property  off  to  him, 
it  was  held  that  the  next  highest  bidder  could  maintain  an  action 
against  the  auctioneer,  for  a  breach  of  his  contract  to  sell  "  without 
reserve."  * 

So  where  an  auctioneer  sells  property  without  disclosing  the 
principal's  name  and  the  purchaser  is  afterwards  divested  by  a 
superior  title,  he  may  recover  the  purchase  money  of  the  auc- 
tioneer.' 

§  914.  liable  where  he  exceeds  his  Authority.  An  auction- 
eer, like  any  other  agent,  may  make  himself  personally  liable  to 
third  persons  for  injuries  which  they  sustain  by  reason  of  his  fail- 
ure to  possess  the  authority  which  he  assumed  to  exercise.  The 
general  rules  which  govern  this  question  have  been  previously 
considered  and  it  is  unnecessary  to  repeat  them  here.* 

In  pursuance  of  those  rules,  an  auctioneer  would  be  held  to  an 
implied  warranty  of  his  authority  to  sell  as  he  does.  If  he  sells 
the  goods  as  the  goods  of  a  named  principal,  a  warranty  would 
be  implied  that  the  goods  were  tiiose  of  the  principal  named  and 
that  the  auctioneer  was  authorized  by  him  to  sell  them.  A  fort- 
iori is  he  liable  where  he  makes  an  express  warranty  of  his  prin- 
cipal's title.' 

That  he  is  charged  with  the  liability  of  a  principal  where  he 

Am.  Dec.  262;  Schell  «.  Stephens,  50  •  Seemuller  e.  Fuchs,  mpra. 

Mo.  375;  Seemuller  ».  Fuchs.  64  Md.  *  See    ante,    542,    et  seq.     See  also 

217,  54  Am.  Rep.  766;  Bush  v.  Cole,  Warlow  ®.  Harrison,  1  El.  «fe  El.  309, 

28  N.  Y.  261,  84  Am.  Dec.  343.  cited  in  note  3  to  §  917,  <post. 

»  Bush  «.  Cole,  mpra.  »  Dent  e.  McGrath,  3  Bush    (Ky.) 

» Warlow  «.    Harrison,    1  Ellis  &  174. 
Ellis,  295,  on  appeal,  Id.  309. 

758 


Chap.  II.]  AUCTIONEERS.  §  916. 

sells  without  disclosing  the  real  principal,  has  been  seen  in  the 
preceding  section. 

§  915.  Liability  for  selling  Property  of  Stranger.  An  auc- 
tioneer who  receives  and  sells  stolen  property  is  liable  to  the  true 
owner,  as  for  a  conversion,  although  he  acted  in  good  faith,  and 
received  the  property  in  the  usual  course  of  trade.* 

So  an  auctioneer  would  undoubtedly  be  liable  as  for  a  conver- 
sion who,  having  received  property  for  sale  from  one  not  having 
authority  to  cause  it  to  be  sold,  proceeded  to  sell  it  or  to  pay  over 
tlie  proceeds  after  notice  of  the  rights  of  the  true  owner,  and 
without  his  authority ;  *  and  it  has  been  held  that  an  auctioneer 
who  in  good  faith  received  and  sold  property  for  one  whom  he 
supposed  to  have  the  right  to  direct  the  sale,  but  who  in  fact 
had  no  such  right,  was  guilty  of  a  conversion.*  But  it  has  also  been 
held  that  an  auctioneer  who,  in  good  faith,  has  advanced  money 
upon  goods  received  from  one  who  had  fraudulently  purchased 
them,  would  be  protected  as  against  the  owner,*  and  his  cred- 
itors. • 

§  916,  Not  liable  for  not  holding  Auction  as  advertised. 
An  auctioneer  who  has  advertised  that  he  will  sell  property  at 
auction  at  a  certain  time  and  place,  is  not  liable,  in  the  absence  of 
fraud,  to  those  who  may  incur  expense  or  put  themselves  to 
trouble  to  attend,  for  not  offering  to  sell  the  property  at  auction 
in  accordance  with  the  advertisement,  although  no  notice  had 
been  given  that  the  property  would  be  withdrawn.*  No  such 
notice  is  required. 


•  Rogers  v.  Huie,  1  Cal.  429,  54  Am.  84;  Montieth  v.  Printing  Co.,  16  Mo. 

Dec.    300.     (But  see  s.  c.  2  Cal.  571)  App,  460. 

Hoffman  v.  Carow,  20  Wend.  (N.  Y.)  •  Harris  «.  Nickerson,  L.  R.  8  Q.  B. 

21,  8.  c.  22  Id.  285.     See  also  Koch  v.  286,  5  Eng.  Rep.  (Moak)  238.     "  H'lie 

Branch,  44  Mo.  542;  Morris  c.  Hall,  plaintiff  says,"  remarked  Blackburn 

41  Ala.  511.  J.   "inasmuch  as  I  confided    in  the 

•Milliken  v.  Hathaway  (Mass.)  19  defendant's  advertisement,  and  came 

N.  E.  Rep.  16.  down  to  the  auction  to  buy  the  furni- 

•Farebrother  «.  Ansley,   1  Camp.  ture  (which  it  is  found  as  a  fact  he 

343;  Adamson  v.  Jarvls,  4  Bing.  66.  was  commissioned  to  buy)  and  bave 

But    see   Roach  e.   Turk,  9   Heisk.  had  no  opportunity  of  buying,  I  am 

(Tenn.)  708,  24  Am.  Rep.  360.  entitled  to  recover  damages  of   the 

« Higgins  V.  Lodge,  68  Md.  229,  6  defendant   on    the    ground  that  the 

Am.  St.  Rep.  437.  advertisement    amounted    to  a   con- 

« Lewis  «.    Mason,   94   Mo.    551;  tract  by  the  defendant  with  anybody 
Baugh  V.  Kirkpatrick,  54  Penn.  St. 

759 


§917. 


THE   LAW   OF   AGENCY. 


[Book  V.\ 


6.  Auctioneer's  Rights  against  his  Principal. 

§  917.  Compensation— Beimbiirsemeiit— Indemnity.  An  auc- 
tioneer has  an  undoubted  right  to  recover  compensation  for  his 
services,  according  to  the  rate  fixed  by  statute,  or  the  contract  of 
the  parties,  or  by  custom,  and,  where  none  of  these  modes  apply, 
by  a  quantum  meruit}  He  is  also  entitled  to  be  reimbursed  for 
his  reasonable  and  proper  costs  and  charges,  incurred  in  the 
execution  of  the  agency.*  He  is  also  entitled  to  be  indemnified 
by  the  principal  against  losses  sustained  or  liabilities  incurred,  in 
the  course  of  the  performance  of  his  undertaking,  while  he  was 
acting  in  good  faith  and  without  negligence.'  These  results 
grow  out  of  well  settled  principles  applicable  to  other  agents, 
which  have  been  previously  considered. 


who  should  act  upon  it,  that  all  the 
things  advertised  would  be  actually 
put  up  for  sale,  and  that  he  would 
have  an  opportunity  of  bidding  for 
them  and  buying.  This  is  certainly 
a  startling  proposition,  and  would  be 
excessively  inconvenient  if  carried 
out.  It  amounts  to  saying  that  any 
one  who  advertises  a  sale  by  publish- 
ing an  advertisement  becomes  respon- 
sible to  everybody  who  attends  the 
sale  for  his  cab  hire  or  travelling  ex- 
penses. As  to  the  cases  cited  in  the 
case  of  Warlow  ».  Harrison,  1  El.  & 
El.  295,  the  opinion  of  the  majority 
of  the  judges  in  the  Exchequer 
Chamber  appears  to  have  been  that 
an  action  would  lie  for  not  knocking 
down  the  lot  to  the  highest  hona  fde 
bidder  when  the  sale  was  advertised 
as  without  reserve;  in  such  a  case  it 
may  be  that  there  is  a  contract  to  sell 
to  the  highest  bidder,  and  that  if  the 
owner  bids,  there  is  a  breach  of  the 
contract.  *  *  *  In  the  present 
case,  unless  every  declaration  of  in- 
tention to  do  a  thing  creates  a  binding 
contract  with  those  who  act  upon  it, 
and  in  all  cases  after  advertising  a 
sale,  the  auctioneer  must  give  notice 
of  any  articles  that  are  withdrawn, 


or  be  liable  to  an  action,  we  cannot 
hold  the  defendant  liable." 

»  Harlow  v.  Sparr,  15  Mo.  184. 

«  Russell  t).  Miner,  25  Hun  (N.  T.) 
114;  Carpenter  v.  Le  Count,  22  Id. 
106. 

«  Warlow  V.  Harrison,  1  El.  &  El. 
809.  In  this  case  an  auctioneer  had 
advertised  to  sell  "without  reserve," 
but  before  the  property  was  struck 
down,  the  owner  interposed  a  bid  and 
it  was  struck  oflE  to  him.  The  auc- 
tioneer was  held  liable  to  the  highest 
bona  fide  bidder  as  for  a  breach  of  his 
contract  to  sell  "  without  reserve," 
but  it  was  also  held  that  he  was  enti- 
tled to  indemnity  from  his  principal. 
Said  Martin,  B.  at  p.  317:  "We 
entertain  no  doubt  that  the  owner 
may  at  any  time  before  the  contract 
is  legally  complete,  interfere  and 
revoke  the  auctioneer's  authority;  but 
he  does  so  at  his  peril;  and,  if  the 
auctioneer  has  contracted  any  liabil- 
ity in  consequence  of  his  employ- 
ment and  the  subsequent  revocation 
or  conduct  of  the  owner,  he  is  enti 
tied  to  be  indemnified." 

So  if  an  auctioneer  in  good  faith  had 
sold  property  of  a  third  person,  sup- 
posing it  to  be  his  principal's  who  had 


760 


Chap.  II.]  AU0TIONEEE8.  §  922. 

§  918.  Becoupment  of  Damages.  But  the  principal  may,  as 
in  other  cases,  recoup,  against  the  auctioneer's  claim  for  compen- 
sation, such  damages  as  he  may  have  sustained  by  reason  of  the 
auctioneer's  failure  in  the  performance  of  his  duty.* 

§  919.  Auctioneer's  Iiien.  An  auctioneer  has  a  special  prop- 
erty in,  and  a  lien  upon,  the  goods  of  his  principal  in  his  posses- 
sion, and  upon  the  proceeds  thereof  when  sold,  for  his  commis- 
sions and  charges.*  He  may  retain  his  commissions  and  charges 
from  the  proceeds  of  the  sale,'  or  he  may  maintain  an  action  for 
them  against  the  principal.* 

§  920.  Can  not  dispute  Principal's  Title.  An  auctioneer, when 
sued  for  the  price  of  goods  entrusted  to  him  to  be  sold,  can  not 
set  up  a  title  to  the  goods  in  himself  where  he  made  no  such 
claim  until  called  upon  for  the  proceeds.' 

7.  Auctioneer's  Bights  against  Third  Persons. 

§  921.  Kight  to  sue  Bidder.  The  auctioneer's  right  to  sue 
for  the  purchase  price,  and  to  recover  the  possession  of  the  goods 
when  the  conditions  of  sale  have  not  been  complied  with,  has 
been  already  considered  under  the  head  of  the  implied  authority 
of  the  auctioneer.* 

§  922.  Bight  to  sue  Wrong  doer.  The  auctioneer  has  such  a 
special  property  in  the  goods  in  his  possession,  as  will  entitle  him 
to  maintain  an  action  for  the  recovery  of  the  goods  or  their  value 
against  a  wrong  doer,  who  injures  or  converts  them.'    As  against 

directed  the  sale,  and  was  made  to  the  benefit  of  creditors  have  entrusted 

respond  in  damage,  he  would  be  en-  property  for  sale,  has  no  lien  upon 

titled  to  indemnity  from  the  princi-  the  proceeds  against   the  assignor's 

pal.     Farebrother  v.  Ansley,  1  Camp.  general     creditors,     the    assignment 

343;  Adamson  ».   Jarvis,  4  Bing.  66.  being  declared  to  be  void.     Hone  v. 

See  also  Allaire?).  Ouland,  2  Johns.(N.  Henriquez,  13  Wend.  (N.  Y.)  240,  27 

Y.)  Cas.  52;  Turner  v.  Jones,  1  Lans.  Am.  Dec.  204. 

(N.  Y.)  147;  Howe  v.  Buffalo,  &c.  R.  a  Harlow  v.  Sparr,  15  Mo.  184;  Suc- 

R.  Co.,  38  Barb.  (N.  Y.)  124;  Castle  v.  cession  of  Dowler,  29  La.  Ann.  437. 

Noyes,    14    N.    Y.  332;  Du^jdale  ©.  *  Robinson  ®.  Green,  3  Mete.  (Mass.) 

Lovering,  L.  R.  10  C.  P.  196,  12  Eng.  159. 

Rep.  316.  5  Osgood  v.  Nichols,  5  Gray  (Mass.) 

'  See  ante,  §  647.  420;   Hutchinson  v.  Gordon,  2  Har. 

s  Robinson  v.  Rutter,  4  EI.   &  B.  (Del.)  179. 

954;  Webb  v.  Smith,  30  Ch.  Div.  192.  «  See  ante,  §  898. 

An  auctioneer,  to  whom  assignees  for  t  Robinson  v.  Webb,  11  Bush  (Ky.) 

761 


§  923.  THE   LAW   OF    AGENCY.  [Book  V. 

a  mere  stranger,  he  could  recover  the  full  value  of  the  goods,  1  lut 
as  ao-ainst  the  owner  or  one  claiming  under  him,  he  could  recover 
only  to  the  extent  of  his  special  interest.^ 

8.     PrincipaVs  Rights  against  Thvrd  Persons. 

%  923.  To  recover  purchase  Price.  The  sale  is  made  of  the 
principal's  property  and  for  his  benefit,  and  he  has  therefore  the 
prior  right  to  recover  the  price  agreed  upon.'  Even  though  his 
name  was  not  disclosed,  he  has  the  right,  like  other  undisclosed 
principals,  to  interpose  before  payment  to  the  auctioneer,  and 
appropriate  the  proceeds  to  himself,  subject  to  any  off-set  which 
the  purchaser  has  in  good  faith  acquired  against  the  auctioneer, 
before  the  disclosure  of  his  principal.* 

But  if,  where  goods  are  being  sold  as  the  goods  of  A,  the  goods 
of  B  are  also  put  up  for  sale  without  notice  of  that  fact  to  the 
auctioneer  or  the  bidders,  a  person  who  buys  the  goods  of  B, 
supposing  them  to  be  goods  of  A,  may  on  being  apprised  of 
that  fact  repudiate  the  sale  and  B  can  not  thereafter  recover  the 
price  bid.* 

8  924.  Where  Bidder  refuses  to  complete  Purchase.  When 
the  bidder  to  whom  goods  have  been  struck  off,  refuses  to  com- 
plete his  purchase,  the  remedy  of  the  seller  is,  usually,  by  a  resale 
of  the  goods,  and  an  action  against  the  defaulting  bidder  for  the 
deficiency  and  the  costs  of  the  resale.'  But  in  such  a  case  the 
resale  must  have  been  fairly  conducted,  upon  proper  notice,  before 

464 ;  Pitzhugh  t».   Wiman,   9  N.  Y.  »  The  fact  that  one  sells  at  aaction 

559;  Beyer  v.  Bush,  50  Ala.  19;  Lewis  is  not  notice  that  he  is  not  selling  his 

c.  Mason,  —  Mo.  — ,  14  West,   Rep.  own  goods.     Schell  v.   Stephens,   50 

719.  Mo.  379.     See  ante,  §  773. 

«  See  ante,  §  765.     Where  a  sheriff  ♦  Thomas    v.  Kerr,   3  Bush  (Ky.) 

in  an  attachment  against  the  consignor  619,  96  Am.  Dec.  262. 

bad  taken  goods  from  the  possession  »  Boinest  v.  Leignez,  2  Rich.  (S.  C.) 

of  the  auctioneer,  who  thereupon  re.  L.  464;  Robinson  v.    Garth,    6  Ala. 

plevied   and  sold  them,  it  was  held  204,   41    Am.    Dec.    47;    Lam  kin  v. 

that  the  amount  of  the  auctioneer's  Crawford,  8  Ala.  153;  Johns  c.  Trick, 

recovery  should  be  measured  by  the  22  Cal.  511;  Humphrey  v.  McGill,  59 

sum  total  of  his  advancements,  com-  Ga.  649;  Coopers.  Borrall,  10  Penn. 

missions  and  charges,  and  that  the  St.  491 ;  Forster  v.  Hayman,  26  Penn. 

surplus    should  be  returned  to    the  St.    266;    Kelly  v.    Green,    63  Penn. 

sheriff.     Lewis  e.  Mason,  swpra.  St.   299;  Wilson  v.  Loring,  7  Mass. 

2  See  ante,  §§  897-898.  See  also  392;  PettiUo.  Ex  pari^.  80  N.  C.  50. 
g772. 

762 


Chap.  II.]  AU0TI0NEEB8.  §  925. 

the  bidders  have  departed,   and  npon  conditions  and  terms  the 
same  as,  or  no  more  onerous  than,  those  of  the  first  sale.' 

9.     Mights  of  Third  Persona  against  Principal. 

§  925.  Principal's  Liability  for  Auctioneer's  Acts.  The  lia- 
bility of  the  seller  for  the  acts  and  representations  of  the  auc- 
tioneer rests  upon  the  ordinary  principles  of  agency.  The 
auctioneer  is  usually  a  special  agent,  whose  general  powers  are 
clearly  defined.*  The  seller  may,  if  he  sees  fit,  confer  greater 
powers  upon  him,  but  where  he  does  not  do  so,  the  auctioneer's 
authority  is  limited  to  the  sale  of  the  property  for  cash^  and, 
where  the  sale  is  without  reserve,  to  the  highest  hidder,  and  to 
the  consummation  of  the  sale  by  the  proper  entries  and  the 
receipt  of  the  purchase  price.' 

Secret  limitations  upon  these  general  powers  can  not  alBFect  a 
purchaser  who  acts  in  good  faith  and  in  ignorance  of  them,  rely- 
ing upon  the  appearance  of  the  auctioneer's  authority ;  neither 
can  the  unwarranted  assumption  by  the  auctioneer  of  greater 
powers  affect  the  principal  who  has  given  them  no  color  of 
authority. 

§  926.  Liable  for  Breach  of  Contract.  A  purchaser  who  has 
complied  with  the  terms  of  sale  on  his  part,  may  recover  of  the 
seller  who  refuses  to  complete  the  contract,  such  damages  as  he 
has  sustained  by  the  refusal,  together  with  the  deposits  paid,  and 
interest  thereon  after  a  demand  and  refusal.* 

>  Riggs  f>.  Pursell,   74  N.  Y.  870;  •  The  auctioneer  cannot  bind  his 

Barnard  t>.  Duncan,  38  Mo.   170,  90  principal  by  selling  for  less  than  the 

Am.  Dec.  416;  Adams®.  McMillan,  price  limited  by  the  latter,  but  he  will 

7  Port.  (Ala.)  73;  Judge  v.  Booge,  47  be  liable  to  the  purchaser  for  breach 

Mo.  544;  Jones  v.  Null,  9  Neb.  254;  of  his  implied  warranty  of  authority. 

Hill  V.  Hill,  58  111.  239.  Bush  v.  Cole,  supra. 

s  Bush  V.  Cole,  28  N.  Y.  261,  84  «  Cockcroft  «.   Muller,    71  N.   Y. 

Am.  Dec.  343;  The  Monte  AUegre,  9  867. 
Wheat.  (U.  S.)  645. 

763 


THE    LAW    OF    AGENCY. 


[liook  V. 


OHAPTEK     III. 


OF  BROKERS. 


I.  Definitions  and  Divisions. 

§  927.  Brokers.     In  general. 

928.  Different  Kinds  of  Brokers. 

929.  Bill  and  Note  Brokers. 

930.  Exchange  Brokers. 
9.31.  Insurance  Brokers. 

932.  Mercliandise  Brokers. 

933.  Pawnbrokers. 

934.  Real  Estate  Brokers. 

935.  Ship  Brokers. 

936.  Stock  Brokers. 

II.  Appointment  and  Termination. 

937.  Appointed  like  other  Agents. 

938.  How  Authority  terminated. 

III.  Implied  Powers  of  Brokers. 

939.  In  general. 

940.  How  affected  by  Usage. 

941.  Usual  and  necessary  Powers. 
943.  Effect  of  his  Instructions. 

943.  Acting  for  both  Parties. 

944.  Cannot  delegate  his  Powers. 

945.  Usually  must  act  in  the  Name 

of  his  Principal. 

946.  Implied  Power  to  fix  Price. 

947.  May    sell    with    Warranty  — 

When. 

948.  When  may  sell  on  Credit. 

949.  No  Authority  to  receive  Pay- 

ment. 

950.  No  Authority  to  rescind    or 

arbitrate. 

IV.  Duties   and    Liabilities   to 

Principal. 

951.  Reasonable  Skill  and  Diligence 

required. 

952.  Fidelity  to  his  Principal. 

953.  Same     Subject  —  Acting    for 

both  Parties. 

954.  Duty  to  obey  Instructions. 


§  955.  Duty  to  keep  and  render  Ac* 
counts  and  pay  Proceeds. 

V.  Duties    and    Liabilities    to 

Third  Persons. 

.  956.  Not  liable  when  Principal  dis- 
closed. 

957.  Liable  when    Principal    con- 

cealed. 

958.  Liable    when     he     expressly 

charges  himself. 

959.  Liable  when  he  acts  without 

Authority. 

960.  Liability  for  Money  received. 

961.  When  guilty  of  Conversion. 

VI.  Rights   op    Broker  against 

Principai.. 

1.  Right  to  Compensation. 

962.  Entitled  to  Compensation. 

963.  How  amount  determined. 

964.  Broker  must  show  Employ- 

ment. 

965.  Broker  must  have  performed 

Undertaking. 

966.  Same  Subject  —  Real  Estate 

Brokers, 

967.  Same  Subject  —  Not  defeated 

—  how. 

968.  Same    Subject  —  Revocation 

of  Authority, 

969.  Employment  of  two  or  more 

Brokers. 

970.  Broker  to  effect  Loan, 

971.  Broker  to  effect  Exchange, 

972.  Cannot      have      Commissions 

from  both  Parties. 

973.  How  in  case  of  mere  Middle- 

man. 

974.  No  Compensation  when  Un- 

dertaking illegal. 


764 


Chap.  III.] 


BROKERS. 


928. 


975.  How  affected  by  Misconduct. 

976.  How  when  not  licensed. 

t.  Right  to  Reimbursement. 

977.  Entitled  to  Reimbursement. 

978.  How,  when  Undertaking  not 

performed. 

S.  Right  to  a  Lien. 

979.  No  general  Lien. 

980.  Liens  in  Special  Cases  —  In- 

surance Brokers. 

981.  No  Lien  except  for  Debt  due 

from  Principal. 


VIT.   Rights   of  Broker    against 
Third  Persgnb. 
983.  In  general,  no  Right  of  Action 
on  Contracts. 

983.  When  he  may  sue. 

VIII.  Rights  op  Principai.  against 

Third  Persons. 

984.  Same  as  in  the  other  cases  of 

Agency. 

IX.  Rights     of   Third     Person 

AGAINST  Principal. 

985.  Same    as  in    other   cases    of 

Agency. 

986.  No  Set-off  of  Broker's  Debts. 


DEFINITIONS    AND   DIVISIONS. 

§  927.  Brokers— In  general.  A  broker  has  been  defined,  in 
the  opening  chapter  of  the  work,  to  be  one  whose  occupation  it 
is  to  bring  parties  together  to  bargain,  or  to  bargain  for  them,  in 
matters  of  trade,  commerce  or  navigation.  As  has  been  there 
stated,  he  differs  from  an  auctioneer  in  that  he  has  no  special  prop- 
erty in  the  goods  which  he  may  be  authorized  to  sell ;  that  he 
must  sell  them  in  the  name  of  the  principal,  and  that  his  sales 
are  private  and  not  at  auction.  He  ordinarily  receives  a  com- 
pensation or  commission,  usually  called  brokerage,  but  he  may 
also  serve  gratuitously.  He  differs  from  a  factor,  also,  in  that  he 
does  not  ordinarily  have  the  possession  of  the  property  which  he 
may  be  employed  to  sell,  and  that  his  contracts  are  always  made 
in  the  name  of  his  employer.  As  will  be  seen,  he  is  primarily 
the  agent  of  the  first  person  who  employs  him,  and  he  can  not 
without  the  full  and  free  consent  of  both,  be,  throughout  the 
transaction,  the  agent  of  both  parties.  Without  such  consent,  he 
can  only  act  as  the  agent  of  the  other  party  when  the  terms  of 
the  contract  are  fully  agreed  upon  between  the  principals,  and  he 
is  instructed  to  close  it  up.* 

§  928.  Different  Kinds  of  Brokers.  Brokers  are  of  many 
kinds,  according  to  the  particular  class  of  transaction  in  which 
they  engage.     Thus  there  are  money-brokers,  stock-brokers,  ship- 

*  8ee  ante  %  18,  where  other  definitions  and  distinctions  are  referred  to. 

766 


§  929.  THE    LAW   OF    AGENCY.  [Book  Y. 

brokers,  bill-brokers,  insurance-brokers,  real  estate-brokers,  pawn- 
brokers, and  general  merchandise  brokers, ' 

§929.  Bill  and  Note-Brokers.  "Bill  and  note  brokers  nego- 
tiate the  purchase  and  sale  of  bills  of  exchange  and  promissory 
notes."  • 

Such  a  broker,  like  others,  who  discloses  his  principal  and  con- 
tracts  in  his  name  incurs  no  personal  liability,  while  acting  with- 
in the  limits  of  his  authority.*  Where  such  a  broker,  however, 
does  not  disclose  his  principal,  he  is  himself  liable  as  principal  to 
those  with  whom  he  deals,  and  where,  under  such  circumstances,  he 
sells  negotiable  paper,  he  will  be  held  to  an  implied  warranty  not 
only  of  his  authority  to  sell  it,  but'  also  that  the  signatures  of  all 
the  prior  parties  to  it  are  genuine,*  although  if  he  does  not  indorse 
it  or  otherwise  assume  responsibility  for  its  payment,  he  does  not 
warrant  their  solvency.* 

§  930.  Exchange-Brokers.  "  Exchange  brokers  negotiate  bills 
of  exchange  drawn  on  foreign  countries,  or  on  other  places  in 
this  country."  • 

8  931.  Insurance-Brokers.  "  Insurance  brokers  procure  insur- 
ance and  negotiate  between  insurers  and  insured."  ^  The  insur- 
ance broker  is  ordinarily  employed  by  the  person  seeking  the 
insurance,  that  is  by  the  insured,  and  when  so  employed  is  to  be 
distinguished  from  the  ordinary  insurance  agent,  who  is  commis- 
sioned and  employed  by  the  insurance  company  to  solicit  and 
write  insurance  by  and  in  the  company.  The  former  is  the  agent 
of  the  insured  ;  the  latter  is  the  agent  of  the  insurers.* 

I  See  ante.  %  Id.  St.  515;    Bell  •.   Cafferty.    21  Ind. 

«Bouvier'8  Law  Dictionary,  Title  411. 

*'  Brokers."  Contra:  Fisher  v.  Rieman,  12  Md. 

8  Lyons  v.  Miller.  6  Gratt.  (Va.)427;  497.  Baxter  v.  Duren,  29  Me.  434,  50 

62  Am.  Dec.  129.  Am.   Dec.  602,  contra  is  practically 

<  Thompson  c.  McCullougb,  31  Mo.  overruled  by  Hussey  v.   Sibley,  66 

224,  77  A.m.  Dec.  644;  Smith  v.  Mc-  Me.  192,  22  Am.    Rep.    557;  Ellis  v. 

Nair,  19  Kans.  330,  27  Am.  Rep.  117;  Wild,  6  Mass.    321,  contra   is   over- 

ChalliBS  V.   McCrum,  22  Kans.  157;  ruled  by  Merriam  v.  Wolcott,  supra. 

Bankbeadw.  Owen,  60  Ala.  457;  Sny-  »  Aldrich  v.  Jackson,  5  R.  I.  218. 

der  V.  Reno,  38  Iowa  329;  Swanzey  v.  •  Bouvier's  Law  Dictionary.    Title 

Parker,  50  Penn.  St.  441;  Merriam  v.  "  Brokers." 

Wolcott,  3  Allen  (Mass.)  260.  80  Am.  '  Bouvier's  Law  Dictionary.  Title 

Dec.  69;  Worthington ©.  Cowles,  113  "Brokers." 

Mass.  30;  Terry  «.  Bissell,  26  Conn.  »  Hartford  Fire    Ins.    Co.  v.    Rey- 

23;  Dumont  v.  Williamson,  18  Ohio  nolds,  36  Mich.  502. 

766 


Chap.  III.] 


BBOEBBB. 


§931. 


1.  The  insurance  agent^  as  thus  distinguished  from  the  bro- 
ker, is  ordinarily  held  to  be  a  general  agent  of  the  company.* 
As  such  a  general  agent,  it  is  held  that  he  may  waive  forfeitures 
and  conditions  in  the  policy,  notwithstanding  a  provision  therein 
that  no  agent  has  such  power;*  that  he  may  waive  prepayment 
of  the  premium,  although  the  policy  provides  that  it  shall  not 
take  effect  until  the  premium  is  paid ; '  that  notice  to  him  or 
knowledge  by  him  is  notice  to,  and  knowledge  by  the  company, 
so  as  to  prevent  the  latter  from  insisting  upon  a  forfeiture  for  a 
breach  of  condition,  of  which  breach  the  company  thus  had 
knowledge ;  *  that  if  facts  regarding  the  risk  are  correctly  stated 
to  the  agent,  but  erroneously  inserted  by  him  in  the  application, 
the  company,  and  not  the  insured,  is  chargeable  with  his  mis- 
take ;  •  that  he  may  consent  to  prior  or  subsequent  insurance  on 


'  Miller  v.  Phoenix  Ins.  Co.  27  Iowa      10  Am.  Rep.  566;  Joliffe  v.  Madison 


203,  1  Am.  Rep.  263. 

*  Carrugi  v.  Atlantic  Fire  Ins.  Co., 
40  Ga.  135,  2  Am.  Rep.  567;  Com- 
mercial Ins.  Co.  V.  Spankneble,  52 
111.  53,4  Am.  Rep.  582;  May  v.  Buck- 
eye Mut.  Ins.  Co.,  25  Wis.  291,  3 
Am.  Rep.  76;  Carson  v.  Jersey  City 
F.  Ins.  Co.  14  Vroom.  (N.  J.)  300,  39 
Am.  Rep.  584;  Piedmont  &c.  L. 
Ins.  Co.  V.  Young,  58  Ala.  476,  29 
Am.  Rep.  770;  Whited  v.  Qermania 
F.  Ins.  Co.  76  N.  Y.  415,  32  Am.  Rep. 
330;  Little  v.  Phoenix  Ins.  Co.,  123 
Mass.  380,  25  Am.  Rep.  96;  Cans  v. 
St.  Paul  F.  &  M.  Ins.  Co.  43  Wis. 
108,  28  Am.  Rep.  535;  Kruger  v. 
Western  F.  &  M.  Ins.  Co.  72  Cal.  91, 
1  Am.  St.  Rep.  43;  Combs  v.  Hanni- 
bal Ins.  Co,  43  Mo.  148,  97  Am.  Dec. 
383;  Viele  v.  Germauia  Ins.  Co.  26 
Iowa  9,  96  Am.  Dec.  83. 

The  authorities  upon  this  question 
are  very  numerous  and  no  attempt  is 
made  to  give  them  all. 

3  Young  V.  Hartford  F.  Ins.  Co.  45 
Iowa  377,  24  Am.  Rep.  784;  Dayton 
Ins.  Co.  «.  Kelly,  24  Ohio  St.  345,  15 
Am.  Rep.  613;  Sims.  v.  State  Ins.  Co. 
47  Mo.  54,  4  Am.  Rep.  311;  Bodine  v. 
Exchange  F.  Ins.   Co.   51  N.  Y.  117, 


Mut.  Ins.  Co.,  39  Wis.  Ill,  20  Am. 
Rep.35;Wooddy  ©.Old  Dominion  Ins. 
Co.,  31  Gratt.  (Va.)  362,  31  Am.  Rep. 
732;  Lebanon  Mut.  Ins.  Co.  v.  Hoo- 
ver, 113  Penn.  St.  591,  57  Am.  Rep. 
511;  Sheldon  v.  Atlantic  P.  &  M. 
Ins.  Co. ,  26  N.  Y.  460,  84  Am.  Dec. 
213. 

But  an  insurance  agent  authorized 
to  receive  applications  and  collect 
and  remit  premiums  but  not  to  issue 
policies,  has  no  power  to  extend  the 
time  of  payment,  Critchett  D.  Ameri- 
can Ins.  Co..  53  Iowa  404,  36  Am. 
Rep.  280. 

*  May  V.  Buckeye  Mut.  Ins.  Co. ,  25 
Wis.  201,  3  Am.  Rep.  76;  ^tna  &c. 
Ins.  Co.  V.  Olmstead,  21  Mich.  246,  4 
Am.  Rep.  483;  Amazon  Ins.  Co.  v. 
Wall,  31  Ohio  St.  638,  27  Am.  Rep. 
533;  American  Central  Ins.  Co.  v. 
McCrea,  8  Lea  (Tenn.)  513,  41  Am. 
Rep.  6i7;  Carrigan  v.  Lycoming  F. 
Ins.  Co.  53  Vt.  418,  38  Am.  Rep.  687; 
Gans  V.  Si.  Paul  P.  &  M.  Ins  Co.  43 
Wis.  108,  28  Am.  Rep.  535;  Manhat- 
tan Fire  Ins.  Co.  v.  Weill,  28  Gratt. 
(Va.)  389,  26  Am.  Rep.  364. 

« Insurance  Co.  v.  Williams,  89 
Ohio    St.    584,    48    Am.    Rep.    474: 


707 


§931. 


THE   LAW   OF    AGENCY. 


[Book  v. 


the  property ; '  and  that  a  provision  in  the  application  or  policy 
making  him  the  agent  of  the  insured,  and  not  of  the  company, 
can  not  change  his  legal  status  as  agent  of  the  latter.' 

2.  An  insurance  broker,  however,  employed  by  the  insured  to 
obtain  insurance  for  him,  is  the  agent  of  the  latter.'  He  is  ordi- 
narily a  special  agent.  His  acts,  statements  and  representations 
made  or  done  within  the  scope  of  his  authority  are  binding  upon 
his  employer,*  but  when  he  has  obtained  the  insurance  as 
directed,  his  authority  ceases,  and,  except  where  he  is  generally 
employed  to  attend  to  keeping  up  his  principal's  insurance,'  he 
has  no  implied  authority  to  return  a  policy  for  cancellation  or  to 
substitute  another  in  its  place,*  and  subsequent  notice  to  him  of 
the  termination  of  the  insurance,  is  not  notice  to  his  principal.' 
A  provision  in  the  policy  that  such  notice  may  be  given  to  the 
broker  does  not  change  this  rule,  nor  can  it  be  altered  by  usage 
among  insurance  men,' 


Planters'  Ins.  Co.  v.  Sorrels,  1  Baxt. 
(Tenn.)352,  25  Am.  Rep.  780;  Plant- 
ers' Ins,  Co.  V.  Myers,  55  Miss.  479, 
30  A.m.  Rep.  531;  Lycoming  Fire 
Ins.  Co.  V.  Jackson,  83  111.  303, 
25  Am.  Rep.  386;  Commercial  Ins. 
Co.  V.  Spankneble,  52  111.  53,  4  Am. 
Rep.  582;  Insurance  Co.  v.  Mahone, 
21  Wall  (U.  S.)  153;  Insurance  Co.  v. 
Wilkinson,  13  Id.  222;  Miner  v. 
Phoenix  Ins.  Co.,  27  Wis.  693,  9  Am. 
Rep.  479;  Winans  v.  Allemania  F. 
Ins.  Co.,  38  Wis.  343;  Kausal  v.  Min- 
nesota Farmers'  Ins.  Ass'n,  31  Minn. 
17,  47  Am.  Rep.  776. 

But  see  Blooming  Grove  &c.  Ins. 
Co.  V.  McAnerney,  102  Penn.  St.  335, 
48  Am.  Rep.  209. 

1  Carrugi  v.  Atlantic  Fire  Ins,  Co., 
40  Ga.  135,  2  Am.  Rep.  567;  Kitchen 
r.  Hartford  F.  Ins,  Co.,  57  Mich.  185, 
o8  Am.  Rep.  344. 

«  Planters'  Ins.  Co.c.Myers,55  Miss. 
479,  30  Am.  Rep.  521 ;  Kausal  v.  Min- 
nesota Farmers'  Ins.  Ass'n,  31  Minn. 
17,  47  Am.  Rep.  776;  Grace  v.  Ameri- 
can Cent.  Ins.  Co.,  109  U.  S.  278; 
Commercial  Ins.  Co,  e.  Ives,  56  111. 


402;  Columbia  Ins.  Co.  t>.  Cooper,  50 
Penn.  St.  331. 

But  see  Rohrbach  e,  Germania 
Fire  Ins.  Co.,  62  N.  Y.  47.  20  Am. 
Rep.  451. 

*  Hartford  F.  Ins.  Co.  v.  Reynolds, 
36  Mich.  503. 

*  Standard  Oil  Co.  v.  Triumph  Ins. 
Co.  64  N.  Y.  85. 

6  Standard  Oil  Co.  v.  Triumph  Ins. 
Co.  supra. 

*  Bennett  «.  City  Ins.  Co.,  115 
Mass.  241;  Van  Valkenburgh  v.  Len- 
ox F.  Ins.  Co.,  51  N.  Y.  465. 

T  Grace  v.  American  Central  Ins. 
Co.  109  U.  S.  278;  Hermann  v.  Niag- 
ara F.  Ins.  Co.  100  N,  Y,  411,  53 
Am.  Rep.  197.  White  v.  Connecticut 
F,  Ins.  Co,,  120  Mass.  330. 

*  Grace  e.  American  Central  Ins. 
Co.,  supra;  Hermann  v.  Niagara  Fire 
Ins,  Co.  supra;  White  v.  Connecticut 
F,  Ins.  Co.,  supra;  Adams  ».  Manufac- 
turers' &  Builders'  Ins.  Co.,  17  Fed. 
Rep.  630;  Sullivan  v.  Phoenix  Ins. 
Co.,  34  Kans.  70;  Planters'  Ins.  Co.  v. 
Myers,  55  Miss.  479,  30  Am.  Rep. 
521;  Eilenberger  v.  Protective  Mut. 


768 


Chap.  III.]  BROKEBS.  §  932. 

3.  nis  duties  to  his  employer  Blyq  similar  to  those  of  any  other 
broker.  He  is  bound  to  exercise  reasonable  care  and  diligence  in 
selecting  none  but  reliable  companies,  and  in  securing  proper  and 
suflScient  policies  to  cover  the  risks  against  which  he  was  employed 
to  insure  ;  *  but  he  will  not  be  liable  if,  in  the  exercise  of  such 
diligence,  he  selects  a  company  then  in  good  standing  though  it 
subsequently  becomes  insolvent.' 

4.  His  right  to  sue  upon  the  policy  has  been  already  touched 
upon  in  another  place.'  As  there  seen,  where  the  policy  is  in 
his  name  or  the  loss  is  made  payable  to  him,  he  may  maintain  the 
action  in  his  own  name.*  His  right  in  this  case,  however,  as  in 
others,  is  subordinate  to  the  principal's  right  to  bring  the  action 
himself  subject  to  equities  where  he  was  not  disclosed,'  but 
not  where  the  principal's  name  is  disclosed,  as  by  being  stated  in 
in  the  policy.' 

5.  His  right  to  a  lien  is  considered  hereafter.' 

§  932.  Merchandise  Brokers.  "Merchandise  brokers  negotiate 
the  sale  of  merchandise  without  having  possession  or  control  of 
it,  as  factors  have."  *  Merchandise  brokers  are  a  numerous  class, 
dealing  with  reference  to  all  the  varieties  of  commercial  com- 
modities. They  are  governed  by  the  general  rules  of  agency,  as 
will  be  seen  in  the  following  sections,  but  there  has  also  grown 

P.  Ins,  Co.,  89  Penn.  St.  464;  Gans«.  (Md.)  417,  16  Am.  Dec.  317;  Lazarua 

St.  Paul  P.  &  M.  Ins.  Co.,  43  Wis.  v.  Commonwealth  Ins.  Co.,   5  Pick. 

108,  28  Am.  Rep.  535;  Von  Wien  v.  (Mass.)  76;  Sargent  v.  Morris,  3  Barn, 

Scottish    Ins.  Co.  53   N.  Y.   Super.  &   Aid.    281;  Aldrich    v.    Equitable 

Ct.  490,  32  Alb.  L.  Jour.  488.  Safety    Ins.    Co.,  1    Woodb.  &   M. 

"Geltins  v.   Scudder,   71    111.    86;  (U.  S.  C.  C.)  276;  Williams©.  Ocean 

Park  V.    Hammond,  6    Taunt.    495;  Ins.  Co.,  2  Mete.  (Mass.)  305;  Somea 

Mayhew  v.  Forrester,  5  Id.  615;  See  v.  Equitable  Safety  Ins.  Co.,  12  Gray 

ante,  §  510.  (Mass.)  532;  Browning  v.  Provincial 

8  Getlins  v.  Scudder,    tiupra.     See  Ins.  Co.  L.  R.  5  P.  C.  263,  8  Eng. 

ante,  §  510.  Rep.  217. 

3  See  ante,  §  756.  •  Browning  ».  Provincial  Ins.  Co., 

*  Jefferson   Ins.  Co.  •.  Cotheal,  7  L.  R.  5  P.  C.  263,  8  Eng.  Rep.  217. 

Wend.   (N.  Y.)  73;  32  Am.  Dec.  567;  'Braden   v.   Louisiana    State    Ins. 

Farrow  v.   Comnv-nwealth  Ins.  Co.,  Co.,  1  La.  220,  20  Am.  Dec.  277.  See 

18  Pick.  (Mass.)  oJ,  29  Am.  Dec.  564;  also  Sweeting  v.  Pearce,  7  C  B.  N. 

Provincial   Ins.  Co.  «.  Leduc,  L.  R.  8.  449;  Scott  ».  Irving,  1  B.  &  Ad. 

6  P.  C.  224,  11  Eng.  Rep.  84.  605. 

»  Farrow  v.    Commonwealth    Ins.  *  See  post,  §  980. 

Co.  18  Pick.  (Mass.)  53,  29  Am.  Dec.  •  Bouvier's  Law  Dictionary.     Title 

564;  Newson  «.  Douglass,  7  H.  •&  J.  "Brokers." 

49  769 


§  932.  THE    LAW    OF    AGENCY.  [Book  Y. 

up  around  their  transactions  a  body  of  usages  which  enter  into 
their  negotiations  and  which  have  been  recognized  and  enforced 
by  the  courts. 

When  such  a  broker  has  succeeded  in  making  a  contract,  says 
Mr.  Benjamin  in  his  work  on  Sales,'  "  he  reduces  it  to  writing, 
and  delivers  to  each  party  a  copy  of  the  terms  as  reduced  to 
writing  by  him.  He  also  ought  to  enter  them  in  his  book,  and 
sign  the  entry.  What  he  delivers  to  the  seller  is  called  the  sold 
note  ;  to  the  buyer,  the  bought  note.  No  particular  form  is 
required,  and  from  the  cases  it  seems  that  there  are  four  varieties 
used  in  practice.  The^«^  is  where  on  the  face  of  the  notes  the 
broker  professes  to  act  for  both  the  parties  whose  names  are  dis- 
closed in  the  note.  The  sold  note,  then,  in  substance,  says, 
'  Sold  for  A  B  to  C  D,'  and  sets  out  the  terms  of  the  bargain  ; 
the  bought  note  begins,  '  Bought  for  C  D  of  A  B '  or  equivalent 
lansuasre,  and  sets  out  the  same  terms  as  the  sold  note,  and  both 
are  signed  by  the  broker.  The  second  form  is  where  the  broker 
does  not  disclose  in  the  bought  note  the  name  of  the  vendor,  nor 
in  the  sold  note  the  name  of  the  purchaser,  but  still  shows  that 
he  is  acting  as  broker,  not  principal.  The  form  then  is  simply, 
'  Bought  for  C  D  '  and  '  Sold  for  A  B.'  The  third  form  is  where 
the  broker,  on  the  face  of  the  note,  appears  to  be  the  principal, 
though  he  is  really  only  an  agent.  Instead  of  giving  to  the 
buyer  a  note,  '  Bought  for  you  by  me,'  he  gives  it  in  this  form  : 
'  Sold  to  you  by  me.'  By  so  doing  he  assumes  the  obligation  of 
a  principal,  and  cannot  escape  responsibility  by  parol  proof  that 
he  was  only  acting  as  broker  for  another,  although  the  party  to 
whom  he  gives  such  a  note  is  at  liberty  to  show  that  there  was 
an  unnamed  principal,  and  to  make  this  principal  responsible. 
The  fourth  form  is  where  the  broker  professes  to  sign  as  a 
broker  but  is  really  a  principal,  as  in  the  cases  of  Sharman  v. 
Brandt*  and  MoUett  v.  Kobinson,'  in  which  case  his  signature 
does  not  bind  the  other  party,  and  he  cannot  sue  on  the  contract. 

According  to  either  of  the  first  two  forms,  the  party  who 
receives  and  keeps  a  note,  in  which  the  broker  tells  him  in  effect, 
*  I  have  bought  for  you,  or  I  have  sold  for  you,'  plainly  admits 
that  the  broker  acted  by  his  authority,  and  as  his  agent,  and  the 
signature  of  the  broker  is  therefore  the  signature  of  the  paity 

I  §  278.  »  L.  R.  7  H.  L.  803,  14  Eng.  Kep. 

«  L.  R.  6  Q.  B.  72a  177. 

770 


Chap.  IIL]  BROKERS.  ^  932. 

accepting  and  retaining  such  a  note;  but  according  to  the  third 
form,  the  broker  says,  in  effect,  '  I  myself  sell  to  you,'  and  the 
acceptance  of  a  paper  describing  the  broker  as  the  principal  who 
sells,  plainly  repels  any  inference  that  he  is  acting  as  agent  for 
the  party  who  buys,  and,  in  the  absence  of  other  evidence,  the 
broker's  signature  would  not  be  that  of  an  agent  of  the  party 
retaining  the  note ;  and  by  the  fourth  form,  the  language  of  the 
written  contract  is  at  variance  with  the  real  truth  of  the  matter." 

As  to  the  rules  governing  the  bought  and  sold  notes,  Mr. 
Benjamin  gives  the  following  summary:* 

"  First — The  broker's  signed  entry  in  his  book  constitutes  the 
contract  between  the  parties,  and  is  binding  on  both.* 

Secondly — The  bought  and  sold  notes  do  not  constitute  the 
contract.' 

Thirdly — But  the  bought  and  sold  notes,  when  they  corres- 
pond and  state  all  the  terms  of  the  bargain,  are  complete  and 
sufficient  evidence  to  satisfy  the  statute ;  even  though  there  be 
no  entry  in  the  broker's  book,  or,  vidiat  is  equivalent,  only  an 
unsigned  entry.* 

Fourthly — Either  the  bought  or  sold  note  alone  will  satisfy 
the  statute,  provided  no  variance  be  shown  between  it  and  the 
other  note,  or  between  it  and  the  signed  entry  in  the  book.' 

»  Benjamin  on  Sales,  §  294.  in  Thornton  v.  Charles,  9  M.  «&  W. 

»  "  This  proposition  rests  on  the  au-  802,  of  Lord  Ellenborough  inHey- 

thority  of  Lord   Ellenborough  in  man  v.  Neale,  3  Camp.  337,  and  was 

Heyman  «.   Neale,   2  Camp.  337,  of  the  unanimous  opinion  of  the  four 

Parke  B.  in  Thornton  v.  Charles,  9  judges  in  Sievewright  «.  Archibald, 

M.  «&W.  802. and  of  Lord  Campbell,  17  Q.   B.   115.     The  decision  to  the 

C.  J.,  andWiGHTMANandPATTESON,  contrary,    in  the  nid  prius    case  of 

J,  J.,  in  Sievewright  v.  Archibald,  17  Thornton  v.  Meux,  M.  &  M.  43  and 

Q.  B.  115,  20  L.  J,  Q.  B.  529  (and  of  the  dictam  Goom  v.  Aflalo,  6  B.  »&  C. 

the  court  in  Thompson  v.  Gardiner,  1  117,  and  Trueman  v.  Loder,  11  Ad.  & 

C.  P.  D.  777).    GiBBS,  C.  J.,  in  Cum-  E.  589,  are  pointedly  disapproved  in 

ming  V.  Roebuck;  Holt,  172,  Abbott,  the  case  of  Sievewright  «.  Archibald, 

C.  J?,  in  Thornton  v.  Meux;  M.  &  M.  17  Q.  B.  115,  20  L.  J.  Q.  B.  529." 
43,  Dekman,  C.  J.,    in  Townsend  c.  <"  This  was  first  settled  by  Goom 

Drakeford,  1  Car.  &  K.  20,  and  Lord  «.  Aflalo,  6  B.   &  C.  117,  and  reluct- 

ABiNGERin  Thornton  v.  Charles,9  M.  antly  admitted  to  be  no  longer  ques- 

&  W.  802,  are  authorities  to  the  con-  tionable  in  Sievewright  v.  Archibald, 

trary,   but  they  seem  to  have  been  17  Q.  B.  115,  20  L.  J.  Q.  B.  529." 
overruled   in   Sievewright  v.    Archi-  »  *'  This  was  the  decision  in  Hawes 

bald,  17  Q.  B.  115,  20  L.  J.  Q.  B.  529."  v.  Forster,  1  Mood.  «fe  Rob.  868,  of  the 

•  •'  This  is  the  opinion  of  Parke  B.  common  pleas  in  Parton  v.  Crofts,  16 

771 


§  932.  THE    LAW    OF    AGENCY.  [Book    V. 

Fifthly — Where  one  note  only  is  offered  in  evidence,  the 
defendant  has  the  right  to  offer  the  other  note  or  the  signed 
entry  in  the  book  to  prove  a  variance.* 

Sixthly — As  to  variance.  This  may  occur  between  the 
bought  and  sold  notes  where  there  is  a  signed  entry,  or  where 
there  is  none.  It  may  also  occur  when  the  bought  and  sold  notes 
correspond,  but  the  signed  entry  differs  from  them.  If  there  be 
a  signed  entry,  it  follows  from  the  authorities  under  thejirst  of 
these  propositions  that  this  entry  will  in  general  control  the 
case,  because  it  constitutes  the  contract  of  which  the  bought  and 
sold  notes  are  merely  secondary  evidence,  and  any  variance 
between  them  could  not  affect  the'validity  of  the  original  writ- 
ten bargain.  If,  however,  the  bought  and  sold  notes  correspond, 
but  there  be  a  variance  between  them  taken  collectively  and  the 
entry  in  the  book,  it  becomes  a  question  of  fact  for  the  jury 
whether  the  acceptance  by  the  parties  of  the  bought  and  sold 
notes  constitute  evidence  of  a  new  contract  modifying  that  which 
was  entered  in  the  book.* 

Seventhly — If  the  bargain  is  made  by  correspondence,  and 
there  is  a  variance  between  the  agreement  thus  concluded  and 
the  bought  and  sold  notes,  the  principles  are  the  same  as  those 
just  stated  which  govern  variance  between  a  signed  entry  and 
the  bought  and  sold  notes.^ 

Eighthly — If  the  bought  and  sold  notes  vary,  and  there  is  no 
signed  entry  in  the  broker's  book,  nor  other  writing  showing  the 
terms  of  the  bargain,  there  is  no  valid  contract.* 

C.  B.  N.  8.  11,  33  L.  J.  C.  P.  189  ton  «.  Charles,  9  M.  &  W.  802,  after- 
(and  of  the  common  pleas  division  in  wards  by  Patteson,  J.,  in  Sieve- 
Thompson  V.  Gardiner,  1  C.  P.  D.  Wright®.  Archibald,  17  Q  B.  115,  20 
777)."  L.  J.  Q.  B.  529,  and  adopted  by  the 

*"Hawes  e.  Forster,   1   Mood.   &  other  judges  in  this  last  named  case." 

Kob.  368,  is  direct  authority  in  tela-  *  "  As    decided    in    Heyworth    -o. 

tion  to  the  entry  in  the  book,  and  in  Knight,  17  C.  B.   N.   S.  298,  33  L.  J- 

all  the  cases  on  variance,  particularly  C.  P.  298. 

in  Parton e.  Crofts,  8ii;>ra,  it  is  taken  *  [1  Chitty  Conlr.    (11th  Am.  ed.) 

for  granted  that  the  defendant  may  551;  Suydam  c.  Clark,   5  Sandf.  138; 

produce  his  own  bought  or  sold  note  Butters  v.  Glass,  31  U.  C.  Q.  B.  879.] 

to  show   that  it  does  not  correspond  "  This    is    settled    by    Thornton    v. 

with  the  plaintiff's."  Kempster,  5  Taunt,  786;  Gumming  v. 

s  "This  is  the  point  established  by  Roebuck,    Holt,    172;    Thornton    v. 

Ilawesc.  Forster.    1  Mood  &  R.  368,  Meux,    1    M.    &    M.    43;    Grant  v. 

according  to  the  explanation  of  that  Fletcher,  5  B.   &  C.  436;  Gregson  ». 

case  first  given  by  Pabke  B.  in  Thorn-  Rucks,  4  Q.  B.  747,  and  Sievewright  e. 

772 


Chap.  III.]]  BE0KER8.  §  935. 

Lastly — If  a  sale  be  made  by  a  broker  on  credit,  and  the  name 
of  the  purchaser  has  not  been  previously  communicated  to  the 
vendor,  evidence  of  usage  is  admissible  to  show  that  the  vendor 
is  not  finally  bound  to  the  bargain  until  he  has  had  a  reasonable 
time,  after  receiving  the  sold  note,  to  inquire  into  the  sufficiency 
of  the  purchaser,  and  to  withdraw  if  he  disapproves."  * 

§  933.  Pawnbrokers.  "  Pawnbrokers  lend  money  in  small 
sums,  on  the  security  of  personal  property,  at  usurious  rates  of 
interest.  They  are  licensed  by  the  authorities  and  excepted  from 
the  operation  of  usury  laws." '  In  this  view  they  are  not  prop- 
erly to  be  regarded  as  brokers  at  all,  as  they  are  ordinarily  the 
principals  in  their  part  of  the  transaction  rather  than  agents. 
Their  business  is  usually  regulated  by  the  State  or  lesser  munic- 
ipal authority. 

§  934.  Beal  Estate  Brokers.  « Eeal  estate  brokers  negotiate 
the  sale  or  purchase  of  real  property.  They  are  a  numerous 
class,  and  in  addition  to  the  above  duty,  sometimes  procure  loans 
on  mortgage  security,  collect  rents,  and  attend  to  the  letting  and 
leasing  of  houses  and  lands."  • 

The  general  nature  of  their  rights  and  duties  will  be  consid- 
ered in  a  subsequent  section,  when  dealing  of  the  broker's  right 
to  compensation.* 

§  935.  Ship  Brokers.  "  Ship  brokers  negotiate  the  purchase 
and  sale  of  ships  and  the  business  of  freighting  vessels."  • 

Archibald,  17  Q.  B.  115,  20  L.  J.  Q.  be  considered  as  judicially  recog- 
B.  529.  The  only  opinion  to  the  con-  nized  by  that  decision,  and  as  requir- 
trary  is  that  of  Erle,  J.  in  the  last  ing  no  proof.  See  Brandao  v.  Bar- 
named  case.  In  one  case,  however,  nett,  3  C.  B.  519,  on  appeal  to  H.  of 
at  nisi  priua;  Rowe  v.  Osborne,  1  L.,  s.  c.  12  01.  &  Fin.  787,  as  to  the 
Stark,  140,  Lord  Ellen  BOROUGH  held  necessity  for  proving  mercantile 
the  defendant  bound  by  his  own  sig-  usages.  Also.  1  Smith's  L.  0.  602, 
na^wre  to  a  bought  note  delivered  to  ed.  1879;  but  it  would  certainly  be 
the  vendor,  which  did  not  correspond  more  prudent  to  offer  evidence  of  the 
with  the  note  signed  by  the  broker  usage." 
and  sent  to  the  defendant."  *  Bouvier's  Law  Dictionary.     Title 

'  "This  was  decided  in  Hodgson  "Brokers." 

t>.  Davies,  2  Camp.   531,   and  as  the  »  Bouvier's  Law  Dictionary.     Title 

special  jury  spontaneously  intervened  "  Brokers." 

in  that  case,  and  the  usage  was  held  <  See  post,  §  966. 

good  without  proof  of  it,  it  is  not  im-  s  Bouvier's  Law  Dictionary.     Title 

probable  that  the  custom  might  now  "Brokers." 

773 


§  936.  THE   LAW   OF    AGENCY.  [Book  V^ 

§  936.  stock  Brokers.  "  Stock  brokers  are  employed  to  buy 
and  sell  shares  of  stock  in  incorporated  companies  and  the  indebt- 
edness of  governments."  *  The  stock  broker  regularly  is  em- 
ployed as  a  broker  merely,  buying  or  selling  in  the  name  of  his 
principal  to  whom  he  stands  purely  in  the  relation  of  an  agent. 
But  in  modern  times  he  is  frequently  employed  in  transactions 
in  which  he  assumes  a  different  character.  These  transactions  are 
those  in  which  the  broker  acting  upon  the  order  of  his  principal, 
but  with  his  own  money,  purchases  or  sells  stocks  or  securities  for 
the  principal  for  purposes  of  speculation.  The  stock-broker  in 
these,  as  in  other  cases,  usually  acts  for  a  commission  agreed  upon 
or  regulated  by  usage,  and  the  business  is  ordinarily  confined  to 
those  brokers  who  are  members  of  the  stock-exchange. 

The  law  governing  the  transactions  of  stock  brokers  is  too  ex- 
tensive to  be  given  fully  here,  but  the  ordinary  course  of  a  trans- 
action between  such  a  broker  and  his  client  has  been  described  in 
a  leading  case  in  New  York  '  as  follows  : — 

"  The  customer  employs  the  broker,  to  buy  certain  stocks  for 
his  account,  and  to  pay  for  them,  and  to  hold  them  subject  to  his 
order  as  to  the  time  of  sale.  The  customer  advances  ten  per 
cent,  of  their  market  value,  and  agrees  to  keep  good  such  pro- 
portionate advance  according  to  the  fluctuations  of  the  market. 

The  broker  undertakes  and  agrees  : — 

1.  At  once  to  buy  for  the  customer  the  stocks  indicated.* 

2.  To  advance  all  the  money  required  for  the  purchase,  beyond 
the  ten  per  cent,  furnished  by  the  customer. 

3.  To  carry  or  hold  such  stocks  for  the  benefit  of  the  customer 
60  long  as  the  margin  of  ten  per  cent,  is  kept  good,  or  until  notice 
is  given  by  either  party  that  the  transaction  must  be  closed.  *    An 

'  Bouvier's  Law  Dictionary.     Title  or  sell  to  himself.     Taussig  o.    Hart, 

"Brokers."  swpro;  Levy  v.    Loeb,  85   N.  Y.  8G5; 

*  Markham    v.    Jaudon,  41  N.   Y.  Day  v.  Holmes,  svpi-a;  Stokes  v.  Fia- 

256.  zier,  72  111.  428;  Richardson  v.  Mann, 

»Itis  the  broker's  duty  where  the  30  La.  Ann.  1060;  Maryland  Fire  Ins. 

quantity  or  price  is  fixed  by  the  prin-  Co.  v.  Dalrymple,  25  Md.  242;   Baltt- 

cipal     to    observe      the    directions.  more  Marine  Ins.  Co.  v.  Dalrymple, 

Taussig  V.  Hart,  58  N.  Y.  428;  Day  v.  Id.  269;  Bryson  v.    Rayner,  Id.  424; 

Holmes,  103  Mass.  308.  Martin    v.    Moulfon,    8    N.  H.    504; 

Like      other    brokers,     the    stock  Marye  v.  Strouse,   5  Fed.    R.  p.  483; 

broker  can  not,    without  his  princi-  Bischoffsheim  v.  Baltzer,  20  Id.  890. 

pal's  knowledge  and  consent,  buy  of  *  The  broker  must    not  close  out 

774 


Chap.  III.]  BROKERS.  §  936. 

appreciation  in  the  value  of  the  stocks  is  the  gain  of  the  customer, 
and  not  of  the  broker. ' 

4.  At  all  times  to  have  in  his  name,  or  under  his  control,  ready 
for  delivery,  the  shares  purchased,  or  an  equal  amount  of  other 
shares  of  the  same  stock.  • 

5.  To  deliver  such  shares  to  the  customer  when  required  by 
him,  upon  the  receipt  of  the  advances  and  commissions  accruing 
to  the  broker ;  or 

6.  To  sell  such  shares  upon  the  order  of  the  customer,  upon 
payment  of  the  like  sums  to  him,  and  account  to  the  customer  for 
the  proceeds  of  such  sale.  • 

Under  this  contract,  the  customer  undertakes, — 

1.  To  pay  a  margin  of  ten  per  cent,  on  the  current  market 
value  of  the  shares. 

2.  To  keep  good  such  margin  according  to  the  fluctuations  of 
the  market. 

3.  To  take  the  shares  so  purchased  on  his  order,  whenever 
required  by  the  broker,  and  to  pay  the  difference  between  the 
percentage  advanced  by  him  and  the  amount  paid  therefor  by  the 
broker. 

The  position  of  the  broker  is  twofold.  Upon  the  order  of 
the  customer,  he  purchases  the  shares  of  stock  desired  by  him. 

the  transaction  without  the  princi-  Markham  v.  Jaudon,  41  N.  Y.  256; 

pal's  authority  unless,  after  reason-  Gruman    v.    Smith,    81    N.    Y.  25; 

able  notice,  the  latter  has  failed  to  Knowlton    v.    Fitch,  52  N.   Y.  288; 

keep  good  the   margin.     If  he  does,  Stenton  v.  Jerome,  54  N.  Y.  480. 
the  broker  will   forfeit  his   commis-  '  Profits   belong    to  the  principal ; 

sion;    Ball  v.  Clark,   28   Fed.  Rep.  Gruman  ?j.  Smith,  81  N.  Y.  25. 
179;  Larminiet).  Carley,  114  111.  196;  «  It  is  not  necessary  that  the  broker 

Perin  v.   Parker,   17  111.   App.  169;  should  keep  the  identical  stock  pur- 

Blakemore  v.  Heyman,  23  Fed.  Rep.  chased.     An   equal   amount  of  other 

648,  and  be   liable  for  the  damages;  shares  of  the  same  kind  is  sufficient. 

Denton  v.  Jackson,  106  111.  433;  Baker  Stewart  T)..Drake,  46  N.  Y.  453;  Price 

V.  Drake,  66  N.  Y.  518,  23  Am.  Rep.  v.    Gover,    40  Md.    112;  Marston  v. 

80.  Gould,  69  K  Y.   226;  Levy  t>.  Loeb, 

But  if  the  principal  fail  after  notice  85  N.  Y.  365.     See  also,  Gregory  ©, 

to  put  up  the  necessary  margin,  the  Wendell,  40  Mich.  432. 
broker  may  sell  after  the  customary  *  It  is  the   broker's  duty  to  follow 

and    usual    notice    of    the  time  and  the  principal's   instructions  as  to  the 

place,  unless    such  notice  has  been  price  or  time  at  which   he  shall  sell 

waived.     Corbett  v.   Underwood,  83  See  nature  and  effect  of  "stop-order "' 

111.  324,  25  Am.    Rep.  392;  Baker  v.  explained  in  Porter  v.  Wormser,  94 

Drake,  66  N.  Y.  518,  23  Am.  Rep.  80;  N.  Y.  431. 

775 


§  937.  THK    LAW    OF   AGENCY.  [Book   V. 

This  a  clear  act  of  agency.  To  complete  the  purchase,  he  advances 
from  his  own  funds,  for  the  benefit  of  the  customer,  ninety  per 
cent,  of  the  purchase  money.  Quite  as  clearly,  he  does  not  in  this 
act  as  an  agent,  but  assumes  a  new  position.  He  also  holds  or 
carries  the  stock  for  the  benefit  of  the  purchaser,  until  a  sale  is 
made  by  the  order  of  the  purchaser,  or  upon  his  own  action.  In 
thus  holding  or  carrying,  he  stands  also  upon  a  different  ground 
from  that  of  a  broker  or  agent,  whose  office  is  simply  to  buy  and 
sell.  To  advance  money  for  the  purchase,  and  to  hold  and  carry 
stocks,  is  not  the  act  of  a  broker  as  such.  In  so  doing,  he  enters 
upon  a  new  duty,  obtains  other  rights,  and  is  subject  to  additional 
responsibilities." 

"  In  my  judgment "  proceeds  the  same  judge,  "  the  contract 
between  the  parties  to  this  action,  was  in  spirit  and  in  effect,  if  not 
technically  and  in  form,  a  contract  of  pledge.  To  authorize  the 
defendants  to  sell  the  stock  purchased  they  were  bound  first  to 
call  upon  the  plaintiff  to  make  good  his  margin  ;  and  failing  in 
that,  he  was  entitled  secondly  to  notice  of  the  time  and  place 
where  the  stock  would  be  sold :  which  time  and  place,  thirdly, 
must  be  reasonable."  * 

IL 

APPOINTMENT   AND  TERMINATION. 

§  937.  Appointed  like  other  Agents.  The  broker,  like  other 
agents,  derives  his  authority  from  the  appointment  of  his  prin- 
cipal, and  in  order  to  obtain  rights  himself,  or  establish  liabili- 
ties to  others,  against  his  principal,  the  fact  of  his  appointment 
must  be  made  to  appear.  l!^o  special  method  is  requisite,  how- 
ever, except  where  a  statute  prescribes  it,  but,  as  in  the  case  of 
other  agents,  the  appointment  may  be  made  by  an  instrument  in 
writing,  or  by  mere  spoken  words,  or  it  may  be  presumed  from 
the  conduct  of  the  parties.'  The  principal  cannot  be  bound  by, 
or  be  made  liable  for,  services  rendered  by  a  broker  which  are 

>  See  also  Baker  c.  Drake,  53  N.  Y.  Hugg,    41    Cal.    519;    Thompson  «. 

211,  13  Am.  Rep.  507,  b.  c.  66  N.  Y.  Toland,  48  Cal,  99. 
518,     23    Am.   Rep.    80;    Stenton  v.  2  See  Howe  Machine  Co.  v.  Clark, 

Jerome,   54  N.  Y.  480;    Taussig    v.  15  Kan. 492;  Fischer  c.Bell,91  lDd.243; 

Hart,  58  N.  Y.  425;  Gruman  v.  Smith,  Brown  v.  Eaton,  21  Minn.  409;  Dick- 

81  N.  Y.  25;  Maryland  Fire  Ins.  Co.  erman  v.  Ashton,  Id.  538  ;  Thompson 

V.  Dalrjmple,   25  Md.   242;  Child  v.  v.  Gardiner,  L.  R.  1  C.  P.  Div.  777. 

776 


Chap.  III.]  BROKERS.  §  940. 

purely  voluntary  on  the  part  of  the  latter  and  performed  with- 
out the  express  or  implied  consent  of  the  principal ;  *  but  even  in 
such  cases  the  principal  may,  by  availing  himself  of  the  benefits 
of  the  services,  not  only  ratify  and  confirm  the  acts  done,  but 
render  himself  liable  to  the  broker  for  their  value.* 

§  938.  How  Authority  terminated.  The  authority  of  the 
broker  may  be  terminated  by  operation  of  law,  or  by  the  act  of 
his  principal.  What  will  operate,  as  matter  of  law,  to  dissolve 
the  relation  of  principal  and  agent,  and  under  what  circumstances 
it  may  be  terminated  by  the  act  of  parties,  are  matters  which 
have  been  already  considered,'  and  the  rules  there  laid  down  are 
applicable  to  this  relation. 

III. 

IMPLIED   POWERS    OF   BROKERS. 

§  939.  In  general.  The  field  of  the  broker's  operations  lies 
within  comparatively  narrow  limits.  He  is  essentially  a  middle- 
man, making  contracts  for  the  parties  in  many  cases,  but,  not 
infrequently,  simply  introducing  or  bringing  them  together,  and 
then  leaving  them  to  make  the  contract  for  themselves.  He  has, 
ordinarily,  no  possession  of  the  goods  he  sells,  and,  hence,  no 
special  property  in  them.  His  powers  are  limited  by  the  duty  he 
undertakes,  by  the  instructions  he  receives,  and  by  the  general 
scope  of  that  branch  of  the  business  which  he  pursues ;  and  he 
certainly  has  no  general  capacity  to  make  contracts  for  his  prin- 
cipal, outside  of  those  limits. 

§  940.  How  affected  by  Usage.  The  law  governing  the  trans- 
actions of  brokers  is  the  outgrowth  of  commercial  usage,  and,  in 
almost  no  other  branch  of  business,  are  the  powers  and  duties  of 
those  who  engage  in  it,  so  largely  determined  by  reference  to  such 
usage  as  in  the  case  of  brokers.  Particularly  is  this  true  of  stock 
brokers,  concerning  whose  operations,  as  conducted  in  this  country, 
there  has  been  developed  a  code  of  rules,  which  is  not  only  ob- 
served by  the  brokers  themselves,  but  which  has,  in  many  cases, 
been  engrafted  upon  the  law  by  judicial  recognition  and  adoption. 

»  Hinds  V.  Henry,  36  N.  J.  L.  328;         «  Sibbald  v.  Bethlehem  Iron  Co.,  83 
Market  Co.  v.  Jackson,  102  Penn.  St.       N.  Y.  378,  38  Am.  Rep.  441. 
269;  Keys  v.   Johnson,  68  Penn.  St.  See  Chapter  on  Ratification. 

42;  Holiey  v.  Townsend,  16  How.  (N.  »  See  ante,  §§  198-270. 

Y.)  Pr.  125. 

777 


§940. 


THE   LAW    OF   AGENCY. 


[Book  V. 


Usages  will  not  be  enforced  which  the  law  deems  to  be  unrea- 
sonable,* nor  can  an  usage  be  permitted  to  contravene  express 
instructions  to  the  contrary  ;  *  but  where  a  principal  employs  a 
broker  to  act  for  him  in  a  particular  market,  it  will,  in  the 
absence  of  express  instructions  to  the  contrary,  be  presumed  not 
only  that  he  authorized  him  to  deal  according  to  the  general  cus- 
tom of  brokers,  but  also  to  follow  and  observe  the  usage  which 
govern  the  transactions  of  such  business  in  the  market  in  ques- 
tion.' That  the  principal  was  not  informed  of  the  usages  will 
ordinarily  make  no  difference  if  the  usage  be  a  general  and 
reasonable  one  and  be  one  which  regulates  the  mode  of  perform- 
ance of  the  contract  merely  and  does  not  change  its  intrinsic 
character.  It  is  his  duty,  before  dealing  or  employing  others  to 
deal  in  such  a  market,  to  inquire  as  to  such  usages  if  he  wished  to 
provide  against  them.*  But  unless  it  be  shown  that  he  had  such 
knowledge  of  it  that  he  must  be  presumed  to  have  contracted  in 
reference  to  it,  the  principal  cannot  be  bound  by  an  usage  which 
changes  the  character  of  the  broker  or  the  nature  of  the  dealing.' 
So  an  usage  not  known  to  the  principal  cannot  operate  to  author- 


>  See  anU,  §  485. 

»  See  ante,  %%  281,  485. 

8  See  ante,  %%  281,  485. 

«  See  ante.  §§  281,  486. 

» In  Irwin  v.  Williar,  110  U.  8.  at 
p.  518,  Mr.  Justice  Matthews  says: 
"  The  relation  between  the  parties  to 
this  litigation  was  that  of  principal 
and  agent;  and  the  defendants  in 
error,  acting  as  brokers,  in  executing 
the  orders  to  sell,  undertook  to  ob- 
tain, and,  as  they  allege  in  their  dec- 
laration, did  obtain  a  responsible 
purchaser;  so  that  the  plaintiff  in 
error  would,  upon  the  contract  of 
sale  against  such  purchaser  when  dis- 
closed, have  been  entitled  to  main- 
tain an  action  in  case  of  default  in 
his  own  name.  Although  the  broker 
guaranteed  the  sale,  it  was  not  a  sale 
to  himself;  for,  being  agent  to  sell, 
he  could  not  make  himself  the  pur- 
chaser. The  precise  effect,  therefore, 
of  the  custom  proved  was,  that  at  the 
time  of  settlement,  in  anticipation  of 


the  maturity  of  the  contracts,  the 
brokers,  by  an  arrangement  among 
themselves,  by  a  process  of  mutual 
cancellation,  reduced  the  settlement 
to  a  payment  of  differences,  exchang- 
ing contracts,  so  as  to  substitute  new 
purchasers  and  new  sellers  respect- 
ively for  the  balances.  The  question 
is  not  whether  in  a  given  case,  with- 
out the  assent,  express  or  implied,  of 
the  principal,  this  change  of  his  rights 
and  obligations  can  be  effected  (for 
that  proposition  is  not  doubtful),  but 
whether  the  fact  of  his  transacting 
business  through  a  member  of  the 
Exchange,  without  other  knowledge 
of  the  custom,  makes  it  part  of  his 
contract  with  the  broker. 

In  Nickalls  v.  Merry,  L.  R.  7  H.  L. 
530,  13  Eng.  Rep.  55,  it  was  said  by 
Lord  Chelmsford,  p.  543,  that 
the  contract  '  having  been  made  be- 
tween a  broker  and  a  jobber,  mem- 
bers of  the  Stock  Exchange,  the 
usage  of  that  body  enters  into,  and  to 

78 


Chap.  III.] 


BROKERS. 


§940. 


ize  the  making  of  an  invalid  instead  of  a  valid  contract,  or  to 
bind  him  to  take  one  thing  when  he  has  ordered  another.' 


a  certain  extent  determines  and  gov- 
erns,  the  nature  and  effect  of  the 
contract.'      To    what    extent    such 
a  custom  shall  be  allowed  to  operate, 
as  between  the  broker  and  his  prin- 
cipal, was  very  thoroughly  considered 
and  finally  decided  by  the  House  of 
Lords  in  the  case  of  Robinson  v.  Mol- 
let.  L.  R  7  H.  L.  802,  14  Eng.  Rep. 
177,   after  much  division  of  opinion 
among    the    judges.      The    custom 
questioned  in  that  case  was  one  estab- 
lished in  the  London  tallow  trade, 
according  to  which,   brokers,    when 
they  received  an  order  from  a  princi- 
pal for  the  purchase  of  tallow,  made 
a  contract  or  contracts  in  their  own 
names,  without  disclosing  their  prin- 
cipals, either  for  the  specific  quantity 
of  tallow  so  ordered,   or  to  include 
such  order  with  others  in  a  contract 
for  the  entire  quantity,   or  in  any 
quantities  at  their    convenience,    at 
the    same  time    exchanging  bought 
and  sold  notes  with  the  selling  bro- 
kers, and  passing  to  their  principals  a 
bought  note  for  the  specific  quantity 
ordered  by  them.     When  a  broker  so 
purchased  in  his  own  name,  he  was 
personally  bound    by  the    contract. 
On  the  usual  settling  days,  the  bro- 
kers balanced  between  themselves  the 
purchases  and  sales  made,  and  made 
or  received  deliveries  to  or  from  their 
principals,  as  the  case  might  be,  or  if 
their  principals  refused  to  accept  or 
deliver,    then    they  sold    or  bought 
against  them,  and  charged  them  with 
the  loss,  if  any;    or  if  delivery  was 
not  required  on  either  side,  then  any 
difference  arising  from  a  rise  or  fall 
in  the  market  was  paid  by  one  to  the 
other.     It  was  held  that  this  custom 
did  not  bind  a  principal  giving  an 
order  to  a  broker  to  purchase  for  him, 
being  ignorant  of  its  existence.     It 


was  admitted  by  Lord  Chelmbfobd, 
p.  886,  'that  if  a  person  employs  a 
broker  to  transact  for  him  upon  a 
market,  with  the  usages  of  which  the 
principal  is  unacquainted,  he  gives 
authority  to  the  broker  to  make  con- 
tracts upon  the  footing  of  such  usages, 
provided  they  are  such  as  regulate 
the  mode  of  performing  thecontracta 
and  do  not  change  their  intrinsic 
character;'  and  he  added,  'of  cour.-e, 
if  the  appellant  knew  of  the  existence 
of  the  usage,  and  chose  to  employ  the 
respondents  without  any  restriction 
upon  them,  he  might  be  taken  to, 
have  authorized  them  to  act  for  him 
in  conformity  to  such  usage.' 

Mr.  Justice  Brett,  in  his  opinion, 
p.  816,  points  out  very  clearly  that 
the  custom,  if  allowed  to  prevail, 
would  work  a  change  in  the  relation 
between  the  broker  and  his  principal, 
by  permitting  the  agent  to  buy,  to 
convert  himself  into  a  principal  to  sell. 

Mr.  Baron  Cleasby,  p.  828,  said: 
'The  vice  of  the  usage  set  up  in  the 
present  case  cannot  be  appreciated 
by  examining  its  parts  separately.  It 
must  be  looked  at  as  a  whole,  and  its 
vice  consists,  I  apprehend,  in  this, 
that  the  broker  is  to  make  the  con- 
tract of  purchase  for  another  whose 
interest  as  buyer  is  to  have  the  advan- 
tage of  every  turn  of  the  market;  but 
if  the  broker  may  eventually  have  to 
provide  the  goods  as  principal,  then 
it  becomes  his  interest,  as  seller,  that 
the  price  which  he  is  to  receive  should 
have  been  as  much  in  favor  of  the 
seller  as  the  state  of  the  market  would 
admit.  Thus  the  two  positions  are 
opposed.' 

The  principle  of  this  decision  seems 
to  us  to  be  incontrovertible,  and  ap- 
plies in  the  present  case." 

'  Perry  0.  Barnett,  15  Q.  B.  Div.  388. 


779 


§  941.  THE    LAW    OF    AGENCY.  [Book  Y. 

§  941.  "Usual  and  necessary  Powers.  A  broker,  like  any 
otlier  agent,  is  presumed  in  the  absence  of  anything  to  indicate  a 
contrary  intent,  to  be  invested  also  with  those  incidental  powers 
which  are  reasonable  and  necessary  for  the  accomplishment  of  the 
object  of  his  agency,  and  which  are  usually  and  ordinarily  exer^ 
eised  under  like  circumstances.  Thus  if  he  be  directed  to  make 
a  contract  for  his  principal,  he  has  undoubted  authority  to  bind 
his  principal  by  the  usual  and  ordinary  terms  and  agreements, 
and  to  sign  the  necessary  evidence  thereof.* 

§  942.  Effect  of  his  Instructions.  Like  other  agents,  he  is 
also  bound  to  obey  the  instructions  of  liis  principal,  but  he  will 
be  justified  in  departing  from  those  instructions  if  an  unforeseen 
emergency  arises  not  occasioned  by  his  fault  or  neglect,  and  he 
acts  in  good  faith  and  for  the  obvious  and  certain  advantage  of 
his  principal.* 

§  943.  Acting  for  both  Parties.  A  broker  is,  ordinarily,  an 
agent  in  whom  a  special  trust  and  confidence  are  reposed.  His 
principal,  unless  he  agrees  to  less,  is  entitled  to  the  undivided 
benefit  of  the  broker's  skill,  knowledge  and  experience.  If  his 
principal,  with  full  knowledge  of  the  facts,  consents  to  the  broker's 
also  acting  for  the  other  party  in  the  same  transaction,  there  is 
no  legal  objection  to  such  a  course ; '  but,  except  with  such 
consent,  the  broker  will  not  be  permitted  to  assume  a  double 
agency.* 

»  See  ani^,  %  311.  University,  57  Ind.  466,  and  cases  in 

«  Judson  V.  Sturges,  5  Day  (Conn.)  following  note. 

556;  Drummond  ».    Wood,   2  Caines  *  Hinckley   v.    Arey,    27  Me.    362; 

(N.  Y.)310;  Liotard  v.  Graves,  3  Id.  Copeland    v.    Mercantile    Ins.  Co.  6 

226;  Forrestier®.  Bordman,   1  Story  Pick.  (Mass.)  197;  New  York  Ins.  Co. 

(U.  S.  C.  C.)  43.     And  see  Foster  v.  «.  National  Ins.   Co.,    14  N.    Y.  85; 

Smith,  2  Cold.  (Tenn.)  474,  88  Am.  Meyer  v.  Hanchett,  39  Wis.  419,  s.  c. 

Dec.    604;   StoUenwerck  «,  Thacher,  43  Wis.  246;  Greenwood  ©.  Spring,  54 

115  Mass.  224.  Barb.  (N.  Y.)  375;   Sumner   t.    Char- 

«  Adams  Mining  Co.  v.  Senter.  26  lotte,  &c.  R.  R.  Co.,   78  N.   C.    289; 

Mich.    73;  Col  well  v.  Keystone  Iron  Shirland  v.  Monitor  Iron  Works,  41 

Co.,    36    Mich.    53;  Fitzsiramons  v.  Wis.  162;  Bray®.  Mor.'^e,  41  Wis.  343; 

Southern  Express  Co.,  40  Ga.  330,  2  Rice  v.  Wood,  113  Mass.  133,  18  Am. 

Am.  Rep.  577;  Rowe  v.  Stevens,  53  Rep.  459;  Bell  v.  McConnell,  37  Ohio 

N.  Y.  631;  Joslin  v.  Cowee,  56  N.  Y.  St.  396,  41  Am.  Rep.  528;   Stewart  v. 

626;  Rolling  Stock  Co.  v.  Railroad,  34  Mather,  32  Wis.    344;  Farns worth  v. 

Ohio  St.  450;  Leekins  v.  Nordyke,  68  Brunquest,  36  Wis.  202;  Farns  worth 

Iowa  471 ;  Alexander  B.  Northwestern  t,  Hemmer,  1   Allen  (Mass.)  494,   79 

780 


Chap.  III.]  BROKERS.  §  946. 

§  944.  Can  not  delegate  his  Powers.  For  similar  reasons  the 
broker  has  no  implied  power  to  delegate  to  another  the  powers 
and  duties  confided  to  him.'  This  rule  is,  however,  subject  to 
the  same  exceptions  which  apply  to  the  delegation  by  other 
agents,  and  in  actual  practice,  particularly  upon  the  stock 
exchange,  it  is  a  recognized  usage  for  many  of  the  transactions 
of  the  broker  to  be  carried  on  through  a  substitute.' 

§  945.  Usually  must  aot  in  the  Name  of  his  Principal.  The 
business  of  the  broker  being  primarily  to  make  contracts  between 
others,  he  usually  contracts  only  in  the  name  of  his  principal,  and 
it  is  a  general  rule  that  he  has  no  implied  power  to  act  in  his  own 
name.*  JBut  this  rule  also  is  subject  to  be  controlled  by  usage, 
and  it  has  been  held  that  a  stock  broker  violates  no  duty  to  his 
principal,  where  he  takes,  in  his  own  name,  the  title  of  stocks 
which  he  was  directed  to  purchase  for  his  principal,  it  being 
shown  that  such  was  the  custom  of  brokers  at  that  time  and 
place.* 

§  946.  Implied  Power  to  fix  the  Price.  A  broker,  who  is 
instructed  to  buy  or  sell  property,  with  no  limitations  as  to  the 
price,  would  have  implied  authority  to  agree  upon  the  price  and 
to  bind  his  principal  by  such  agreement,  where  the  broker  acts 
honestly  and  in  good  faith,  and  the  price  fixed  is  the  usual  one, 
or,  where  there  is  no  usual  price,  then  a  fair  and  reasonable  and 
not  an  extraordinary  one.*  If  there  is  a  market  price,  that  price 
should  govern  in  the  absence  of  anything  indicating  a  contrary 
intent  on  the  part  of  the  principal.* 

Am.  Dec.  756;  Walker  e.  Osgood,  98  Breesb,  "  and  never  acts  in  bis  own 

Mass.  348,  93  Am.  Dec.  168;  Raisin  v.  name,  but  in  tbe  name  of   those  who 

Clark.  41  Md.  158,  20  Am.  Rep.  66;  employ  him."   In  Saladin  v.  Mitchell, 

Lynch  v.  Fallon,  11  R.  I.  311,  23  Am.  45  111.  79,  83;  same   point   Baring  v. 

Rep.  458;Pugsley  v.  Murray,  4  E.  D.  Corrie,  2  B.  &  Aid.  143. 

Smith  (N.  y.)245;  Everhart  v.  Searle,  *  Horton  v.  Morgan,  19  N.  Y.  170, 

71  Penn.  St.  256;   Scribner  v.  Collar,  75  Am.  Dec.  311;  Markham  v.   Jau- 

40  Mich.  375.  29  Am.  Rep.  241.  don,  41  N.  Y.  239. 

1  See  ante,  §§  184-197.  *  See  ante,  %  362.     Daylight  Burner 

«Gheenc.  Johnson,  90  Penn.  St.  38;  Co.    v.   Odlin,    51  N.   H.  56,  12  Am. 

Gregory  v.    Wendell,    40   Mich.  432;  Rep.  45;  Putnam  v.   French,  53  Vt. 

Rosenstock  v.  Tormey,  32  Md.  169,  3  402,  38  Am.  Rep.  682. 

Am.  Rep.  125.  *  Bigelow  v.  Walker,  24  Vt.  149,  58 

«  "He  is  a  mere  negotiator  between  Am,  Dec.  156. 
other    parties,"     says  Chief  Justice 

781 


§947. 


THE   LAW    OF   AOKNOT. 


[Book  V. 


§  947.  May  sell  with  "Warranty— when.  A  broker,  employed 
to  sell  property,  has  no  implied  general  authority  to  warrant  the 
quality  of  the  property  sold ;  but  if  it  be  such  as,  at  the  time 
and  place  at  which  he  is  authorized  to  sell,  is  usually  sold  under 
like  circumstances  with  a  warranty  of  quality,  a  broker  employed 
to  sell  such  property,  without  restrictions  as  to  warranty,  may 
give  such  a  warranty  upon  the  sale  as  is  usually  given  in  such 
cases.'  So  where  a  broker  is  given  general  authority  to  sell 
goods  of  a  kind  usually  sold  by  sample,  he  may  bind  his  princi- 
pal by  a  sale  by  sample  with  its  consequent  warranty." 

In  Massachusetts,  however,  it  is  held  that  usage  will  not  jus- 
tify the  assumption  of  a  power  to  warrant  the  merchantable 
quality  of  goods  by  the  broker.' 

§  94:8.  When  may  sell  on  Credit.  A  broker  who  is  employed 
to  sell  goods,  without  restrictions  as  to  the  terms,  has  implied 

»  Pickert  ».  Marston,  68  Wis.  465,  offered  from  which,  under  instruc- 
60  Am.  Rep.  876;  Smith  v.  Tracy,  36 
N.  Y.  82;  Herring  v.  Skaggs,  62  Ala. 
180,  34  Am.  Rep.  4;  Upton  v.  Suffolk 
County  Mills,  11  Cush.  (Mass.)  586, 
59  Am.  Dec.  163;  Ahem  v.  Good- 
speed,  72  N.  Y.  108;  Dingle  v.  Hare, 
7  0.  B.  (N.  S.)  145,  97  Eng.  Com.  L. 
145;  Graves  e.  Legg,  3  Hurl,  and  N. 
210;  Baylifle  v.  Butterworth,  1  Exch. 
425.     See  also  §  349  and  notes. 

»  Andrews «.  Kneeland,  6  Cow.  (N. 
Y.)  354. 

»In  Dodd  V.  Farlow,  11  Allen 
(Mass.)  426,  87  Am.  Dec.  726,  it  is 
held  that  a  merchandise  broker  has 
no  implied  authority  to  warrant 
goods  sold  by  him  to  be  of  a  mer- 
chantable quality;  and  that  such  a 
power  can  not  be  conferred  by  a 
usage  of  trade.  This  case  is  clearly 
opposed  to  the  doctrine  of  the  text, 
but  it  seems  to  be  contrary  to  the 
principle  of  the  cases  cited  in  sup- 
port of  the  text 

In  this  case  Bigelow,  C.  J.,  said: 
"It  was  contended  on  the  part  of  the 
plaintiffs  that  an  authority  to  make 
such  warranty  is  derived  from  the 
usage    of    trade;    and    evidence  was 


tions  from  the  court,  the  jury  have 
found  that  an  authority  was  implied 
in  case  of  a  sale  by  a  broker  of  the 
kind  of  merchandise  described  in  the 
memorandum  to  insert  a  warranty  of 
their  quality  which  would  be  binding 
on  the  vendor.  But  notwithstanding 
this  finding,  we  are  clearly  of  opinion 
that  the  plaintiffs  are  not  entitled  to 
recover,  because  the  alleged  usage,  on 
which  the  jury  have  based  their  ver- 
dict, is  unauthorized  by  law,  and  can- 
not be  regarded  as  valid.  It  contra- 
venes the  principle,  which  has  been 
sanctioned  and  adopted  by  this  court 
upon  full  and  deliberate  considera- 
tion, that  no  usage  will  be  held  legal 
or  binding  on  parties  which  not  only 
relates  to  and  regulates  a  particular 
course  or  mode  of  dealing,  but  which 
also  ingrafts  on  a  contract  of  sale  a 
stipulation  or  obligation  which  is  dif- 
ferent from  or  inconsistent  with  the 
rule  of  the  common  law  on  the  same 
subject.  Dickinson  v.  Gay,  7  Allen 
34,  37,  83  Am.  Dec.  656."  See  also 
to  same  effect  Boardman  v.  Spooner, 
13  Allen  (Mass.)  353,  90  Am.  Dec.  196. 


782 


Chap.  III.]  BROKERS.  §  951. 

power  to  fix  the  terms  of  sale,  including  the  time,  place  and 
mode  of  delivery  and  the  price  of  the  goods,  and  the  time  and 
mode  of  payment,  and  may,  therefore,  sell  upon  a  reasonable 
credit  in  the  absence  of  an  usage  to  the  contrary.* 

§  949.  No  Authority  to  reoeive  Payment.  The  broker  being 
employed  to  make  contracts  between  others  only,  and  not  being 
entrusted  with  the  possession  of  the  goods  he  sells,  or  authorized 
to  deliver  them,  has  no  implied  authority  to  collect  or  receive 
payment  for  goods  sold  by  him  ;*  nor,  it  is  held,  can  such  author- 
ity be  conferred  by  a  mere  local  usage.'  A  payment  made  to 
the  broker  is,  therefore,  at  the  payer's  own  risk,  unless  from 
other  circumstances,  authority  to  receive  it  can  be  inferred.* 

§  950.  No  Authority  to  rescind  or  arbitrate.  A  broker's  au- 
thority to  make  contracts  carries  with  it  no  implied  power  to 
rescind  that  contract  when  made,  without  his  principal's  con- 
sent,' or  to  bind  his  principal  by  an  agreement  to  submit  to  arbi- 
tration, disputes  arising  from  it.' 

IV. 

DUTIES   AWD   LIABILITIES   TO   PRINCIPAL. 

§  951.  Seasonable  Skill  and  Diligence  required.  The  broker 
carries  on  an  independent  calling,  requiring  not  only  a  knowl- 
edge of  the  rules  of  law  and  usage  which  govern  his  transactions, 
but  also  the  exercise  of  judgment,  discretion  and  diligence. 
Important  interests  are  entrusted  to  his  care  and  constant 
demands  are  made  upon  him  for  prudence,  watchfulness   and 

I  Boorman    v.     Brown,     3  Q    B.  Y.)  710,  8.  c.  1  Hun,  283;  Basse tt  «. 

511;  Wiltshire  v.  Sims,  1  Camp.  258;  Lederer,  1  Hun,  274. 

Daylight  Burner  Co.  v.  Odlin,  51  N.  'Higgins©.  Moore,  34  N.  Y.  417. 

H.   56,    13   Am.    Rep.  45;  Riley  b.  *  See  cases  cited  under  first  note  to 

"Wheeler,  44  Vt.  189 ;  Dresden  School  this  section. 

District  V.  Mtna  Ins.  Co.,  62  Me.  330.  s  Saladin  v.  Mitchell,  45  III.  79;  see 

«  Campbell  v.  Hassel,  1  Stark,  233;  also  Stilwell  v.  Mutual  Life  Ins.  Co., 

Graham  v.   Duckwall,  8  Bush  (Ky.)  72  N.  Y.  385;  Stoddart  v.  Warren,   7 

12;    Saladin   v.    Mitchell,    45  111.  79;  Rep.  517. 

Baring  «.  Corrie,   2  B.  and  Aid.  137;  •  Ingraham    v.    Whitmore,   75   111. 

Seipel  V.    Irwin,  30  Penn.    St.    513;  24;  see  also  Michigan  Central  R.   R. 

Iliggina    v.    Moore,    34   N.  Y.   417;  Co.  v.  Gougar  55  111.  603;  Huber  v. 

Gallup  ».  Lederer,  3  Thorn,  and  C.  (N.  Zimmerman,   21  Ala.   488;   Scarbor- 
ough V.  Reynolds,  12  Ala.  252. 

783 


§  952.  THE    LAW    OF    AGENCY.  [Book  V. 

sao-acity.  He  holds  himself  out  to  the  public  as  qualified  to  per- 
form the  duties  of  his  office,  and,  while  he  does  not  warrant  the 
success  of  his  undertakings,  the  law  requires  of  him,  as  of  other 
persons  pursuing  similar  vocations,  that  he  shall  possess  and 
exercise  a  reasonable  degree  of  skill  and  knowledge,  and  that  he 
will  perform  his  undertakings  with  reasonable  diligence  and 
care.  If  he  fails  to  satisfy  this  requirement  and  his  principal 
suffers  loss  thereby,  he  will  be  held  responsible  for  it.'  In  this 
respect  his  liability  is  similar  to  that  of  the  attorney. 

§  952.  Fidelity  to  his  Principal.  Like  other  agents  in  whom 
trust  and  confidence  are  reposed,  the  broker  owes  to  his  princi- 
pal the  utmost  good  faith  and  loyalty  to  his  interests.  He  must 
not  assume  or  continue  the  relation,  if  his  duty  to  his  principal 
and  his  own  interests  will  come  in  conflict."  It  is  his  duty, 
therefore,  to  freely  and  fully  disclose  to  his  principal  at  all  times, 
the  fact  of  any  interest  of  his  own,  or  of  another  client,  which 
may  be  antagonistic  to  the  interests  of  his  principal,*  and  he  will 
not  be  permitted  to  take  advantage  of  his  situation  to  make  gain 
for  himself  by  forestalling  or  undermining  his  principal.* 

If  he  be  employed  to  buy  or  sell  property  for  his  principal,  he 
will  not,  without  the  principal's  full  knowledge  and  consent,  be 
permitted  directly  or  indirectly  to  buy  of,  or  sell  to,  himself  ; » 
and  it  will  make  no  difference  that  his  motive  was  honest,  and 
that  he  did  better  for  his  principal  than  if  he  had  bought  or  sold 
in  the  open  market.*  In  any  such  case,  the  principal  may  repu- 
diate the  transaction  and  regain  his  money  or  recover  his  prop- 
erty.' And  no  usage  of  trade,  unless  it  be  shown  that  the  prin- 
cipal had  such  knowledge  of  it  that  he  must  be  presumed  to  have 

iMylese.  Myles,  6  Bush  (Ky.)237;  Atlee  v.  Fink,  75  Mo.  100,  42  Am. 

Kempker  v.  Roblyer,  29  Iowa,  274;  Rep.  385. 

Stevens «.  Walker,  55  111.  151;  Chan-  «  See  ante,   §§  457-466.     See   also 

dler  c.    Hogle,   58  111.    4G;    Todd*.  Taussig  ®.  Hart,  58  N.  Y.  435.     Can- 

Bourke,  27  La.  Ann.  385.  not  sell  to  or  buy  from  a  firm  or  cor- 

»  See  ante,  §  455.  poration  of  which  he  is  a  member. 

8  See  ante,   §  455;    Farnsworth  v.  Francis  «.  Kerker,  85  111.   190;  Solo- 

Hemmer,  1  Allen  (Mass.)  494,  79  Am.  raons  v.  Pender,  3  H.  «&  C.  639. 

j)ec    756.  «  Taussig  v.  Hart,  58  N.  Y.  425. 

« See  Davis  ».  Hamlin,  108  111.  39,  'See  ante,   §§  454-466;  Taussig  «. 

48  Am.  Rep.  541;  Pegramu.  Railroad  Hart,  mpra. 
Co.,  84  N.  C.  696,  87  Am.  Rep.  639; 

784 


Chap.  III.] 


BROKERS. 


§  953. 


employed  the  broker  with  reference  to  it,  will  justify  the  broker 
in  dealing  with  himself.' 

§  953.  Same  Subject— Acting  for  both  Parties.  For  similar 
reasons,  as  has  been  seen,  the  broker  will  not  be  permitted,  with- 
out the  full  knowledge  and  consent  of  his  principal,  to  represent 
the  other  party  also  in  the  same  transaction.*  If  he  were  com- 
missioned to  sell,  his  duty  to  the  seller  requires  that  he  shall 
obtain  as  large  a  price  as  possible,  while  if  he  were  commissioned 
to  buy,  his  duty  to  the  buyer  would  be  to  buy  at  as  low  a  price  as 
possible.  To  undertake  to  perform  both  duties  at  the  same  time, 
involves  a  manifest  incongruity,  and  one  or  both  of  his  principals 
must  suffer  from  the  attempt.  If,  however,  each  having  full 
knowledge  of  his  relations  to  the  other,  sees  fit  to  trust  him  to 
bargain  for  him,  there  is  no  legal  objection  to  such  a  course,  and 
neither  principal  could  complain,'  But  if  neither  has  such 
knowledge,  and  each  relies  upon  the  broker's  undivided  alles,- 


»  Robinson  v.  Mollett,  L.  R.  7  H.  of 
L.  803,  14  Eng.  Rep.  (Moak)  177,  re- 
versing L.  R.  5  C.  P.  646,  L.  R.  7  C. 
P.  84,  1  Eng.  Rep.  (Moak)  335; 
Pamsworth  v.  Hammer,  1  Allen 
(Mass.)  494,  79  Am.  Dec.  753;  Walker 
V.  Osgood,  98  Mass.  348,  93  Am.  Dec. 
168;  Commonwealth  v.  Cooper,  130 
Mass.  288;  Raisin  v.  Clark,  41  Md. 
158,  20  Am.  Rep.  66. 

» Raisin  v.  Clark,  41  Md.  158,  20 
Am.  Rep.  66;  Scribner  v.  Collar,  40 
Mich.  375,  29  Am.  Rep.  541 ;  Rice  v. 
Wood,  113  Mass.  133,  18  Am.  Rep. 
459;  Lynch  v.  Fallon,  11  R.  I.  311,  23 
Am.  Rep.  458;  Bell  v.  McConnell,  37 
Ohio  St.  396,  41  Am.  Rep.  528;  Wal- 
ker V.  Osgood,  98  Mass.  348,  93  Am. 
Dec.  168;  Lyon  v.  Mitchell,  36  N.  Y. 
235,  93  Am.  Dec.  502 ;  Farnsworth  v. 
Hemmer,  1  Allen  (Mass.)  494,  79  Am. 
Dec.  756;  Rupp  v.  Sampson,  16  Gray 
(Mass.)  398,  77  Am.  Dec.  416;  Mary- 
land Fire  Ins.  Co.  v.  Dalrymple,  25 
Md.  243,  89  Am.  Dec.  779;  Barry  p. 
Schmidt,  57  Wis.  172;  Everhart  v. 
Searle,  71  Penn.  St.  256;  Murray*. 
Beard,  103  N.  Y.  505;  Meyer  v.  Han- 


chett,  43  Wis.  246;  Robbins  ».  Sears, 
23  Fed.  Rep.  874;  Bates  v.  Copeland, 
4  Mc Arthur  (D.  C.)  50;  CoUins  v. 
Fowler,  8  Mo.  App.  588. 

3  Alexander  v.  Northwestern  Uni- 
versity, 57  Ind.  466;  Rice  «.  Wood, 
supra;  Scribner  v.  Collar,  supra;  Bell 
V.  McConnell,  supra;  Rowe  v.  Ste- 
vens, 53  N.  Y.  621 ;  Joslin  v.  Cowee, 
56  N.  Y.  626;  Rolling  Stock  Co.  v. 
Railroad  Co.,  34  Ohio  St.  450;  Leek- 
ins  V.  Nordyke,  66  Iowa,  471. 

It  is  held  in  some  cases  that  al- 
though the  party  who  last  employed 
the  broker  knew  of  his  previous  em- 
ployment by  the  other  party,  yet  the 
contract  between  the  broker  and  his 
second  employer  is  void  as  against 
public  policy.  See  Lynch  v.  Fallon, 
11  R.  I.  311,  23  Am.  Rep.  458;  Raisin 
V.  Clark,  41  Md.  158,  20  Am.  Rep.  66; 
Everhart  v.  Searle,  71  Penn.  St.  256; 
Meyer   v.    Hanchett,    43    Wis.    246. 

Such  an  engagement  would  of 
course  be  a  fraud  upon  the  broker's 
first  employer  who  had  no  knowledge 
that  his  agent  was  entering  into  the 
service  of  the  opposite  party. 


50 


785 


§  953.  THE   LAW   OF   AGENCY.  [Book    Y. 

iance,  it  is  an  obvious  fraud  upon  both,  which  the  law  will  not 
tolerate,  for  him  to  undertake  to  represent  both  parties.  A  con- 
tract made  under  such  circumstances  would  be  voidable  at  the 
option  of  either  party,'  and  each  would  have  a  cause  of  action 
against  the  broker  for  the  commission  paid  to  him,  and  for  such 
other  damages  as  had  been  sustained,  or  might  defend  upon  that 
ground  an  action  brought  by  the  broker.*  Where,  however,  the 
broker  acts  as  a  middleman  merely,  bringing  together  parties 
who  then  deal  with  themselves  and  make  their  own  bargains, 
relying  upon  their  own  judgment  and  skill,  it  has  been  held  in 
some  cases  that  there  is  no  inconsistency  in  the  broker's  attitude 
to  either,  and  that  no  reason  for-  complaint  arises  although  he 
was  employed  by  each  without  the  knowledge  of  the  other.*  It 
is  believed,  however,  that, — unless  in  exceptional  cases  where  the 
broker  is  employed  to  bring  two  specified  persons  together,  and 
has  no  duty  in  negotiation  and  has  not  engaged  his  skill,  knowl- 
edge or  influence, — this  distinction  is  not  sound  in  principle  and 
that  the  same  temptation,  which  the  law  seeks  to  avoid,  exists  in 
this  case,  to  lead  the  broker  to  bring  together  those  only  who 
employ  him,  to  the  exclusion  of  others  who  might  make  better 
terms.* 


>  Herman  v.  Martineau,  1  Wis.  151,  the  interest  of  the  party  who  em- 

GO  Am.  Dec.  368;  Wassell  ®.  Reardon,  ployed   him.      Such   employment  is 

11  Aik.  705,  54  Am.  Dec.  245;  Hinck-  not  like  the  offer  of  a  reward  for  the 

ley  V.  Arey,  27  Me.  362;  Greenwood  performance  of  some   act  which  an- 

•B.  Spring,  54  Barb.  (N.  Y.)  375;  Har-  other  may  undertake  or  forego  as  he 

risen  v.  McIIenry,  9  Ga.  164,  53  Am.  shall    please.      Employment   implies 

Dec.  435;  Switzer  «.  Skiles,  3  Gilm.  acceptance  of  the  service.     A  broker 

(111.)  529,  44  Am.  Dec.  723.  thus  employed  does  not  act  in  good 

8  See  cases  cited  under  note  2  p.  785.  faith  if  he  turn  aside   all   proposals 

»  Herman  v.  Martineau,  1  Wis.  151,  that  are  not  accompanied  with  an  ad- 

60  Am.  Dec.  368;  Stewart  v.  Mather,  ditional  retainer  or  commission.    Yet 

82  Wis.   344;    Orton  v.    Scofield,  61  such  is  the  temptation  upon  him,  if 

Wis.    382;    Mullen    v.    Keetzleb,    7  he  may  levy  a  fee  from  both  parties. 

Bush   (Ky.)  253;  Rupp  v.   Sampson,  When  he  has  secured  the  retainer  of 

16  Gray  (Mass.)  398,  77  Am.  Dec.  416;  the  other  party  he  is  interested,  in 

Siegel  r.  Gould,  7  Lans.  (N.  Y.)  177.  order  to  win  his  double  commission, 

«  ' '  Even  if  he  had  no  authority  to  to  bring  together  these   two  to  the 

bind  his  principal,  and  was  intrusted  exclusion  of  all  others.     The  interests 

with  no  discretion  in  fixing  the  terms  of  his  principal  are  in  danger  of  prej- 

of  the  exchange,  and  his  only  sercice  udice  from  this  counter-interest    in 

«oa«  to  bring  the  parties  together,   he  the  agent     And  besides,  the  broker 

was  bound  to  perform  that  service  in  is  ordinarily  and  almost  inevitably 

786 


Chap.  III.] 


BROKERS. 


§954. 


§  954.  Duty  to  obey  Instructions.  It  is  the  duty  of  the 
broker  to  obey  the  instructions  of  his  principal  in  all  matters 
which  the  principal  has  the  right  to  control.  If  instructed  to 
buy  or  sell,  he  should  carefully  observe  the  limits  fixed  by  the 
principal  as  to  the  amount,  time,  place,  price  and  other  terms 
and  conditions  of  the  transaction,  and  if  he  fails  to  do  so,  with- 
out reasonable  excuse,  he  will  be  liable  to  the  principal  for  the 
loss  that  may  occur.'  If  the  principal's  instructions  be  ambig- 
uous and  capable  of  two  constructions,  and  the  broker,  acting  with 
good  faith  and  reasonable  prudence,  pursues  one  of  them,  he  can 
not  be  held  liable  because  the  principal  may  have  intended  the 
other."     So  if  an  unexpected  emergency  arises,  without  the  bro- 


intrusted,  to  a  greater  or  less  extent,      him,  as  to  render  his  contract  with 


with  the  confidence  of  bis  principal, 
and  a  knowledge  of  his  views  and 
purposes.  This  is  incompatible  with 
like  relations  to  the  other  party.  From 
the  very  nature  and  necessities  of  the 
case,  Buch  two-fold  interests  and  rela- 
tions of  the  broker  are  inconsistent 
with  the  interests  of  the  principal  and 
should  not  be  maintained  without 
his  knowledge  and  consent."  Wells, 
J.,  in  Walker  v.  Osgood,  98  Mass. 
348,  93  Am.  Dec.  168.  And,  speak- 
ing of  Rupp  t.  Sampson,  supra,  the 
same  judge  continues:  "The  verdict 
for  the  plaintiff  was  sustained  in  that 
case;  but  it  was  upon  the  distinct 
ground  that  under  the  instructions 
given  to  the  jury,  they  must  be  held 
to  have  found  that  the  defendant's 
promise  to  pay  was  given,  not  for 
$ervices  in  ilieir  employ  as  a  broker,  but 
for  the  performance  of  a  certain  specific 
ast,  namely,  the  introduction  of 
Clew  (the  other  party)  to  them.  The 
court  considered  that,  so  far  as  the 
mere  performance  of  such  an  act 
was  concerned,  it  could  make 
no  difference  to  the  defendants, 
whether  the  plaintiff  was  in  the  em- 
ploy and  pay  of  the  other  party  or  not; 
and  it  was  not  such  a  fraud  upon  the 
other  party,  though  concealed  from 


the  defendants  void  for  illegality. 
How  far  the  plaintiffs  dealings  with 
the  defendants  were  inconsistent 
(short  of  such  illegality)  with  his  obli- 
gations to  Clew,  was  not  for  deter- 
mination in  that  suit," 

"  The  opinion  has  been  expressed," 
says  Mr.  Justice  Graves,  in  Scribner 
V.  Collar,  40  Mich.  375,  29  Am.  Rep. 
541,  "that  where  the  person  is  em- 
ployed merely  as  a  middleman  to 
bring  persons  together,  and  has  no 
duty  in  negotiation,  and  has  not  en- 
gaged his  skill,  his  knowledge,  or  his 
influence,  he  may  lawfully  claim  pay 
from  both  parties,  Kupp®.  Sampson, 
16  Gray,  898;  Siegel  e.  Gould,  7  Lans. 
177,  No  doubt  such  cases  may  occur, 
but  their  exceptional  character  should 
appear  clearly,  before  they  should  be 
exempted  from  the  general  princi- 
ple," 

'  Taussig  V.  Hart,  58  N,  Y.  425; 
Pulsifer  v.  Shepard,  36  111.  518; 
Jones  t).  Marks,  40  111.  318;  Kuowl- 
ton  V.  Fitch,  52  N.  Y.  288;  White  c. 
Smith,  54  N.  Y.  522;  Scott  v.  Rogers, 
31  N.  Y.  676;  Baker  v.  Drake,  58  N. 
Y,  211,  13  Am.  Rep.  507;  8.  c.  66  N. 
Y.  518,  23  Am.  Rep.  80. 

«  See  ante,  §  484. 


787 


§  955.  THE    LAW    OF    AGENCY.  [Book  Y. 

kcr's  fault,  rendering  a  strict  compliance  with  his  instructions 
impossible,  and  he  adopts  the  course  dictated  by  reasonable  pru- 
dence and  foresight,  he  will  not  be  liable.'  But  in  other  cases, 
the  broker  disregards  his  principal's  instructions  at  the  risk  of 
being  compelled  to  make  good  a  loss  which  may  ensue  there- 
from. 

Thus  if  he  is  instructed  to  effect  insurance,  and  he  wholly 
omits  to  do  so,  or  so  negligently  performs  that  the  insurance  is 
valueless,  or,  in  case  of  inability  to  effect  the  insurance,  fails  to 
give  his  principal  timely  notice  of  that  fact,  the  risk  is  his  own ;' 
if  he  is  directed  to  sell  property  at  a  certain  time,  or  when  it 
reaches  a  certain  price,  and  fails  to  do  so,  he  must  make  good  a 
deficiency  occasioned  by  a  depreciation  in  the  value  within  a 
reasonable  time  after  the  time  fixed  ; '  if  he  is  instructed  to  buy 
upon  a  given  day,  or  when  the  property  reaches  a  certain  price, 
and  omits  to  do  so,  he  will  be  liable  for  profits  lost  if,  within  a 
reasonable  time,  the  property  increases  in  value  ;  *  if  he  is  directed 
to  make  a  certain  disposition  of  stocks,  or  other  property  in  his 
possession,  and  makes  a  different  disposition,  he  may  be  held 
liable,  as  for  a  conversion ;  •  or  if  he  is  instructed  to  buy  at  a 
given  price  and  buys  at  a  greater,  or  to  sell  at  a  given  price, 
and  sells  at  a  less  price,  he  will  be  liable  for  the  resulting 
loss.* 

§  955.  Duty  to  keep  and  render  Accounts  and  pay  Proceeds. 
It  is  the  duty  of  the  broker  to  keep  and  preserve  true  and  accu- 
rate accounts  and  records  of  all  of  his  proceedings  and  transac- 
tions on  account  of  his  principal ;  and  to  render  such  accounts  to 

»  See  ante,  §  481.  Garrett,  GBing.  716;  Farwell  v.  Price, 

•Park©.  Hammond,  4  Camp,  344;  30  Mo.  587;   Schmertz   ».  Dwyer,  53 

Perkins  v.    Washington  Ins.    Co.,  4  Penn.   St.  335;  Eby  v.  Schumacher, 

Cow.  (N.  Y.)  645;  Thorne  v.  Deas,  4  29  Penn.  St.  40. 

Johns.  (N,  Y.)  84;  Gray  v.  Murray,  3  ♦  Baker  v.  Drake,  53  K  Y.  211,  13 

Johns.  (N.  Y.)  Ch.  167;  DeTastett  d.  Am.  Rep.  507,  and  cases  cited  in  pre- 

Crousillat,  2  Wash.  (U,  S.  D.  C.)132;  ceding  note. 

Callander  v.  Oelrichs,  5  Bing.  N.  C.  »  Baker  o.  Drake,  53  N.  Y.  211,  13 

58;  Shoenfeld  v.  Fleisher,  73  111.  404.  Am.  Rep.  507;  s.  c.  66  N.  Y.  .",18,  23 

•Taussig  V.   Hart,  58  N.   Y.   425;  Am.    Rep,  80;    Scott  v.    Rogers,   31 

Pulsifer  v.  Shepard,  36  111.  513;  Jones  N.  Y.  676. 

V.  Marks,  40  111.  313;  Baker  ».  Drake,  •  Laverty  v.  Snethen,  53  How.  Pr. 

53  N.  Y.  211,  13  Am.  Rep.  507,  s.  c.  152,  68  N.  Y.  522,  23  Am.  Rep.  184; 

66  N.  Y,  518,  23  Am.  Rep.  80;  Scott  Dufresneu  Hutchinson,  3  Taunt.  117; 

«.  Rogers,  81  N.  Y.    676;    Davis   v.  Sarjeantc.  Blunt,  16  Johns.  (N.Y.)  74. 

788 


Chap.  III.]  BE0KER8.  §  957. 

the  principal  within  a  reasonable  time.'  It  is  also  his  duty  to 
pay  to  his  principal,  after  deducting  his  own  charges  and  com- 
missions, where  such  may  lawfully*  be  charged,  all  moneys  which 
may  come  into  his  hands  for  his  principal's  account*  As  in  other 
cases,  all  profits  and  advantage  made  by  the  broker,  while  engaged 
in  the  performance  of  his  undertaking  whether  they  are  the  fruit 
of  the  performance  or  violation  of  his  duty  to  his  principal, 
belong  to  the  principal,  and  the  broker  must  account  to  the  latter 
for  them.* 

V. 

DUTIES    AND    LIABILITIES    TO   THIBD   PEE80N8. 

§  956.  Not  liable  when  Principal  disclosed.  A  broker,  like 
other  agents,*  who  contracts  for  and  in  the  name  of  a  disclosed 
principal,  cannot  be  held  personally  liable  upon  such  contract,  if 
it  be  one  which  he  was  authorized  to  make.* 

§  957.  Liable  when  Principal  concealed.  But  where  the 
broker  conceals  either  the  fact  of  his  agency,  or  the  name  of  his 
principal,  and  contracts  in  his  own  name,  he  will  be  held  person- 
ally liable,  although  the  principal  may  be  liable  also  when  dis- 
covered.* It  is  not  enough  to  relieve  the  broker  that  the  other 
party  knew  that  he  acted  as  an  agent  if  he  did  not  know  who 
the  principal  was. 

And  he  must  have  actual  knowledge.  Information  sufficient 
to  create  an  inference,  or  to  put  him  upon  inquiry  has  been  held 
to  be  not  enough.' 

'  Payne  v.  Waterston,  16  La.  Ann.  Baltzen   v.    Nicolay,  58    N.  T.   470; 

239;  Haas  v.  Damon,  9  Iowa,   589;  York  Co.  Bank  «.  Stein,  24  Md.  447; 

Williams  v.  White,  70  Me.  138.  Jones  «.  iEtna  Ins.  Co  14  Conn.  501; 

a  See  ante,  §  523,  et  seq.  Wheeler  v.  Reed,  36  111.  83;  Poole  v. 

»  See  ante,  §  469.  Rice,  9  W.  Va.  73. 

*  See  ante,  %  555.  Where  a  broker  sold  "for  and  on 

» Ferris  «.    Kilmer,  48   N.  Y.    300;  account    of   owner"    who    was    not 

Tiller  v.  Spradley,  39  Ga.  35.  named,  it  was  held  that  a  custom  to 

«  Cobb  V.  Knapp,  71  N.  Y.  348,  27  charge  the  broker  as  well  as  the  prin- 

Am.  Rep.51;  Youghiogheny  Iron  Co.  cipal,  was  not  inconsistent  with   the 

V.  Smith,  66  Penn.  St.  340;  Jessup  v.  contract,  and  was  admissible.     Pike 

Steurer,   75    N.   Y.    613;   Button  v.  «.  Ongley,  18  Q.    B.  Div,   708.     See 

Winslow,    53  Vt    430;    Baldwin  e.  also  Barrow  v.    Dyster,  13   Id.    635; 

Leonard,  39  Vt.  266;  94  Am,    Dec.  Hutcheson  v.  Eaton,  Id.  861. 

334;  Gerrard  «.  Moody,    48  Ga.  96;  'Cobb«.  Knapp,  71    N.  Y.  348,  27 

Beymer  v.  Bonsall,  79  Penn,  St,  398;  Am.  Rep.  51;  Raymond  v.  Crown  & 

789 


§  958.  THE   LAW    OF   AGENCY.  [Book  V. 

§  958.     Liable  when  he  expressly  charges  himself.     And  so, 
though  the  principal  be  known,  it  is  competent  for  the  broker,  if 
he  so  elect,  to  charge  his  own  individual  credit,  and  where  he  has 
done  so,  he  is,  of  course,  personally  responsible.^     Whether  he 
has  done  so  or  not,  is  a  question  of  fact  to  be  determined  from 
all  the  circumstances  of  the  case,  unless  the  contract  be  in  writ- 
ing, couched  in  unmistakable  terms.'     Where  the  principal  is 
known,  the  presumption  is  that  the  broker  intended  to  charge  hira 
rather  than  himself,  and,  therefore,  the  burden  of  proving  a  per- 
sonal undertaking  upon  the  part  of  the  broker,  rests  upon  the  party 
who  alleges  it.*     If  knowing  both  the  principal  and  the  broker, 
and  having  the  opportunity  to  choose  between  them,  the  other 
party  sees  fit  to  give  exclusive  credit  to  the  broker,  he  can  not 
hold  the  principal  also.* 

§  959.  Liable  when  he  acts  without  Authority.  A  broker, 
like  any  other  agent,  may  also  render  himself  liable  to  third  par- 
ties with  whom  he  deals,  for  injuries  which  they  may  sustain  by 
reason  of  his  assuming  to  have  and  exercise  an  authority  which 
he  did  not  in  fact  possess,  whether  the  defect  was  owing  to  a  total 
absence  of  any  authority,  or  to  the  fact  that  the  authority  he  really 
possessed  was  insufficient  for  the  purpose.* 

§  960.  Liability  for  Money  received.  The  liability  of  the 
broker  to  third  persons  for  money  received,  either  from  them, 
but  unlawfully,  on  the  principal's  account,  or  from  the  principal 
for  them,  depends  upon  the  same  considerations  which  determine 
the  liability  of  other  agents  under  like  circumstances  ; — a  subject 
which  has  already  been  discussed.* 

§  961.  When  guilty  of  a  Conversion.  A  broker  acting  merely 
as  such  and  contracting  only  for  and  in  behalf  of  his  princi- 
pal, is  not  liable  to  the  true  owner  as  for  a  conversion  where  it 
appears  that  in  the  regular  course  of  trade  he  has  been  employed 

Eagle    Mills,    2   Mete.    (Mass.)  319;  Williams.  5  Gray  (Mass.)  557;  Baxter 

Faikenburg».   Clark.   11   R.    I.   278;  «.  Duren,  21  Me.  434. 

Royce  v.  Allen,  28  Vt.  234;  Baldwin  »  See  ante,  §§  551,  252,  558. 

V.  Leonard,  39  Vt.  260,   94  Am.  Dec.  »  See  ante,  §  558. 

324;  Wilder?).  Cowles,  100  Mass.  487;  *  See  ante,  §  558. 

Nixon  V.  Downey,  49  Iowa,  166.  *  See  ante,  %  558. 

But  see,  CO /i«m;  Wright  u.    Cabot,  »  See «n<e,  §541-550.     See  also  Fir- 

89  N.  Y.    570;  and  see  also  Bliss  v.  bank  v.  Humphreys,  18  Q.  B.  Div.  54 

Bliss,  7  Bosw.  (N.  Y.)  345;  Lyon  v.  •  See  ante,  §  566,  et  seq. 

790 


Chap.  III.]  BK0KEK8.  §  9C3. 

by,  and  has  sold  goods  for,  one  who,  in  good  faith  and  in  the 
exercise  of  reasonable  prudence,  he  believed  to  be  the  owner.' 
But  a  broker  who,  however  innocently,  obtains  possession  o*'  the 
goods  of  a  person  who  has  been  fraudulently  deprived  of  them, 
and  disposes  of  them  as  being  himself  the  principal  or  owner  of 
them,  is  liable  to  the  owner  as  for  a  conversion.* 

Thus  where  B  had  fraudulently  obtained  cotton  from  F,  and 
H,  whose  ordinary  business  was  that  of  a  cotton  broker,  and  who 
was  utterly  ignorant  of  the  fraud  of  B,  purchased  the  cotton  from 
B,  in  the  belief  and  expectation  that  M,  one  of  his  ordinary 
clients,  would  accept  it,  and  M  did  afterwards  accept  it,  though 
H  received  from  M  a  broker's  commission  only  and  not  a  trade 
profit  on  the  sale,  it  was  held  that  in  this  instance  H  had  made 
himself  a  principal,  and  by  transferring  the  cotton  to  M  had  com- 
mitted an  act  of  conversion,  which  made  him  liable  in  trover  to 
F,  the  true  owner  of  the  cotton.* 

VI. 

BIGHTS    OF   BKOKER    AGAINST   PRINCIPAL. 

1.     Right  to  Compensation, 

§  962.  Entitled  to  Compensation.  A  broker,  like  any  other 
agent,  who  performs  his  undertaking  is  entitled  to  compensation 
for  his  services.  This  compensation  is  usually  a  commission 
upon  the  price  or  value  of  the  thing  bought,  sold  or  exchanged 
by  means  of  bis  endeavors. 

§  963.  How  Amount  determined.  It  is  entirely  competent 
for  the  parties  to  agree  upon  the  amount  of  compensation  to  be 
paid,  and  the  terms  and  conditions  of  its  payment,  and  such 
agreements  when  fairly  made  will  be  enforced.  Where  no  rate 
of  compensation  is  agreed  upon,  it  may  be  determined  by  refer- 
ence to  the  usage,  if  any,  prevailing  at  the  same  time  and  place 
in  like  eases ;  *  but  usage  will  not  be  permitted  to  contravene 

*  See   Roach   e.    Turk,    9    Heisk,  sion  of  opinion  among  the  judges  of 

(Tenn.)  708,  24  Am.  Rep.  860.  the  various  courts,  contains  interest- 

2  Hollins  e.  Fowler,  L.  R.  7  H.  L.  ing  discussions  of  the  broker's  duties 

727,  14  Eng.  Rep.  138.  and  liabilities. 

»  Hollins  «.  Fowler,   mpra.      This  *  Morgan  v.  Mason,  4  E.  D.  Smith 

case    which  occasioned  much  divi-  (N.  Y.)  636 

791 


§96i. 


THB   LAW    OF    AGENCY. 


[Book  Y. 


the  express  agreement  of  the  parties.  *  Where  no  agreement 
was  made  and  no  usage  prevails,  the  broker  will  be  entitled  to  a 
reasonable  compensation.* 

§  964.  Broker  must  show  Employment.  To  entitle  the  bro- 
ker to  commissions  for  his  services,  he  must  make  it  appear  that 
the  services  were  rendered  under  an  employment  and  retainer  by 
the  principal,'  or  that  the  latter  accepted  his  agency  and  adopted 
his  acts.  *  If  he  rendered  the  services  as  a  mere  volunteer,  with- 
out any  employment,  express  or  implied,  he  cannot  recover  com- 
missions.* 

§  965.  Broker  mvist  have  performed  Undertaking.  The  bro- 
ker must  also  show  that  he  has  completed  his  undertaking  accord- 
ing to  its  terms,  or  that  its  completion  was  prevented  without  his 
fault,  by  his  principal.  What  constitutes  completion  is,  however, 
a  question  of  no  little  difficulty  in  many  cases,  depending,  as  it 

•  Ware  v.  Hayward  Rubber  Co. ,  3 
Allen  (Mass.)  84;  Illiugsworth  v. 
Slosson,  19  III,  App.  613;  Bower  v. 
Jones,  8  Bing.  65;  Collender  v.  Dins- 
more,  55  N.  Y.  200;  Sanford  v. 
Rawlings,  43  111.  92. 

"It  is  almost  needless  to  say " 
remarks  Mr.  Justice  Paxson,  "that 
to  establish  such  a  custom,  it  must  be 
reasonable,  certain,  uniform,  contin- 
ued, and  moreover  generally  under- 
stood and  acquiesced  in  by  persons 
engaged  in  buying  and  selling.  *  • 
Where  a  custom  exists,  parties 
are  presumed  to  deal  in  view  of  it, 
and  where  no  agreement  is  made  as 
to  commissions,  that  they  agree  to 
pay  the  customary  rate.  In  the  ab- 
sence of  such  custom,  and  of  any 
as;reement  as  to  rate,  the  measure  of 
compensation  would  be  the  value  of 
the  service  rendered.  This  is  always 
a  safe  standard  and  should  never  be 
set  aside  for  a  custom  unless  the  latter 
is  proved  to  be  so  well  known  and 
80  long  persisted  in  that  the  parties 
must  be  presumed  to  have  known  of 
it.  A  usage  which  is  to  govern  a 
question  of  right,  should  be  so  cer- 
tain, uniform  and  notorious  as  prob- 


ably to  be  known  to  and  understood 
by  the  parties  as  entering  into  their 
contract.  United  States  v.  Duval. 
Gilp.  356.  And  it  cannot  be  proved 
by  isolated  instances.  Dean  v  Swoop, 
2  Binn.  72;  Cope  v.  Dodd,  1  Harris 
33,"  In  Potts  «.Aechternacht,93  Penn. 
St.  138,  141. 

s  Potts  e.  Aechternacht,  93  Penn. 
St.  138. 

»  Hinds  V.  Henry,  36  N.  J.  L.  328; 
Keys  V.  Johnson,  68  Penn.  St.  42; 
Twelfth  Street  Market  Co.  v.  Jack- 
eon,  102  Penn.  St.  269;  Coffin  «. 
Linxweiler,  34  Minn.  820. 

*  Keys  V.  Jolinson,  supra;  Twelfth 
Street  Market  Co.  v.  Jackson,  supra; 
Atwater  v.  Lockwood,  39  Conn.  45; 
Hinds  V.  Henry,  supra:  Sibbald  e. 
Bethlehem  Iron  Works,  83  N.  Y.  378, 
38  Am.  Rep.  441. 

8  Hinds  V.  Henry,  supra;  Cook  v. 
Welch.  9  Allen  (Mass.)  350. 

Thus  where  a  broker  whom  the 
principal  had  refused  to  employ,  hav- 
ing learned  the  price  sent  a  person  to 
him  who  bought  the  property,  it  was 
held  that  he  was  not  entitled  to  a 
commission.  Pierce  v.  Thomas,  4  K 
D.  Smith,  (N.  Y.)  354. 


792 


Chap.  III.]  BROKERS.  §  9G6. 

does,  upon  vague  and  indefinite  agreements  between  the  parties. 
The  parties  are  at  liberty  to  make  the  payment  of  commissions 
dependent  upon  such  lawful  conditions  and  contingencies  as  please 
them,  and,  where  no  improper  advantage  is  taken,  their  express 
stipulations  must  prevail,  although  the  result  be  that  the  broker 
finds  that  he  has  risked  his  labor  and  expenses  upon  the  mere 
caprice  of  his  employer,  as  when  he  undertakes  to  find  a  purchaser 
of  property  upon  terms  satisfactory  to  the  seller.  For  many 
cases  no  more  satisfactory  general  rule  can  be  laid  down  than  to 
ascertain,  1.  What  did  the  broker  undertake  to  do  ?  2.  Has  he 
completed  that  undertaking  within  the  time  and  upon  the  terms 
stipulated  ?  and  3,  If  not,  is  the  default  attributable  to  his  own 
act  or  to  the  interference  of  the  principal  ?  If  upon  such  an 
inquiry  it  be  determined  that  the  broker  has  performed  within 
the  time,  and  upon  the  terms,  agreed  upon,  he  is  entitled  to  his 
commissions ;  if  he  has  not,  he  is  not  so  entitled,  unless  the  per- 
formance was  prevented  by  the  principal  under  circumstances 
which  gave  him  no  right  then  and  so  to  prevent  it.  It  will  be 
seen  from  this  rule  that  where  the  time  is  limited,  the  perform- 
ance must  be  within  that  time  ;  and  the  broker  will  not  be  enti- 
tled to  commissions  because  efforts  begun  within  that  time  bear 
fruit  after  its  expiration.  So,  if  particular  terms  or  conditions 
are  stipulated  for,  the  performance  must  be  in  accordance  with 
tliose  terms ;  and  no  performance  upon  other  terms  will  suffice 
unless  accepted  by  the  principal,  although  the  other  terms  may 
be  considered  more  favorable  than  those  specified. 

§  966.  Same  Subject— Real  Estate  Broker.  These  principles 
have  been  most  frequently  applied  in  the  case  of  brokers  em- 
ployed to  sell  real  estate,  and  a  consideration  of  their  application 
here  will  throw  light  upon  the  whole  subject.  A  broker 
employed  to  sell  real  estate  may  be  authorized  and  required  by 
the  terms  of  his  undertaking,  not  only  to  find  the  purchaser,  but 
to  procure  from  him  a  valid  written  agreement  binding  him  to 
purchase  upon  the  terms  specified,  and  where  this  is  his  under- 
taking, unless  the  principal  waives  this  condition  by  acceptino- 
the  purchaser  and  selling  to  him,  or  otherwise,  the  broker  has 
not    earned  his  commissions   until   it   is   performed;*    but  the 

•Hyamst).  Miller,  71  Ga.  608;  Gil-  Mass.  255,  3  Am.  Rep.  349;  Cook  v. 
Christ  V.  Clarke,  —  Tenn.  —  8  S.  W.  Fiske,  12  Gray  (Mass.)  491;  Kerfoot 
Rep.  572;  Tombs  v.  Alexander,  101      v.  Steele,  113  111.  610;  Love  v.  Miller, 

793 


§966. 


THE    LAW    OF    AGENCY. 


[Book  V. 


authority  and  duty  of  the  real  estate  broker,  as  ordinarily  em- 
ployed, do  not  go  so  far.  As  so  employed,  he  has  no  implied 
authority  to  bind  his  principal  by  a  written  contract  to  sell  the 
real  estate,*  and,  unless  he  contracts  for  more,  it  is  no  part  of  his 
implied  duty  to  complete  a  binding  contract  with  the  purchaser.' 
His  duty  is  performed  when  he  has  found  a  purchaser  who  is 
ready,  willing  and  able  to  purchase  upon  the  terms  specified,*  or, 
if  no  particular  terms  were  agreed  upon,  when  he  has  produced 
a  purchaser  to  whom  the  principal  sells.* 

It  is  not  necessary  that  the  broker  should  personally  have  con- 
ducted the  negotiation  between  his  principal  and  the  purchaser,* 
or  that  he  should  have  been  present  when  the  bargain  was  com- 
pleted,' or  even  that  the  principal  should,  at  the  time,  have  known 
that  the  purchaser  was  one  found  by  the  broker.'     It  is  indispen- 


53  Ind.  294;  Pearson  v.  Mason,  120 
Mass.  53;  Leete  «.  Norton,  43  Conn. 
219. 

*  Ryon  V.  McGee,  2  Mackey(D.  C.) 
17;  Duffy  v.  Hobson,  40  Cal.  240; 
Rutenberg  «.  Main,  47  Cal.  213. 

2  Desmond  v.  Stebbins,  140  Mass. 
889;  McCreery  «.  Green,  38  Mich 
185. 

»  McGavock  v.  Woodlief,  20  How. 
(U.  8.)  221;  Hinds  v.  Henry,  36  N. 
J.  L.  828;  Frazer  v.  Wyckofl,  63  N. 
Y.  445;  Livezy  «.  Miller,  61  Md.  386: 
Coleman  v.  Meade,  13  Busii  (Ky.) 
858;  Burling  v.  Gunther,  12  Daly, 
(N.  Y.  )  6;  Gaty  v.  Foster,  18  Mo. 
App.  639;  Pratt  o.  Hotchkiss,  10  111. 
App.  603;  Goss  «.  Stevens,  32  Minn. 
472;  Fischer  v.  Bell,  91  Ind.  243; 
VeazieiJ.  Parker,  72  Me.  443;  Wat- 
son V.  Brooks,  8  Sawy.  (U.  S.  C.  C.) 
316;  Neilson  v.  Lee,  60  Cal.  555; 
Phelan  v.  Gardner,  48  Cal.  806;  Bell 
T.  Kaiser,  50  Mo.  150;  Tyler  v.  Parr, 
52  Mo.  249;  Kock  v.  Emmerling,  22 
How.  (U.  S.)  69:  McCreery  v.  Green, 
88  Mich.  172;  Fox  v.  Rouse,  47  Mich. 
658;  Higgins  v.  Moore,  84  N.  Y.  417; 
Barnard  v.  Monnot,  34  Barb.  (N.  Y.) 
90;  Duclos  v.  Cunningham,  103  N. 
Y.  678:   McClane  v.  Paine,  49  N.  Y. 


561;  Jones  p.  Alder,  34  Md.  440;  Do- 
lan  p.-Scanlan,  57  Cal.  201;  Timber- 
man  V.  Craddock,  70  Mo.  688. 

*  Cassady  v.  Seeley,  69  Iowa,  509 ; 
Iselin  V.  Griffith,  62  Iowa  668;  Hanna 
».  Collins,  69  Iowa  51 ;  Fisk  v.  Hena- 
rie,]3  Oregon,  156;  Stewart  B.Mather. 
32  Wis.  344;  Glenthworth  v.  Luther, 
21  Barb.  (N.Y.)  147;  Sibbald  v.  Beth- 
lehem Iron  Works,  83  N.  Y.878,  38 
Am.  Rep.  441;  Desmond  v.  Stebbins. 
140  Mass.  339;Veazie  v.  Parker,  72 
Me.  448;  Sussdorflf  v.  Schmidt,  55  N. 
Y.  819;  Attrill  v.  Patterson,  58  Md. 
226;  Coleman  v.  Meade,  13  Bush 
(Ky.)  358;  Rice  v.  Mayo,  107  Mass. 
550. 

s  Royster  v.  Mageveney,  9  Lea 
(Tenn.)  148;  Timberman  v  Craddock, 
70  Mo.  638. 

'  Royster  v.  Mageveney,  supra; 
Timberman  v.  Craddock,  svpra; 
Sibbald  v.  Bethlehem  Iron  Works,  83 
N.  Y.  378,  88  Am.  Rep.  441 ;  Dreis- 
back  V.  Rollins,  —  Kans,  —  18  Pac. 
Rep.  187. 

T  Goffe  V.  Gibson,  18  Mo.  App.  1; 
SussdorfE  v.  Schmidt,  55  K  Y,  320: 
Wylie  V.  Marine  Nat.  Bank,  61  N.Y. 
415. 


794 


Chap.  III.] 


BROKERS. 


§  U6G. 


sable,  but  it  is  also  sufficient,  that  his  efforts  were  the  procuring 
cause  of  the  sale;  that  through  his  agency  the  purchaser  was 
brought  into  communication  with  the  seller,  although  the  parties 
then  negotiated  in  person.'  His  efforts  may  have  been  slight, 
but  if  they  brought  about  the  desired  result,  no  more  could  be 
asked  ;  and  their  operations  may  have  been  circuitous,  but  if  the 
purchases  was  the  natural  and  proximate  result  of  his  endeavors, 
it  is  sufficient.*     The  law  prescribes   no   particular   method  of 


1  Timberman  «.  Craddock,  70  Mo. 
638;  Bell  v.  Kaiser,  50  Mo.  150;  Tyler 
V.  Parr,  53  Mo.  249;  Royster  v.  Ma- 
geveney,  9  Lea  (Tenn.)  148;  Sussdorff 
V.  Schmidt,  supra;  Veazie  v.  Parker, 
72  Me.  443;  WyckofE  v.  Bliss,  12 
Daly  (N.Y.)  324;  Attrill®.  Patterson, 
58  Md.  226. 

2  Lincoln  v.  McClatchie,  36  Conn. 
136;  Green  v.  Bartlett,  14  C.  B.  (N. 
S.)681;  Shepherd  v.  Hedden,  29  N. 
J.  L.  334;  Pope  v.  Beals,  108  Mass, 
561. 

Some  illustrations  of  what  has  been 
deemed  sufficient  in  such  cases  may  be 
of  use:  Thus  in  Lincoln  t>. McClatchie, 
36  Conn.  136,  the  defendant  had  put 
into  the  hands  of  the  plaintiff,  a  real 
estate  broker,  a  house  on  a  certain 
street  to  sell  for  $6,500,  instructing 
him  not  to  advertise  it,  but  to  sell  by 
private  sale.  Afterwards  the  plain- 
tiff advertised  in  general  terms  that 
he  had  houses  on  that  street  to  sell. 
One  G,  who  lived  on  the  street,  who 
had  been  looking  for  a  house  on  the 
same  street  for  his  friend  B,  saw  the 
advertisement  and  went  to  plaintiiT's 
office  where  he  learned  that  defend- 
ant's house  was  for  sale.  Plaintiff, 
by  mistake,  had  entered  the  price  on 
his  books  at  $6,000  and  so  informed 
G.  G  informed  B  that  the  house  was 
for  sale  at  $6,000  and  advised  him  to 
buy  it.  B  then  examined  the  house 
and  entered  into  negotiations  with  de- 
fendant, which  resulted  in  B's  pur- 
chase of  the  house  with  less  than  a 
hundred   dollars'  worth  of  personal 

79 


property  included,  at  $6,500.  B 
never  saw  plaintiff  in  the  transaction 
and  was  never  in  his  office,  and  G's 
action  was  purely  voluntary.  It  was 
held,  however,  that  the  plaintiff's 
efforts  were  the  procuring  cause,  and 
that  he  was  entitled  to  his  commis- 
sion. 

The  same  result  was  reached  in  a 
very  similar  case  in  Nebraska.  A 
employed  broker  B  to  sell  his  farm. 
B  advertised  the  property  in  a  news- 
paper. Farmer  C  saw  the  advertise- 
ment and  told  his  neighbor  D  that 
A's  farm  was  for  sale.  D  went  to  A 
and  bought  the  farm.  Held  that  B 
was  entitled  to  his  commissions.  An- 
derson V.  Cox,  16  Neb.  10. 

So  in  Green  v.  Bartlett.  14  C.  B. 
(N.  S.)  681.  an  auctioneer  and  broker 
had  been  employed  to  sell  an  estate. 
Having  advertised  it  and  made  an 
unsuccessful  effort  to  sell  it  by  auc- 
tion, he  was  asked  by  a  person  who 
had  attended  the  sale,  who  the  owner 
was,  and  he  directed  him  to  the  prin- 
cipal. Ultimately  this  person  pur- 
chased the  estate  of  the  principal, 
without  any  further  intervention  of 
the  broker,  but  the  court  held  that  he 
was  the  procuring  cause  of  the  sale 
and  entitled  to  his  commission. 

But  the  law  regards  only  proxi- 
mate, and  not  remote,  causes;  hence 
if  after  the  broker's  services  have 
failed  to  accomplish  a  sale,  and  afte? 
the  proposed  purchaser  has  decided 
not  to  buy,  other  persons  itJ  uce  him 
to  do  so,  the  broker  is  not  entitled  to 


g  960. 


THE    LAW    OF    AGENCY. 


[Book  V. 


procedure,  nor  has  it  any  other  standard  by  which  to  measure 
exertion,  in  such  a  case,  than  the  result  attained. 

It  is  also  indispensable  that  the  purchaser  produced  should  be 
one  ready,  willing  and  able  to  purchase  upon  the  terms  specified, 
if  any  were  fixed,  for  if  he  be  willing  to  buy  only  on  different 
terms  or  at  a  different  price  or  upon  other  conditions,  the  broker 
will  not  be  entitled  to  his  commission,^  unless  the  variance  be 
waived  by  the  principal.'  So,  it  is  indispensable  that  the  pur- 
chaser should  be  found  within  the  time  limited,  for  if  the  brok- 
er's exertions  do  not  produce  the  buyer  until  after  that  time  has 
expired,  it  is  not  enough,'  unless  the  principal  has  caused  the 


commissions,   Earp  v.   Cummins,  54 
Penn.  St.  394,  93  Am.  Dec.  718.     So 
in  Mansell  v.  Clements,  L.  R.  9  C.  P. 
139,  8  Eng.  Rep.  449,  defendant  had 
placed  a  house  in  plaintiffs'  hands  to 
sell.     A  was  looking  for  a  house  in 
that  neighborhood  and  seeing  a  notice 
(not  posted  by  nor  referring  to  the 
plaintiffs)  that  this  house  was  for  sale, 
made    some    inquiries  about  it,  but 
concluded    that  the    house  was  too 
large.      He  afterwards    called  upon 
plaintiffs  to    see   what  houses  they 
had,  and  received  from  them  cards  of 
admission    and    terms    for    several 
houses,  among  which  was  the  one  in 
question.      He  examined   the  house 
and  finally  purchased  it  through  an 
other  agent  of  defendant  for  a  less 
sum  than  that  named,   the  plaintiff 
having  nothing  to  do  with  the  whole 
transaction  other  than  giving  A  the 
card  and  terms.     A  stated  upon  the 
trial  that  he  thought  he  should  not 
have  purchased  the  house  if   he  had 
not  received  from  plaintiffs  the  card 
and  terms.     Held  that  they  were  en- 
titled to  their  commissions. 

>  Hoyt  V.  Shipherd,  70  111.  309; 
Ward  V.  Lawrence,  79  111.  295;  Rees 
V.  Spruance,  45  111.  308;  Hamlin©. 
Schulte,  31  Minn.  486,  17  Reporter 
562;  Clendenon  v.  Pancoast,  75  Penn. 
St.  213;  Schwartze  v.  Yearly,  31 
Md.  270;McQavockt».  Woodlief,  20 


How.  (U.  S.)  221;  Wylie  «.  Marine 
Nat.  Bank,  61  N.  Y.  415;  Williams 
V.  McGraw,  53  Mich,  480;  Hayden  v. 
Grillo,  26  Mo.  App.  289;  Bradford*. 
Menard,  35  Minn.  197. 

8  Where  the  price  was  fixed  a  pur- 
chaser must  be  produced  ready,  will- 
ing and  able  to  buy  at  that  price,  and 
if  the  purchaser  offered  will  not  buy 
at  that  price  but  only  at  a  lower,  the 
broker  will  not  be  entitled  to  com- 
missions, unless  there  was  collusion 
between  the  principal  and  purchaser. 
A  sale  to  such  a  person  is  not  a 
waiver  of  the  terms  fixed.  The  bro- 
ker would  be  entitled  to  commissions, 
however,  if  the  principal  knowing 
that  that  the  purchaser  produced  was 
ready,  willing  and  able  to  buy  at  the 
price  fixed,  voluntarily  sells  to  him  at 
a  less  price.  McArthur  v.  Slauson, 
53  Wis.  41.  Compare  with  Stewart 
V.  Mather,  32  Wis.  344. 

8  Beauchamp  v.  Higgins,  20  Mo. 
App.  514;  Fultz  ».  Wimer,  34  Kan. 
576;  Watson  v.  Brooks,  11  Ore.  371; 
McCarthy  v.  Cavers,  66  Iowa  342. 

Where  a  broker  was  to  have  a  com- 
mission, if  he  found  a  purchaser 
within  a  "short  time,"  it  was  held 
that  a  performance  within  two  weeks 
was  sufficient.  Smith  v.  Fairchild, 
7  Col,  510.  Broker  has  not  performed 
who  on  last  day  produces  a  purchaser 
who  will  buy  if  he  has  time  to  inves- 


796 


Chap.  III.] 


BBOEEBS. 


§90G. 


delay,'  or  unless  he  waives  it.*  But  if  the  purchaser  is  found 
and  negotiations  are  begun,  within  the  time  limited,  it  is  imma- 
terial that  they  were  not  fully  consummated  until  afterwards.' 

It  is  also  incumbent  upon  the  broker  to  show  that  the  purchaser 
produced  was  ready  or  able  pecuniarily  to  complete  the  pur- 
chase. Pecuniary  responsibility  may  be  implied  in  many  cases, 
but  in  cases  of  this  nature  the  broker  must  be  prepared  to  prove, 
if  necessary,  that  the  purchaser  found  by  him  was  pecuniarily 
able  to  pay  the  purchase  price  agreed  upon,  and  he  cannot  satisfy 
his  undertaking  by  the  production  of  a  mere  "  man  of  straw."  * 

If  the  broker  abandons  the  undertaking  before  he  has  found 
the  purchaser,  he  can  claim  no  commissions  for  a  subsequent  sale, 
tliough  made  to  a  purchaser  whom  he  had  previously  tried  to 
reach.' 

tigate  title.  Watson  v.  Brooks,  «*-  (Ky.)  358;  Pratt  v.  Hotchkiss,  10  111. 
pra. 

*  Beauchamp  v.  Higgins,  aupra; 
Fultz  V.  Wimer,  supra;  Watson  v. 
Brooks,  iupra. 

»  If  the  principal  without  objection 
then  deals  with  the  purchaser  so 
found  he  waives  the  delay.  See 
cases  cited  in  note  4,  p.  794. 

« Goffe  V.  Gibson,  18  Mo.  App,  1. 

<  "  We  think  "  said  Beck,  J.,  "  that 
in  order  to  entitle  plaintiffs  to  re- 
cover, something  more  than  a  mere 
offer  to  purchase  should  be  shown  by 
them.  Such  an  offer  could  be  made 
by  one  without  means,  and  who  is 
in  no  condition  to  comply  with  the 
terms  of  the  sale,  and  against  whom  a 
claim  for  damages  resulting  from  a 
failure  to  perform  the  contract  of 
purchase  could  not  be  enforced.  An 
offer  from  such  an  one  ought  not  to 
be  considered  as  constituting  the  per- 
formance of  plaintiff's  undertaking 
,0  negotiate  the  sale  of  the  land.  As 
the  pecuniary  responsibility  of  the 
purchaser  was,  or  ought  to  have  been, 
known  to  the  plaintiffs,  the  burden 
rested  upon  them  to  show  il."  In 
Iselin  V.  Gritfith,  62  Iowa  668,  17 
Keporter  431 ;  and  to  the  same  effect 
are:    Coleman   «.  Meade,    13   Bush 


App.  603;  McGavock  v.  Woodlief,  29 
How.  (U.  S.)  221, 

But  on  the  other  hand  in  Hart  v. 
Hoffman,  44  How.  Pr.  168,  the  Court 
of  Appeals  of  New  York  held  that 
no  such  proof  is  required,  saying  that 
solvency  is  presumed;  and  the  same 
ruling  was  followed  in  Cook  v. 
Kroemeke,  4  Daly,  (N.  Y.)  268;  and 
Goss  V.  Broom,  31  Minn.  484. 

See  Duclos  v.  Cunningham,  102  N. 
Y.  678,  6  N.  East.  Rep,  790. 

6  Earp  V.  Cummins,  54  Penn.  St. 
394,  93  Am.  Dec.  718;  Wylie  v. 
Marine  Nat,  Bank,  61  N.  Y.  415; 
Holley  V.  Townsend,  2  Hilton  (N.  Y.) 
34;  Sibbald  v.  Bethlehem  Iron  Works, 
83  N.   Y.  378,  38  Am.  Rep.   441. 

So  where  a  broker's  efforts  to  sell  the 
property  had  failed,  and  the  principal 
had  revoked  his  authority,  it  was  held 
that  the  principal  was  not  liable  for 
commissions  though  he  afterwards 
sold,  through  other  brokers,  to  a  per- 
son to  whom  the  first  broker  had  en- 
deavored to  sell,  it  appearing  that 
the  revocation  was  in  good  faith  with 
no  intention  then  of  renewing  the 
negotiations.  Uphoff  v.  Ulrich,  2  111. 
App.  p.  399. 

So  where  all  attempts  by  the  bro- 


T97 


§967. 


THE    LAW    OF    AGENCY. 


[Book  Y. 


These  agreements  to  pay  a  commission  for  finding  a  purchaser 
for  real  estate  are  not  within  the  Statute  of  Frauds,  and  hence 
are  valid  though  not  in  writing.* 

§  967.  Same  Subject— Not  defeated,  how.  Unless  the  princi- 
pal has  expressly  waived  that  right,  he  is  at  perfect  liberty  to  sell 
the  property  by  his  own  efforts,  notwithstanding  the  employment 
of  the  broker,  and,  in  case  of  such  a  sale,  he  will  not  be  liable  to 
the  broker  for  commissions,  if  the  broker's  efforts  were  not,  in 
fact,  the  procuring  cause  of  the  sale.' 


ker  to  sell  the  property  had  ceased 
for  more  than  six  months,  and  the 
broker  had  moved  away,  it  was  held 
that  the  principal  was  not  liable  to 
him  for  commissions,  although  the 
principal  finally  sold  to  a  person  with 
whom  the  broker  had  previously  ne- 
gotiated but  without  success.  Lipe 
V.  Ludewick,  14  111.  App.  372. 

In  Sibbald  v.  Bethlehem  Iron 
works,  83  N.Y.  378,  38  Am.  Rep. 441, 
Finch,  J.,  says:  "It  follows,  as  a 
necessary  deduction  from  the  estab- 
lished rule,  that  a  broker  is  never  en- 
titled to  commissions  for  unsuccessful 
efforts.  The  risk  of  a  failure  is 
wholly  his.  The  reward  comes  only 
with  his  success.  That  is  the  plain 
contract  and  contemplation  of  the 
parties.  The  broker  may  devote  his 
time  and  labor,  and  expend  his  money 
with  ever  so  much  of  devotion  to  the 
interest  of  his  employer,  and  yet  if  he 
fails,  if  without  effecting  an  agree- 
ment or  accomplishing  a  bargain,  he 
abandons  the  effort,  or  his  authority 
is  fairly  and  in  good  faith  terminated, 
he  gains  no  right  to  commissions. 
He  loses  the  labor  and  effort  which 
was  staked  upon  success.  And  in 
such  event  it  matters  not  that  after 
his  failure,  and  the  termination  of  his 
agency,  what  he  has  done  proves  of 
use  and  benefit  to  the  principal.  In 
a  multitude  of  cases  that  must  neces- 
sarily result.  He  may  have  intro- 
duced   to    each    other,   parties  who 


otherwise  would  have  never  met;  he 
may  have  created  impressions,  which 
under  later  and  more  favorable  cir- 
cumstances naturally  lead  to  and  ma- 
terially assist  in  the  consummation 
of  a  sale;  he  may  have  planted  the 
very  seed  from  which  others  reap 
the  harvest;  but  all  that  gives  him  no 
claim.  It  was  part  of  his  risk  that 
failing  himself,  not  successful  in 
fulfilling  his  obligation,  others  might 
be  left  to  some  extent  to  avail  them- 
selves of  the  fruit  of  his  labors.  As 
was  said  in  Wylie  v.  Marine  National 
Bank,  61  N.  Y.  416,  in  such  a  case 
the  principal  violates  no  right  of  the 
broker  by  selling  to  the  first  party 
who  offers  the  price  asked,  and  it 
matters  not  that  sale  is  to  the  very 
party  with  whom  the  broker  had 
been  negotiating.  He  failed  to  find 
or  produce  a  purchaser  upon  the 
terms  prescribed  in  his  employment, 
and  the  principal  was  under  no  obli- 
gation to  wait  longer  that  he  might 
make  further  efforts.  The  failure 
therefore,  and  its  consequences,  were 
the  risk  of  the  broker  only." 

'  Waterman  Real  Estate  Exchange 
e.  Stephens,  —  Mich. — ,  15  West.  Rep. 
193,  38  N.  W.  Rep.  685. 

*  Hungerford  v.  Hicks,  39  Conn. 
259;  Darrow  v.  Harlow,  21  Wis.  302, 
94  Am.  Dec.  541;  Wylie  v.  Marine 
Nat.  Bank,  61  N.  Y.  415;  McClave  t>. 
Paine,  49  N.  Y.  561;  Lloyd  v.  Matt- 
hews, 51  N.  Y.  125;  Keys  v.  Johnson, 


798 


Chap.  III.] 


BR0KEK8. 


968. 


But  the  principal  can  not,  when  the  broker's  efforts  have 
resulted  in  negotiations  for  a  sale,  step  in  and  by  taking  the  mat- 
ter into  his  own  hands  and  completing  the  sale,  escape  liability  to 
the  broker.'  Nor  if,  within  the  time  limited,  the  broker  has 
produced  a  purchaser  who  is  ready,  willing  and  able  to  purchase 
upon  the  terms  prescribed,  can  the  principal  evade  the  payment 
of  the  broker's  commission  by  then  refusing  or  neglecting  to 
consummate  the  sale,'  or  by  changing  his  terms,'  or  by  selling  the 
property  to  another,^  or  by  so  negligently  dealing  with  the  pro 
posed  purchaser  as  to  lose  the  benefit  of  the  sale.*  So  if  the 
broker  has  fulfilled  upon  his  part,  he  will  be  entitled  to  his  com- 
missions although  the  sale  is  not  consummj^ted  because  the  prin- 
cipal's title  proves  to  be  defective ;  •  or  because  the  principal's 
wife  refuses  to  join  in  the  conveyance;  ^  or  because  the  purchaser 
refuses  to  complete  the  sale  on  account  of  false  representations 
made  by  the  principal.* 

§  968.     Same  Subject— Revocation  of  Authority.    It  is  entirely 
competent  for  the  principal  to  agree  that  the  broker  shall  have  a 


68  Penn.  St.  42;  Doonan  v.  Ives,  73 
Ga.  295;  Dolan  v.  Scanlan,  57  Cal, 
261. 

'  Keys  V.  Johnson,  supra;  Sibbakl  v. 
Bethlehem  Iron  Works,  83  N.  Y.  378, 
88  Am.  Rep.  441 ;  Butler  v.  Kennard, 
—  Neb.  — ,  36  N.  W.  Rep.  579; 
Nicholas  v.  Jones,  —  Neb.  — ,  37  N. 
W.  Rep.  679. 

sGaty».  Foster,  18  Mo.  App.  639; 
Burling  v.  Gunther,  12  Daly  (N.  Y.) 
6;  Goss  V.  Stevens,  32  Minn.  472; 
Fischer  v.  Bell,  91  Ind.  243;  Veazie  v. 
Parker,  73  Me.  443;  Watson  v. 
Brooks,  8  Sawy.  (U.  S.  C.  C.)  316; 
Neilson  v.  Lee,  60  Cal.  555;  Phelan  v. 
Gardner,  43  Cal.  306;  Bell  v.  Kaiser, 
50  Mo.  150;  Tyler  v.  Parr.  52  Mo.  249; 
Kock  V.  Emmerling,  22  How.  (U.  S.) 
69;  Moses®.  Bierling,  31  N.  Y.  462; 
Kelly  V.  Phelps,  57  Wis.  425;  Love  v. 
Miller,  53  Ind.  294;  Bailey  «.  Chap- 
man, 41  Mo.  536;  Cook  v.  Fiske,  13 
Gray  (Mass.)  491;  Gillett  v.  Corum,  7 
Kans.  156;  Sibbald  v.  Bethlehem  Iron 
Works,  83  N.  Y.  378,  38  Am.  Rep. 


441;  Gorman  v.  Scholia,   13  Daly  (N. 
Y.)  516. 

3  Bash  V.  Hill,  62  111.  216;  Stewart®. 
Mather,  32  Wis.  844;  Nesbitt  v.  Hel- 
ser,  49  Mo.  383. 

*  Lane  v.  Albright,  49  Ind.  275; 
Reed's  Ex'rs  v.  Reed,  82  Penn.  St. 
420;  Fox  v.  Byrnes,  62  N.  Y.  Super. 
Ct.  150. 

5  Potvin  V.  Curran,  13  Neb.  302; 
Parker  v.  Walker,  —  Tenn.  — ,  8  S. 
W.  Rep.  391. 

« Hamlin®.  Schulte,  34  Minn.  534; 
Roberts  v.  Kimmons,  —  Miss.  — ,  3 
South  Rep.  736;  Hannan  v.  Moran, 
—  Mich.  — •,  15  West.  Rep.  211; 
Goodridge  v.  Holladay,  18  111.  App. 
363;  Gonzales®.  Broad,  57  Cal.  224; 
Knapp®.  Wallace,  41  N.  Y.  477;  Doty 
®.  Miller,  43  Barb.  (N.  Y.)  529;  Sib- 
bald V.  Bethlehem  Iron  Works,  83  N. 
Y.  378,  38  Am.  Rep.  441.  But  see 
Rockwell  V.  Newton,  44  Conn.  333. 

7  Clapp  V.  Hughes,  1  Phila.  382. 

*  Glentworth  v.  Luther,  21  Barb, 
(N.  Y.)  145. 


799 


ft  968.  THE   LAW   OF    AQENOT.  [Book  Y. 

certain  time   within  which  to  find  a  purchaser,  and,  where  he 
does  so,  he  will  be  liable  to  the  broker  for  damages  if,  without 
the  latter's  fault  or  consent,  he  terminates  his  authority  before 
the  expiration  of  that  period.'     Such  an  agreement,  however,  is 
not  to  be  implied  from  the  mere  fact  that  the  time  within  which 
the  broker  is  to  perform  is  limited.     Thus  an  agreement  to  pay 
a  broker  commissions    if  "within  a  month"  he    succeeds    in 
finding  a  purchaser,  does  not  amount  to  an  agreement  on  the 
part  of  the  principal  that  the  broker  will  be  allowed  a  month  for 
the  purpose,  and  the  principal  may,  without  liability  for  commis- 
sions,   revoke   the   broker's   authority    before  the   purchaser  is 
found,  although  the  month  has  not  expired.'     Where  no  time  is 
80  agreed  upon,  the  broker  is  entitled  to  a  reasonable  time  in 
which  to  find  a  purchaser,  after  which,  if  he  be  unsuccessful,  the 
principal  may  revoke  the  broker's  authority,  without  liability,  at 
any  time,  subject  only  to  this  exception,  that  it  be  not  done  for 
the   purpose   of   avoiding  the   payment   of  commissions   wliile 
availing  himself  of  the  benefits  of  the  broker's  efforts,  by  taking 
into  his  own  hands  the  completion  of  negotiations  then  pend- 
ing.    Upon  this  subject,  the  language  of  Judge  Finch,  of  the 
New  York   Court   of   Appeals,  is   worthy  of   reproduction: — 
"Where    no    time    for    the    continuance    of    the    contract    is 
fixed  by  its  terras,  either  party  is  at  liberty  to  terminate  it  at 
will,  subject  only  to  the  ordinary  requirements  of  good  faith. 
Usually  the  broker  is  entitled  to  a  fair  and  reasonable  opportu- 
nity to  perform  his  obligation,  subject,  of  course,  to  the  right  of 
the  seller  to  sell  independently.     But  that  having  been  granted 
him,  the  right  of  the  principal  to  terminate  his  authority,  is  abso- 
lute and  unrestricted,  except  only  that  he  may  not  do  it  in  bad 
faith,  and  as  a  mere  device  to  escape  the  payment  of  the  broker's 
commissions.     Thus,  if  in  the  midst  of  negotiations  instituted  by 
the  broker,  and  which  were  plainly  and  evidently  approaching 
success,  the  seller  should  revoke  the  authority  of  the  broker,  with 
the  view  of  concluding  the  bargain  without  his  aid,  and  avoiding 
the  payment  of  commissions  about  to  be  earned,  it  might  well  be 
said  that  the  due  performance  of  his  obligation  by  the  broker  was 
purposely  prevented  by  the  principal.     But  if  the  latter  acts  in 
good  faith,  not  seeking  to  escape  the  payment  of  commissions, 
but  moved  fairly  by  a  view  of  his  own  interest,  he  has  the  absolute 
»  See  ante.  %  630  et  seq.  «  Brown  v.  Pforr,  38  Cal.  550. 

800 


Chap.  III.] 


BROKERS. 


§909. 


right,  before  a  bargain  is  made,  while  negotiations  remain  unsuc- 
cessful, before  commissions  are  earned,  to  revoke  the  broker's 
authority,  and  the  latter  cannot  thereafter  claim  compensation  for 
a  sale  made  by  the  principal,  even  though  it  be  to  a  customer 
with  whom  the  broker  unsuccessfully  negotiated,  and  even 
though,  to  some  extent,  the  seller  might  justly  be  said  to  have 
availed  himself  of  the  fruits  of  the  broker's  labor."' 

§  969.  Employment  of  two  or  more  Brokers.  Unless  he  has 
expressly  agreed  to  give  one  broker  the  exclusive  authority  to 
sell,  the  principal  may  employ  several  brokers  to  sell  the  same 
property.*  Where  several  are  so  employed,  the  authority  of  each 
being  limited  to  the  particular  transaction,  the  sale  of  the  prop- 
erty, either  by  the  principal  in  person  or  by  any  one  of  the  bro- 
kers, operates  at  once  to  terminate  the  authority  of  all  of  the 
brokers,  although  they  had  no  actual  notice  of  the  sale.'  The 
principal  may  also  revoke  the  authority  of  one  or  all  of  them,  as 
in  other  cases,*  but  a  notice  to  one  broker  that  the  principal  had 


» In  Sibbald  v.  Bethlehem  Iron  Co. 
83  N.  Y.  378,  38  Am.  Rep.  441. 

«  Tinees  v.  Moale,  25  Md.  480,  90 
Am.  Dec.  73;  McClave  v.  Paine,  49 
N.  Y.  561,  10  Am.  Rep.  431. 

»  Ahem  t>.  Baker,  34  Minn.  98.  24 
N.  W.  Rep.  341,  20  Reporter,  435. 
In  this  case  Vanderbergh,  J.  said: 
"The  defendant,  on  the  ninth  day  of 
September,  specially  authorized  one 
Wheeler,  as  his  agent,  to  sell  the  real 
property  in  controversy,  and  to  exe- 
cute a  contract  for  the  sale  of  the 
same.  He  in  like  manner  on  the 
same  day  empowered  one  Fairchild 
to  sell  the  same  land,  the  authority  of 
the  agent  in  each  instance  being  lim- 
ited to  the  particular  transaction 
named.  On  the  same  day,  Wheeler 
effected  a  sale  of  the  land,  which  was 
consummated  by  a  couveyance.  Sub- 
sequently, on  the  tenth  day  of  Sep- 
tember, Fairchild,  as  agent  for 
defendant,  and  having  no  notice  of 
the  previous  sale  made  by   Wheeler, 


also  contracted  to  sell  the  same  land 
to  this  plaintiff,  who,  upon  defend- 
ant's refusal  to  perform  on  his  part, 
brings  this  action  for  damages  for 
breach  of  the  contract. 

This  is  a  case  of  special  agency, 
and  there  is  nothing  in  the  case  going 
to  show  that  the  plaintiff  (defendant?) 
would  be  estopped  from  setting  up  a 
revocation  of  the  agency  prior  to  the 
sale  by  Fairchild.  A  revocation  may 
be  shown  by  the  death  of  the  princi- 
pal, the  destruction  of  the  subject- 
matter,  or  the  determination  of  his 
estate  by  a  sale,  as  well  as  by  express 
notice.  The  plaintiff  (defendant?) 
had  a  right  to  employ  several  agents, 
and  the  act  of  one  in  making  a  sale 
would  preclude  the  others  without 
any  notice,  unless  the  nature  of  his 
contract  with  them  required  it.  In 
dealing  with  the  agent  the  plaintiff 
took  the  risk  of  the  revocation  of  his 
agency,  1  Pars.  Cont    71." 

*  See  preceding  section. 


51 


801 


§909. 


THE    LAW    OF   AGENCY. 


[Book  V. 


decided  not  to  sell  would  not  afEect  others  with  whom  the  one 
notified  had  no  connection.' 

To  determine  which  of  the  several  brokers  is  entitled  to  the 
commissions,  is  a  question,  in  many  cases,  of  no  little  diflSculty. 
"Where  neither  broker  had  knowledge  of  the  employment  of  the 
others,  it  would  seem  that  the  ordinary  rule  applicable  to  the  case 
of  the  employment  of  a  single  broker,  would  apply,  i.  «.,  that 
the  broker  who  was  the  efficient  cause  of  the  sale  is  entitled  to 
the  commissions,  and  that  this  right  can  not  be  affected  because 
the  principal  in  person,  or  by  another  agent,  takes  into  his  own 
hands  and  completes  the  transaction  which  the  broker  has 
inaugurated.' 

But  where  several  brokers  are  openly  employed,  it  is  said  that 
the  entire  duty  of  the  principal  is  performed  by  remaining  neutral 
between  them,  and  that  he  has  a  right  to  sell  to  the  buyer  who  is 
first  produced  by  any  of  them,  without  being  called  upon  to  decide 
which  of  the  several  brokers  was  the  primary  cause  of  the  sale.' 


»  Lloyd  V.  Matthews,  51  N.  Y.  124. 

»  See  Eggleston  v.  Austin.  27  Kan. 
245;  see  also  Vreeland  v.  Vetterlein, 
(33  N.  J.    L.  247)  in  following  note. 

"  If  he  has  several  agents  employed 
to  sell  the  same  land,  and  one  has 
found  a  purchaser  and  has  negotiated 
with  him  to  sell  the  land  at  a  certain 
stipulated  price  and  on  certain  terms, 
different  from  those  specified  in  the 
authority  to  sell,  and  when  the  sale 
was  about  to  be  consummated, 
another  agent  of  the  owner  meets  the 
same  person,  who  talks  to  him  about 
the  offer  of  the  first  agent,  and,  with 
full  knowledge  of  the  negotiations 
of  the  first  agent,  the  second  agent 
sells  to  such  person  the  same  prop- 
erty for  a  less  price,  but  on  the  same 
terms  as  to  cash  down  and  time  in 
which  to  pay  the  deferred  payments, 
and  the  owner  is  ignorant  of  the 
negotiations  of  the  first  agent  with 
the  purchaser,  but  ratifies  the  sale  by 
the  second  agent,  made  on  the  terms 
proposed  by  the  first,  he  is  not  liable 
to  the  second  but  to  the  first  agent, 


and  should  pay  him  a  reasonable  com- 
pensation for  procuring  said  sale." 
Johnson,  J.,  in  Reynolds  t».  Tomp- 
kins, 23  W.  Va.  229,  235. 

•"But  it  appears  to  be  equally 
obvious,"  says  Chief  Justice  Bea»- 
LEY,  "  that  another  principle  must  be 
applied  to  cases  in  which  several 
agents  are  avowedly  employed  by  the 
owner.  Under  such  circumstances, 
it  would  be  impracticable  to  resort  to 
the  same  rule  as  when  a  monopoly  to 
sell  is  given  to  one .  In  the  latter  case, 
the  implied  understanding  is,  that 
the  seller  will  not  take  advantage  of 
the  endeavors  of  the  agent,  and  that 
no  other  person  is  authorized  to  do 
so.  But  in  the  instance  of  a  number 
of  agents,  the  agreement  of  non- 
interference is  not  so  wide,  for  it 
extends  to  the  act  of  the  seller  only. 
Where  the  property  is  openly  put  in 
the  hands  of  more  than  one  broker, 
each  of  such  agents  is  aware  that  he 
is  subject  to  the  arts  and  chances  of 
competition.  If  he  finds  a  person 
who  is  likely  to  buy,  and  quits  him 


802 


Oliap.  111.] 


BROKERS. 


§  DG9. 


The  same  rule  in  regard  to  the  abandonment  of  the  effort, 
which  has  been  already  noticed,  applies  here  also.  Thus  if  ono 
of  several  brokers  gives  notice  to  his  principal  that  he  can  not 
effect  a  sale,  he  will  not  be  entitled  to  commissions  because 
another  broker,  who  is  informed  by  the  first  that  the  property  is 
for  sale,  succeeds  in  finding  a  purchaser.*  So,  if  two  brokers  are 
employed,  and  one  of  them  enters  into  negotiations  with  a  pur- 
chaser which  fail  and  are  abandoned,  he  will  not  be  entitled  to 
commissions  because  another  broker  subsequently  succeeds, 
wholly  through  his  own  efforts,  in  making  a  sale  to  the  same  per- 
son, and  upon  substantially  the  same  terms  as  those  proposed  by 
the  first  broker.* 


without  having  effected  a  sale,  he  is 
aware  that  he  runs  the  risk  of  such 
person  falling  under  the  influence  of 
his  competitor — and  in  such  case,  he 
may  lose  his  labor.  This  is  a  part  of 
the  inevitable  risk  of  the  business  ha 
has  undertaken.  On  the  other  hand, 
if  fortune  should  be  propitious,  a 
bidder  for  the  property  on  sale,  who 
has  been  solicited  by  his  rival,  may 
come  to  him,  and  by  his  means  effect 
the  bargain.  Now,  in  this  competi- 
tion, the  vendor  of  the  property  is  to 
remain  neutral;  he  is  interested  only 
in  the  result.  But  when  either  of  the 
agents  thus  employed,  brings  a  pur- 
chaser to  him,  and  a  bargain  is  struck 
at  the  required  price,  on  what  ground 
can  he  refuse  to  complete  the  bar- 
gain? Can  he  say  to  the  successful 
competitor,  this  purchaser  was  first 
approached  by  your  rival,  and  you 
sbould  have  refused  to  treat  with 
him  on  the  subject?  There  is  no 
legal  principal  upon  which  such  a 
position  could  rest.  It  is  contrary  to 
the  usages  of  every  day  commerce. 
Every  advertisement  of  a  slock  of 
goods  for  sale,  has  a  tendency  to 
carry  off  the  customers  of  rival  deal- 
ers. And  if,  therefore,  it  should  be 
known  to  the  vendor  of  the  property 
that  the  agent,  who  introduces  a  pur- 
chaser to  him  has,  by  the  usual  arts 


of  competition,  taken  such  purchaser 
out  of  the  hands  of  his  rival,  I  am  not 
aware  of  anything  in  the  law  which 
would  justify  such  vendor  in  a  refusal 
to  complete  the  contract.  The  task 
would  be  difficult  and  the  risk  great, 
if  vendors  were  called  upon  to  decide 
between  the  claims  of  contestants. 
How  would  it  be  possible  for  such 
vendor  to  say  whose  influence  it  was 
that  produced  the  sale,  where  the 
purchaser  has  been  solicited  by  both 
agents?  It  would  be  at  variance 
with  all  practical  rules,  to  require  the 
party  selling  to  pronounce,  under  the 
penalty  of  paying  double  commis- 
sions, upon  the  metaphysical  ques- 
tion, which  agent,  under  such  cir- 
cumstances, was  the  efficient  cause  of 
the  sale.  In  the  absence  of  all  collu- 
sion on  the  part  of  the  vendor,  the 
agent,  through  whose  instrumentality 
the  sale  is  carried  to  completion,  is 
entitled  to  the  commissions.  Tliis 
rule,  I  think,  will  be  found  to  be  in 
accord  with  the  cases  heretofore 
decided."  In  Vreeland  v.  Vetlerlein, 
33  N.  J.  L.  247.  To  same  effect,  see 
Glenn  v.  Davidson,  87  Md.  365. 

»  Holley  V.  Townsend,  3  Hilton  (N. 
Y.)  34. 

« Livezy  v.  Miller,  61  Md.  843,  17 
Reporter,  623. 


803 


§  970.  THE    LAW    OF    AGENCY.  [Book    Y. 

When  one  of  several  brokers  has  produced  a  purchaser  it  is  his 
duty,  if  he  intends  to  claim  commissions,  to  report  his  name  and 
offer  to  his  principal,  and  if  he  fails  to  do  so,  he  can  not  complain 
if  the  principal  in  good  faith  and  without  notice,  pays  the  com- 
missions to  another  broker  who  subsequently  sells  to  the  same 
purchaser  at  the  same  price.* 

§  970.  Broker  to  effect  Loan.  The  rights  and  duties  of  a 
broker  employed  to  secure  a  loan  depend  upon  the  same  princi- 
ples which  govern  the  broker  who  undertakes  to  find  a  purchaser 
of  property.  The  loan  broker  is  entitled  to  his  commissions 
where  he  has  procured  a  lender  who  is  ready,  willing  and  able 
to  lend  the  money  upon  the  terms  proposed.'  If  he  does  less 
than  that,  he  has  not  earned  his  commissions  unless  his  employer 
waives  the  deficiencies ;  but  if  he  has  done  that,  he  can  not  be 
deprived  of  his  commissions  because  his  employer  neglects  or 
refuses  to  obtain  the  loan,  or  changes  his  terms,  or  because  the 
security  offered  proves,  upon  investigation,  to  be  defective.* 

§  971.  Broker  to  effect  Exchange.  And  the  same  principles 
apply  to  the  case  of  a  broker  employed  to  effect  an  exchange  of 
property.  He  is  entitled  to  his  commissions  when,  and  only 
when,  he  has  within  the  time  limited,  if  any,  produced  a  party 
ready  and  able  to  exchange  on  the  terms  designated,  or  with 
whom  the  principal  deals.*  Neither  can  his  right  to  compen- 
sation be  defeated  because  the  principal  then  refuses  to  exchange 
or  is  not  able  to  make  a  good  title,  or  takes  the  matter  into  his 
own  hands.* 

§  972.  Cannot  have  Commissions  from  both  Parties.  As  has 
been  seen,  the  broker  will  not  ordinarily  be  permitted  to  under. 
take  to  represent  both  parties  in  the  same  transaction.'  His  duty 
to  his  principal  and  the  policy  of  the  law  demand  that,  unless  his 
principal  has  expressly  stipulated  for  less,  the  broker  shall  give 

»  Tinges  v.  Moale,  25  Md.   480,  90  Lucas,   supra;   Corning  v.  Calvert  3 

Am.  Dec.  73.  Hilt.  (N.  Y.)  56. 

s  Vinton  v.  Baldwin,  88  Ind.   104,  *  Hewitt  v.  Brown,  21   Minn.  163; 

45  Am.  Rep.  447;  Budd  v.  ZoUer,  53  Redfield  ®.  Tegg.  38  K  Y.  212;  Lit 

Mo.  288;  Green  v.  Reed,  3  F.  «&  F.  tie  v.  Rees,  34  Minn.  277,  26  N.  W 

226;  Green  «.  Lucas,  81  L.  T.  (K  S.)  Rep.  7. 

731,  »  Little  V.  Rees,  supra;  Rockwell  v 

•Vinton ©.Baldwin,  mpra;  Green  e.  Newton,  44  Conn.  333. 

•  See  ante,  §  903. 

804 


Chap.  III.] 


BROKERS. 


§972. 


to  his  principal  his  undivided  efforts  and  allegiance.  To  be  secretly 
in  the  service  of  the  opposing  party,  while  ostensibly  acting  for 
his  principal  only,  is  a  fraud  upon  the  latter  and  a  breach  of  pub- 
lic morals  which  the  law  will  not  tolerate.  If,  therefore,  each  of 
the  parties  to  the  transaction  was  entirely  ignorant  of  the  broker's 
relations  to  the  other,  such  double  service  on  the  part  of  the  bro 
ker  will  defeat  his  right  to  recover  commissions  from  either  of 
them.'  If  one  of  the  parties  only  was  ignorant,  he  will  certainly 
be  absolved  from  the  duty  to  pay  commissions ;  and  while  the 
authorities  are  not  all  agreed  as  to  the  liability  of  the  other  party 
who  has  employed  the  broker,  knowing  of  his  relations  to  the 
first,  it  is  held  in  many  cases,  and  there  are  strong  reasons  of  pub- 
lic policy  which  support  the  rule,  that  the  broker  should  not  be 
permitted  to  recover  of  him  either.*  A  custom  to  charge  com- 
missions to  both  parties  will  not  be  enforced.* 

If,  however,  both  parties,  having  full  knowledge  of  his  rela- 
tions to  each  of  them,  voluntarily  see  fit  to  entrust  him  with 
their  business,  there  is  no  legal  objection,  and  in  such  a  case  the 
broker  may  recover  from  each  his  stipulated  compensation.* 


'  Bell  v.  McConnell,  87  Ohio  St. 
896,  41  Am.  Rep.  528:  Rice  v.  Wood, 
113  Mass.  183,  18  Am.  Rep.  459; 
ScribneriJ.  Collar,  40  Mich.  375,  29 
Am.  Rep.  541;  Lynch  v.  Fallon,  11 
R.  I.  311,  2;J  Am.  Rep.  458;  Meyer  v. 
Hanchett,  39  Wis.  419,  s.  c.  43  Wis. 
246;  Raisin  v.  Clark,  41  Md.  158,  20 
Am.  Rep.  66;  Walker  v.  Osgood,  98 
Mass.  848,  93  Am.  Dec.  168;  DeStei- 
ger,  V.  Hollington,  17  Mo.  App.  382; 
Webb  V.  Paxton,  36  Minn.  532,  32  N. 
W.  Rep.  749;  Morison  v.  Thompson, 
L.  R.  9  Q.  B.  480,  10  Eng.  Rep.  129; 
Robbins  v.  Sears,  23  Fed.  Rep.  874; 
Bates  V.  Copeland,  4  McArth.  (D.  C.) 
50;  Collins  v.  Fowler,  8  Mo.  App. 
588. 

» Bell  V.  McConnell,  37  Ohio  St. 
896,  41.  Am.  Rep.  528;  Farnsworth 
V.  Hemmer,  1  Allen  (Mass.)  494,  79 
Am.  Dec.  756;  Walkers.  Osgood,  98 
Mass.  848,  98  Am.  Dec.  168;  Smith 
«.  Townsend,   109  Mass.  500;  Rice  v. 


Wood,  113  Mass.  133,  18  Am.  Rep. 
459;  Bollman  v.  Loomis,  41  Conn. 
581 ;  Everhart  v.  Searle,  71  Penn.  St. 
256;  Morison  v.  Thompson,  L.  R.  9 
Q.  B.  480,  10  Eng.  Rep.  129;  Lynch 
tj.  Fallon,  11  R.  I.  811,  23  Am.  Rep. 
458;  Raising;.  Clark,  41  Md.  158,  20 
Am.  Rep.  66. 

8  Walker  «.  Osgood,  98  Mass.  348, 
93  Am.  Dec.  168;  Farnsworth  v. 
Hemmer,  1  Allen  (Mass.)  494,  79  Am. 
Dec.  756. 

*  Alexander  e.  Northwestern  Uni- 
versity, 57  Ind.  466;  DeSteiger  v. 
Hollington,  17  Mo.  App.  382;  Rowe 
V.  Stevens,  53  N.  Y.  621;  Joslin  v. 
Cowce,  56  N.  Y.  626;  Rolling  Stock 
Co.  v.  Railroad,  34  Ohio  St.  450; 
Leekins  v.  Nordyke.  66  Iowa,  471; 
Bell  V.  McConnell,  37  Ohio  St.  396, 
41  Am.  Rep.  528;  Rice  v.  Wood,  113 
Mass.  183,  18  Am.  Rep.  459;  Scrib- 
ner  v.  Collar,  40  Mich.  375.  29  Am. 
Rep.  641. 


805 


§  973.  THE    LAW    OF   AGENCY.  [Book  Y. 

§  973.  How  in  Case  of  mere  Middle-man.  Where,  however, 
the  agent  stands  in  the  situation  of  a  mere  middle-man,  not  hav- 
ing undertaken  to  act  as  agent  for  either  party  or  to  exercise  for 
either  his  skill,  knowledge  or  influence,  but  merely  to  bring  the 
parties  together  to  deal  for  themselves,  and  he  himself  stands 
entirely  Indifferent  between  them,  it  is  held  that  he  may  recover 
from  each  although  each  was  ignorant  of  his  relations  to  the 
other.*  Such  cases  may  undoubtedly  occur,  but,  as  has  been 
well  said,  "their  exceptional  character  should  appear  clearly, 
before  they  should  be  exempted  from  the  general  principle."  * 

§  974.  No  Compensation  when  Undertaking  illegal.  If  the 
undertaking  of  the  broker  was  to  do  something  which  was  illegal, 
immoral,  or  opposed  to  public  policy,*  he  can  recover  no  commis- 
sions, although  his  undertaking  be  fully  performed.*  But  he  is 
not  necessarily  affected  by  the  unlawful  intentions  of  the  parties 
whom  he  brings  together,  although  the  contract  which  they  make 
would  be  void  because  of  such  intentions.  Whether  he  is  or  not, 
depends  upon  the  question  whether  he  was  privy  to  the  unlawful 
intention.  As  is  said  by  Mr.  Justice  Matthews,  in  a  leading  case 
before  the  Supreme  Court  of  the  United  States :  "  It  is  certainly 
true  that  a  broker  might  negotiate  such  a  contract  without  being 
privy  to  the  illegal  intent  of  the  principal  parties  to  it  which  ren- 
ders it  void,  and  in  such  a  case,  being  innocent  of  any  violation 

'  Rupp  V.  Sampson,  16  Gray  (Mass.)  such  capacity.     He  was  not  an  agent 

898,    77    Am.    Dec.    416;    Siegel  «.  to  buy  or  sell,  but  only  acted  as  a 

Gould,  7  Lans.  (N.  Y.)  177.   In  Rupp  middleman  to  bring  the  parties  to- 

V.  Sampson,   Bigelow,   C.   J.   said:  gether,  in  order  to  enable  them  to 

"The  claim  of  the  plaintiff  would  make  their  own  contracts.     He  stood 

have  stood  on  a  very  different  ground  entirely    indifferent    between    them, 

if  he  had  been  employed  as  a  broker  and  held  no  such  relation  in  conse- 

to  buy  or  sell  goods.     It  would  in  quence  of  his  agency  as  to  render  his 

such  case  have  been  a  fraud  for  him  action  adverse    to    the    interests    of 

to  conceal  his  agency  for  one  from  either  party." 

the  other.    The  interests  of  buyer  and         «  See  per  Graves,  J.,  in  Scribner 

seller  are  necessarily  adverse,  and  it  v.  Collar,  40  Mich.  375,  29  Am.  Rep. 

would  operate  as  a  surprise  on  the  641. 

confidence  of  both  parties,  and  essen-  '  See  subject  discussed,  ante,  §  20, 

tially  affect  their  respective  interests,  et  seq. 

if  one  person  should,  without  their  <  Fareira  «.  Gabell,  89  Penn.  St.  89; 

knowledge,  act  as  the  agent  of  both.  Irwin  v.  Williar,  110  U.  S.  499;  Lyon 

Farebrother  v.  Simmons,   5  Barn.  &  v.  Mitchell,  36  N.    T.   235,  93  Am. 

Aid.  883;  Story  on  Agency,  sec.  31.  Dec.  502. 
But  the  plaintiff  did  not  act  in  any 

806 


Chap.  III.]  BROKERS.  §  977. 

of  law,  and  not  suing  to  enforce  an  unlawful  contract,  has  a  meri. 
torious  ground  for  the  recovery  of  compensation  and  advances. 
But  we  are  also  of  the  opinion  that  when  the  broker  is  privy 
to  the  unlawful  designs  of  the  parties,  and  brings  them 
together  for  the  very  purpose  of  entering  into  an  illegal  agree- 
ment, he  is  pariiceps  criminis,  and  cannot  recover  for  services 
rendered  or  losses  incurred  by  himself  on  behalf  of  either  in  for- 
warding the  transaction." ' 

§  975.  How  affected  by  Misconduct.  The  broker's  duty  to 
his  principal  to  have  and  exercise  reasonable  skill,  care  and  pru- 
dence has  already  been  noticed,  as  has  also  his  duty  to  obey  the 
lawful  instructions  of  his  principal.  For  a  breach  of  these,  as 
has  been  seen,  the  principal  may  maintain  an  action  against  the 
broker,  or,  if  he  prefer,  he  may  show  the  misconduct  in  bar  or  by 
way  of  recoupment,  in  an  action  brought  by  the  broker  for  his 
compensation." 

I  976.  How  when  not  licensed.  Where  a  statute  requires 
brokers  to  be  licensed  and  imposes  a  penalty  for  exercising  the 
vocation  without  a  license,  an  unlicensed  broker  cannot  recover, 
either  upon  the  contract  or  upon  a  quantum  meruit,  for  services 
rendered  by  him  in  that  capacity.'  The  presumption  is  that  the 
broker  has  complied  with  the  law  and  is  duly  licensed,  and  the 
burden  of  proof  is  upon  him  who  alleges  the  contrary.* 

Such  statutes,  however,  do  not  ordinarily  apply  to  the  case  of 
a  private  individual  not  carrying  on  the  business  of  a  broker, 
and  such  an  one  may  recover  an  agreed  commission  for  a  single 
sale  though  he  had  no  license.' 

2.     Hight  to  Reimbursement. 

§  977.  Entitled  to  Reimbursement.  The  broker  is  entitled 
to  be  reimbursed  for  all  costs  and  expenses,  and  to  be  indemni- 
fied against  all  losses  and  liabilities,  which  he  has  fairly  and  in 

>  In  Irwin  v.  Williar,  110  U.  S.  499,  White  v.    Chapman,    1    Stark.    113; 

610,  cited  with  approval  in  Crawford  Hurst  «.  Holding,  3  Taunt.  32. 
p.  Spencer,  92  Mo.  498,    1   Am.  St.  >  Johnson  v.  Hulings,  108  Penn.  St. 

Rep.  745.  498,  49  Am.  Rep.  131;  Holt  v.  Green, 

»  Fisher    v.    Dynes,   63    Ind.    848;  73  Penn.  St.  198,  13  Am.  Rep.  737. 
Dodge  V.  Tileston,  12  Pick.   (Mass.)  *  Shipler  v.  Scott,  85  Penn.  St.  329. 

328;  Denew  v.  Daverell,  3  Camp.  451;  »  Chadwick  v.  Collins,  26  Penn.  St. 

Hamond  v.  Holiday,  1  C.  &  P.  384;  138. 

807 


§  978.  THB    LAW  OF    AGENCY.  [Book  V. 

good  faith  incurred,  by  the  authority  and  for  the  benefit  of  his 
principal,  and  which  were  not  rendered  necessary  by  his  own 
misconduct  or  neglect. '  Thus  when  a  broker  purchases  or  sells 
property  without  disclosing  to  the  respective  principals  in  the 
transaction  the  name  of  the  party  for  whom  he  acts,  he 
becomes,  on  the  one  side,  liable  personally  for  the  purchase 
price  of  the  property  bought,  and,  on  the  other,  is  entitled  to  col- 
lect such  price  from  the  principal  at  whose  instance  the  purchase 
was  made.  The  vendee  in  such  a  case  can  relieve  himself  from 
liability  to  the  broker  only  by  showing  payment  of  the  contract 
price  by  him  to  the  original  vendor,  or  a  release  for  a  good  and 
valuable  consideration  from  the  broker.' 

So  where  a  broker  acting  in  good  faith,  but  without  disclosing 
his  principal,  sold  repudiated  bonds  by  the  direction  of  his  prin- 
cipal, it  was  held  that  he  was  entitled  to  recover  from  the  latter 
the  damages  he  had  suffered  by  reason  of  making  the  sale.' 

So  a  broker  who  at  the  direction  of  his  principal,  buys  prop- 
erty for  the  principal  to  be  held  as  an  investment,  is  entitled  to 
be  reimbursed  for  the  cost  thereof,*  or  in  case  he  is  compelled 
to  resell  it  at  a  depreciation  in  price,  to  recover  the  loss  there- 
by occasioned.* 

But  if  the  expense  or  liability  for  which  the  broker  seeks 
reimbursement  or  indemnity  was  unnecessarily  incurred,'  or  was 
the  result  of  the  broker's  own  misconduct  or  neglect,''  or  of  a 
violation  of  his  principal's  instructions,'  or  was  incurred  while  the 
broker  was  acting  in  excess  of  his  authority,*  he  cannot  recover. 

§  978.  How  when  Undertaking  not  performed.  The  right  of 
the  broker  to  reimbursement  and  indemnity  when  he  fails  to 
fully  complete  his  undertaking,  depends  upon  the  nature  of  the 
undertaking  and  the  reason  of  his  failure.  In  this  respect  the 
question  is  analogous  to  that  of   his  right  to  compensation.     A 

'  Duncan  v.  Hill,  L.  R  8  Exch.  243,  »  Bennett  «.  Covington,  supra. 

6  Eng.  Rep.  303 ;  Ruffner  v.   Hewitt.  «  Clegg  v.  Townshend.  16  L.  T.  R. 

7  W.  Va.  585;  Beach  v.  Branch,  57      N.  8.  180. 

Ga.  363;  Searing  tj,  Butler,  69  111.  575;  »  Duncan  c.   Hill,  L.  R.   8  Exch. 

Maitland  v.  Martin,  86  Penn.  St.  120.  242,  6  Eng.  Rep.  303. 

8  Knapp  V.  Simon,  96  N.  Y.  284.  •  Story  on  Agency,  §  341. 

» Maitland  v.  Martin,  86  Penn.  St.  » Bowlby  v.    Bell,    3   C.    B.    284; 

120.  Fletcher  v.   Marshall,   15  M.  &  W. 

*  Bennett   v.   Covington,   22    Fed.  755. 
Rep.  816. 

808 


Chap.  III.]  BROKERS.  §  979. 

broker  who  undertakes  to  sell  property,  for  example,  is  ordinarily, 
as  has  been  seen,  entitled  to  no  compensation  unless  he  finds  a 
purchaser  who  is  ready,  willing  and  able  to  buy  upon  the  terms 
stipulated.'  Unless  there  is  an  express  contract  to  the  contrary, 
he  is  understood  as  risking  the  chance  of  losing  his  labor  if  his 
efforts  do  not  prove  successful,  and  the  same  considerations  apply 
to  his  right  to  recover  for  his  expenses  incurred.  If  being  left 
at  liberty  to  choose  his  own  means  and  methods  as  to  the  accom- 
plishment of  the  result,  he  incurs  expenses  in  travelling,  adver- 
tising and  similar  endeavors,  he  will  not  be  entitled  to  reimburse- 
ment for  these  if,  without  the  principal's  fault,  his  efforts  fail  of 
success.'  And  even  if  successful,  he  would  not,  in  the  absence 
of  a  contract  or  custom  to  the  contrary,  be  entitled  to  recover, 
as  his  commission  is,  in  ordinary  cases,  supposed  to  cover  these 
expenses.' 

Where,  however,  the  principal  expressly  directs  that  certain 
means  or  methods  be  adopted,  the  broker  would  be  entitled  to 
reimbursement  for  the  expense  thereby  incurred.* 

So  where  the  broker  is  employed  to  perform  a  service  which 
necessarily  requires  that  he  should  incur  certain  expenses  as  indu- 
cive  to  the  accomplishment  of  the  object,  and  before  a  reasonable 
time  has  been  allowed  him  in  which  to  bring  the  undertaking  to 
a  termination,  his  authority  is,  without  his  fault,  revoked  by  his 
principal,  he  would  undoubtedly  be  entitled  to  be  reimbursed  for 
this  outlay.* 

3.     Right  to  a  Lien. 

§  979.  No  general  Lien.  Brokers  do  not  usually  possess  the 
right  of  a  general  lien,  though  like  other  agents  they  may  be  in 
a  situation  to  exercise  the  right  of  a  particular  lien.  The  reason 
of  this  is  found  in  the  distinguishing  character  of  the  broker, 
that,  in  general,  he  is  not  entrusted  with  the  possession  of  the 
property  respecting  which  he  is  employed  to  act.  The  right  of 
lien,  as  has  been  seen,  is  a  right  in  one  person  to  retain  that  which  is 

»  See  ante,  §§  965,  966.  taken  a  certain  duty  is  left  at  liberty 

*  Sibbald  «.  Bethlehem  Iron  Co.,  83  to  choose  his  own  means  and  meth- 
N.  Y.  378,  38  Am.  Rep.  441.  ods. 

*  In  this  respect  the  broker  stands  *  See  ante,  §  653. 

in  the  attitude  of  one  pursuing  an  in-  '  Sibbald  «.  Bethlehem  Iron  Co. 

dependent  calling,  who  having  under-      awpra. 

809 


§  980.  THE   LAW   OF    AGKNOT.  [Book  V. 

in  his  possession  belonging  to  another,  until  certain  demands  of  the 
party  in  possession  are  satisfied,  and  it  presupposes  that  the  per- 
son claiming  the  lien  has  possession  of  the  property.  It  is  evi- 
dent, however,  from  the  nature  of  the  broker's  employment  that 
he  has  not,  under  ordinary  circumstances,  any  property  of 
his  principal  in  his  possession  upon  which  the  lien  could 
attach.' 

§  980.  Lions  in  special  Cases— Insurance  Brokers.  But  a 
broker  may  be,  and  often  is,  intrusted  with  the  possession  of  the 
property  in  respect  to  which  he  negotiates,  thus  combining,  with 
his  character  as  broker,  certain  also  of  the  characteristics  of  the 
factor.  Where  such  is  the  case,  he  may  have  a  lien  upon  such 
property  for  his  costs  and  charges  in  respect  thereto.* 

And  from  the  general  custom  to  intrust  to  them  the  possession 
of  the  policies  of  insurance  effected  by  them,  insurance  brokers 
have  a  lien  upon  such  policies  and  the  proceeds  of  them,  not 
only  for  their  commissions  and  premiums  paid  by  them  upon 
those  particular  policies,  but  also  for  their  general  insurance 
balance  against  their  principal.* 

8  981.  No  Lien  except  for  Debt  due  from  Principal.  But 
even  if  the  broker  possessed  a  lien  in  any  case,  the  debt  in  respect 
to  which  it  is  claimed  must  in  general  be  due  from  the  person 
whose  property  he  seeks  to  retain,  and  therefore  if  he  knows  or 
has  reason  to  believe  that  the  person  by  whom  he  is  employed  is 
himself  but  the  agent  of  another  to  whom  the  property  belongs, 
he  will  not  be  allowed  to  retain  it  for  a  debt  due  from  the  agent 
only.* 

But  this  rule  does  not  conflict  with  that  which  permits  a  sub- 
ao-ent  to  claim  a  lien  against  the  real  principal  in  the  transaction, 
in  accordance  with  rules  heretofore  considered,'  because  in  these 
cases  the  debt  is,  in  reality,  the  debt  of  the  principal,  either  from 
the  fact  that  he  expressly  or  impliedly  authorized  it  or  that  he 
has  subsequently  ratified  and  confirmed  it. 

'  Barry  v.  Boninger,  46  Md.  59.  McKenzie  e.  Nevius,  23  Me.  138,  38 

8  Barry  v.  Boninger,  46 Md.  59.  Am.  Dec,  291;  Spring  v.  Ins.  Co.,  8 

»  2  Phillips  on  Ins.,  §  1909;  Snook  Wheat.  (U.  8.)  268. 

V.   Davison,  2  Camp.  218;  Fisher  v.  «  Barry  «.  Boninger,  46  Md.  59. 

Smith,  4  App.  Cas.  1,  33  Eng.  Rep.  1;  »  See  ante,  §  693. 

810 


Chap.  III.J  BEOKEKB.  §  983. 

VII. 

BIGHTS   OF   BROKER   AGAINST   THIRD    PERSONS, 

§  982.  In  general,  no  Right  of  Action  on  Contracts,  The 
broker,  as  has  been  seen,  ordinarily  contracts  as  such  for  a  prin- 
cipal named,  or  acts  merely  as  a  middle-man  to  bring  the  parties 
together  to  contract  for  themselves.  Where  such  is  the  mode  of 
dealing  the  broker  assumes  no  personal  obligations  and  acquires 
no  rights  of  action,  the  benefits  and  obligations  attaching  only  to 
his  principals.* 

§  983.  When  he  may  sue.  It  has  been  seen  in  an  earlier 
portion  of  this  work  that  an  agent  may  maintain  an  action  in 
his  own  name  against  third  persons  upon  contracts  made  with 
them  in  the  following  cases  :  a.  Where  the  agent  has  contracted 
personally;  h.  Where  the  agent  was  the  real  principal  under 
certain  circumstances ;  and,  c.  Where  the  agent  has  a  special 
interest  in  the  subject-matter  of  the  contract.* 

These  rules  apply  in  general  to  the  case  of  brokers.  The  very 
fact  that  one  deals  as  broker  implies  the  existence  of  a  principal 
for  whom  he  acts;*  but,  notwithstanding  this,  he  may  so  act  as 
to  make  himself  the  party  to  the  contract  instead  of  his  princi- 
pal. Where  this  is  the  case,  he  may  maintain  an  action  upon  the 
contract  in  his  own  name.*  This  right,  however,  is  ordinarily 
subject  to  the  prior  right  of  the  principal  to  intervene  and  claim 
performance  to  himself,  the  defendant  being  then  entitled  to  be 
put  in  the  same  situation,  at  the  time  of  the  intervention  of  the 
principal,  as  if  the  agent  had  been  the  real  contracting  party.' 

Where,  however,  the  broker  has  contracted  as  such,  the  name 
of  the  principal  on  whose  account  he  deals  being  disclosed,  the 
right  of  action  is  in  the  principal  only  and  the  broker  cannot 

sue.* 

An  exception  to  this  rule  exists  in  the  case  of  the  insurance 
broker.  Policies  not  under  seal  are  frequently  issued  payable  to 
the  broker  for  the  benefit  of  a  named  principal,  or  "for  the 
owners  "  or  "  for  whom  it  may  concern,"  '  and  actions  upon  such 

«  Fairlie  v.  Fenton,  L.  R.  6  Ex.  169.  »  See  ante,  §  773. 

«  See  ante,  §§  754-756.  •  Fairlie  v.  Fenton,  L.  R.  5Ex.  169; 

« Baxter  v.  Duren,  29  Me.  434,  50  Sharman  v.  Brandt,  L.   R.  6  Q.  B. 

Am.  Dec.  603.  720. 

«  See  ante,  §  755.  '  "There  are  obvious  reasons," saj-i 

811 


§  9S-t.  THE    LAW    OF    AGENCY.  [Book  V. 

a  policy  may  be  brought  either  in  the  name  of  the  broker  to 
whom  it  was  made  payable,'  or  of  the  principal  for  whose  benefit 
it  was  effected.' 

YIII. 

KiaHTS   OP   PRINCIPAL   AGAINST  THIRD   PERSONS. 

§  984.  Same  as  in  other  Cases  of  Agency.  The  question  of 
the  rights  of  the  principal  against  third  persons  on  contracts 
made  by,  or  through  the  intervention  of  a  broker,  depends  upon 
the  same  considerations  which  control  in  the  case  of  similar  con- 
tracts made  by  any  other  agent  and  which  have  already  been 
discussed.  In  general  terms,  however,  the  principal  is  entitled 
to  demand,  receive  and  enforce  the  performance  by  the  third 
persons,  with  whom  the  broker  deals,  of  all  contracts  and  obliga- 
tions made  in  his  name  or  in  his  behalf ;  and  to  have  the  same 
remedies  for  the  protection  of  his  interests  and  the  recovery  and 
preservation  of  his  property  which  he  would  have  if  acting  in  his 
own  proper  person.'  And,  as  will  be  seen  in  a  following  section, 
inasmuch  as  the  broker  deals  ordinarily  as  agent  only,  and  not  as 
the  ostensible  principal,  the  principal's  rights  are  not  subject  to 
any  set-offs  or  equities  existing  against  the  broker.* 

IX. 

RIGHTS   OP   THIRD   PERSONS   AGAINST   PRINCIPAL. 

§  985.     Same  as  in  other  Cases  of  Agency.      The   rights   of 

Putnam,  J.,    "for  the  introduction  State  Ins.  Co.,   1  La.   220,  20  Am 

of  the  clause  in  question.    Tlie  in-  Dec.  277. 

surance  brokers  miglit  desire  to  have  '  Farrow  v.  Commonwealth,  supra; 

the  loss  paid  to  them  to  indemnify  Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend 

them  for  any  advances  for  premium  (N.  Y.)  82,  22  Am,  Dec.  567;  Provin 

or  otherwise,  which  they  might  have  cial  Ins.  Co.  v.  Leduc,  L.  R.  6  P.  C 

against  the  owners;  and  the  insurance  C.  232,  11  Eng.  Rep.  84. 

company  might  desire  to  have  that  "  Farrow    v.    Commonwealth    Ins 

clause,  to  enable  them  to  set  off  any  Co.,   supra;    Lazarus    v.     Common 

legal  claim  which  they  might  have  wealth  Ins.  Co.,  5  Pick.  (Mass.)  76 

against  the  insurance  brokers."    Far-  Browning*.  Provincial  Ins.  Co.,  L 

row  «.  Commonwealth  Ins.  Co.,  18  R.  5  P.  C.  C.  263,  8  Eng.  Rep.  217; 

Pick.  (Mass.)  53,  29  Am,  Dec.   564.  Sargent  v.  Morris,  3  B.  «&  Aid.  281. 

But  insurance  company  cannot  set  ^  gee  ante,  §§  766-799. 

off  individual  debt  of  agent  against  *  See  post,  §  986. 
the  principal.    Braden  v.  Louisiana 

812 


Chap.  III.]  BROKERS.  §  986. 

third  persons  against  the  principal  for  the  acts  and  contracts  of 
the  broker  rest  upon  the  same  principles  as  in  other  cases  of 
agency.  "Where  the  broker  acting  within  the  limits  of  his 
authority  has  bound  his  principal  to  third  persons,  they  are 
entitled  to  the  same  rights  and  remedies  against  him  as  though 
the  same  act  had  been  done  by  him  in  person.' 

Where,  on  the  other  hand,  the  broker  has  exceeded  his  authori- 
ty, his  principal  is  not  bound,  nor  can  the  broker  bind  him,  in 
opposition  to  express  instructions,  by  pursuing  his  usual  course 
of  dealing.* 

§  986.  No  Set-off  of  Broker's  Debts.  As  has  been  seen,  the 
broker  has  usually  no  possession  of  the  property  which  he  is 
employed  to  sell,  and  acts  ordinarily  only  in  the  name  of  the 
principal.  His  character  implies  that  he  is  acting  for  another, 
and  whether  the  name  of  that  other  is  disclosed  or  not,  it  is  well 
settled  that  where  the  broker  has  not  been  permitted  to  appear 
as  the  principal,  by  being  entrusted  with  the  possession  of  the 
property  or  the  usual  indicia  of  ownership,  the  third  persons 
with  whom  he  deals  cannot,  when  called  upon  for  performance 
by  the  principal,  set-off  against  the  latter  debts  or  obligations 
due  to  them  from  the  broker.' 

'  See  ante,  %%  694-753.  quent  time  for  the  same  price;  his 
'  "  A  broker  is  a  special  agent,  and  power  is  limited  by  and  ceases  with 
derives  his  power  and  authority  to  his  instructions;  and  this  is  so,  even 
bind  his  principal  from  the  instruc-  though  it  had  been  usual  in  the  course 
tions  given  to  him  by  his  priucipal:  of  dealings  between  the  broker  and 
Code,  sees.  2194,  2196,  2184;  Story  his  principal  for  the  broker  to  con- 
on  Agency,  32;  1  Esp.  Ill,  113;  82  tinue  to  sell  at  the  prices  quoted  last 
Md,  169;  60  111.  237.  When  definite  by  the  principal:  32  Md.  179,  180." 
instructious  are  given  by  the  princi-  Clark  v.  Cumming,  77  6a.  64,  4  Am. 
pal  to  the  broker  to  sell   goods  for  St.  Rep.  72. 

him  at  a  certain  specified  price  for  a  "Baring  v.  Corrie,  2  B.  &  Aid.  137; 

certain  time  and  day  only,  this  will  Graham  v.  Duckwall,  8  Bush  (Ky.) 

not  authorize  the  broker  to  contract  12;  Crosby  e.  Hill,  89  Ohio  St.  100; 

and  sell  the  same  kind  of  goods  for  Cooke  v.  Eshelby,  12  App.  Cas.  271, 

his  principal  at  a  diflerent  and  subse-  88  Eng.  Rep.  872. 

813 


THE    LAW    OF    AGENOT. 


[Book  V. 


CHAPTER    IV. 


OF  FACTORS. 


I.  Definitions  and  Distinctions. 
§  986a.  Factors  or  Commission  Mer- 
chants defined. 

II.  How  Appointed. 

987.  Same  as  otlier  Agents. 

III.  Implied    Powers  op  Factors 

988.  In  general. 

989.  How  affected  by  Usage. 

990.  To  sell  on  Credit. 

991.  To  sell  in  his  own  Name. 

992.  To  warrant  Quality. 

993.  To  receive  Payment. 

994.  To  pledge. 

995.  To  pledge  —  Under  Factor's 
Acts. 

996.  To  pay  his  own  Debts. 

997.  To  barter  or  exchange. 

998.  To  delegate  his  Authority, 

999.  To  compromise  the  Debt. 

1000.  To  submit  to  Arbitration. 

1001.  To  rescind  Sale. 

1002.  To  extend  Time  of  Payment. 

1003.  To    receive    anything    but 
Money  in  Payment. 

1004.  To  make  negotiable  Paper, 

1005.  To  insure  Property. 

IV,  Duties    and     Liabilities    to 

Principal. 

1006.  To  use  reasonable  Care  and 
Prudence. 

1007.  To  act  in  good  Faith, 

1008.  To  obey  Instructions, 

1009.  Same  Subject  —  Instructions 
to  Sell. 

1010.  Same  Subject — Instructions 
to  sell  for  Cash, 

1011.  Same  Subject  —  Instructions 
to  insure, 

1012.  Duty  to  inform  Principal, 


1013.  Duty  to  sell  only  to  responsi- 
ble Purchaser. 

1014.  Same  Subject  —  Del  Credere 
Commission. 

1015.  Factor's    Duty    to  care    for 
Property. 

1016.  General  Duty  as  to  Sales, 

1017.  Duty  as  to  Place  of  Sale, 

1018.  Duty  as  to  Time  of  Sale, 

1019.  Duty  as  to  Price. 

1020.  Duty  in  collecting  Price. 
1031.  Factor's    Duty    in    keeping 

Accounts. 
1023.    Not  obliged  to  keep  Funds 
separate. 

1023.  Factor's  Duty  to  account  for 
Money  and  Property, 

1024.  Duty  in  remitting  Money, 

1025.  When    Principal     may    sue 
Factor. 

1026.  Liability  for    Acts  of    Sub- 
agent, 

'.    RiGUTS    of    Factor    Against 

Pkincipal. 

a.    Crmmissions. 

1027.  Factor  entitled  to  Compensa- 
tion, 

1028.  When  Factor  may  have  Com- 
missinns  from  both  Parties. 

b.  Reimbursement. 

1029.  Factor  entitled  to  Reimburse- 
ment. 

1030.  Same  Subject  —  Conclusive- 
ness of  Accounts, 

c.  Indemnity. 

1031.  Factor  entitled  to  Indemnity 

against  Losses. 

d.  Lien. 
1032    Factor  entitled  to  Lien. 


814 


Chap.  lY.] 


FACTORS. 


§  9SGa. 


§  1033.  When  Lien  does  not  exist, 

1034.  Nature  of  the  Lien. 

1035.  When  Lien  attaches. 

1036.  Who  may  confer  Lien. 

1037.  How  Lieu  may  be  lost. 

1038.  How  Lien  enforced. 

VL    Rights    of    Factor    against 

Third    Persons. 

a.  In  Contract. 

1039.  May  sue  for   Price  of  Goods 

sold. 

1040.  May  sue  on  Contracts  made 
in  his  Name. 

b.  In  Tort. 

1041.  May  maintain  Trespass,   Re- 
plevin or  Trover. 

VIL  Rights  op  Principal  against 
THIRD  Person. 
a.  In  Contract. 
1043.  May  sue  for  Price  of  Goods 
sold. 


§  1043.  Same   Subject  —  What    De- 
fences Principal  subject  to. 

1044.  Right  to  follow  Property. 

b.  In   Tort. 

1045.  For  Injuries  to    or  Conver- 
sions of  the  Goods. 

VIIL    Rights    op    third   Person 
AGAINST    Principal. 

1046.  Same  as  in  other  Cases. 

1047.  How  when  Principal  undis- 
closed. 

1048.  How  when  exclusive  Credit 
given  to  the  Factor. 

IX.  Rights  of    third    Person 
against  Factor. 

1049.  Same  as  in  other  Cases. 

1050.  When  liable  for  Conversion. 

1051.  How  in  case  of  foreign  Fac- 
tor. 

X.  How  Relation  Terminated. 

1052.  As  in  other  Cases  of  Agency- 


DEFINITIONS    AND   DISTTNCmONS. 

§  986a.  Factors  or  Commission  Merchants  defined.  As  has 
been  stated  in  the  opening  chapter  of  the  work,  these  terms  are 
nearly  or  quite  synonymous.  The  former  is  the  more  common 
in  the  language  of  the  law,  the  latter  in  the  language  of  com- 
merce. A  factor  is  one  whose  business  it  is  to  receive  and  sell 
goods  for  a  commission.  He  differs  from  a  broker  in  that  he  is 
entrusted  with  the  possession  of  the  goods  to  be  sold  and  usually 
sells  in  his  own  name.  He  is  invested  by  law  with  a  special 
property  in  the  goods  to  be  sold  and  a  general  lien  upon  them, 
for  his  advances ;  and  unless  there  be  an  agreement  or  usao-e  to 
the  contrary,  he  may  sell  upon  a  reasonable  credit.* 

Del  Credere  Commission.  Where,  in  consideration  of  an 
increased  commission,  the  factor  guarantees  the  payment  of  debts 
arising  through  his  agency,  he  is  said  to  sell  upon  a  del  credere 
commission.* 


»  See  anU,  §  14. 


*Ante,  §  14. 


815 


§  987.  THE    LAW    OF    AGENCY.  [Book  V. 

Supercargo.  A  factor  is  called  a  supercargo  when  authorized 
to  sell  a  cargo  which  he  accompanies  on  the  voyage.* 

Consignee.  The  principal  in  these  transactions  is  also  often 
called  the  consignor,  and  the  factor  the  consignee. 

No  separate  consideration  of  the  rights,  duties  and  liabilities 
of  commission  merchants  or  consignees  is  here  intended,  but  the 
whole  topic  will  be  treated  under  the  general  title  of  factor. 

11. 

HOW    APPOINTED. 

§  987.  Same  as  other  Agents.  '  No  formal  mode  of  authori- 
zation is  requisite  in  the  employment  of  a  factor.  Like  other 
agents,  he  may  be.  and  usually  is,  authorized  by  parol ;  his 
appointment  may  be  inferred  from  conduct ;  and  his  unauthor- 
ized acts  may  be  ratified  by  the  principal's  subsequent  acquics- 
cence  or  adoption.* 

III. 

IMPLIED    POWERS   OF   FACTOES. 

§  988.  In  general.  A  factor,  like  other  agents,  possesses  those 
implied  and  incidental  powers  which  are  reasonably  necessary 
and  proper  for  the  execution  of  his  undertaking,  and  which  are 
usually  exercised  by  factors  under  like  circumstances  and  which 
are  not  forbidden.' 

§  989.  How  aflfected  by  Usage.  As  in  the  case  of  brokers, 
the  law  regulating  the  transactions  of  factors  is  largely  the  out- 
growth of  commercial  usage,  and  such  usage  is  constantly  appealed 
to  in  interpreting  or  defining  their  powers.*  "A  person  who  deals 
in  a  particular  market,"  says  Sheldon,  J.,  "must  be  taken  to  deal 
according  to  the  known,  general  and  uniform  custom  of  that  n)ar- 
ket ;  and  he  who  employs  another  to  act  for  him  at  a  particular 
place  or  market  must  be  taken  as  intending  that  the  business  will 

1  AnU,  §  14.  him  show  that  he  received  and  sold 

»  See  ayite,  §§  79-108.  the  property.     Deshler    v.    Beers,  32 

Factor's  retainer  may  be  proved  by  111.  368,  83  Am.  Dec.  274. 

ma!  testimony  in  a  suit  against  him  '  See  ante,  §  311. 

to  recover  the  proceeds  of  a  sale,  and  *  Phillips  v.  Moir,  69  111.  155;  Ow- 

it  is  immaterial  whether  a  retainer  is  ings  v.  Hull,  9  Peters  (U.  S.)  607. 

proved  at  all,  when  letters  written  by 

816 


Chap.  lY.]  FA0T0B8.  §  990. 

be  done  according  to  the  usage  or  custom  of  that  place  or  market, 
whether  the  principal  in  fact  knew  of  the  usage  or  custom  or 
not."  *  How  far  this  presumption  of  knowledge  is  conclusive, 
however,  has  been  considered  in  an  earlier  section.' 

Subject  to  certain  limitations  there  referred  to,  it  is  clear  that 
where  there  are  no  instructions  to  the  contrary,  not  only  does  the 
principal  intend,  but  it  is  the  factor's  duty  to  the  latter,  that  the 
factor  shall  conform  to  the  regular  and  established  customs  pre- 
vailing in  reference  to  his  undertaking  at  that  time  and  place.' 
So,  on  the  other  hand,  where  no  instructions  to  the  contrary  are 
given,  and  in  the  absence  of  unusual  exigencies  or  contingencies, 
the  factor  has  performed  his  duty  to  his  principal  when  he  has 
performed  his  undertaking  in  the  usual  and  ordinary  manner.* 

§  990.  To  sell  on  Credit.  It  was  formerly  considered  that  a 
factor  had  no  implied  power  to  sell  upon  credit,'  but  the  rule  is 
now  well  settled  that,  in  the  absence  of  instructions  or  an  usage 
to  the  contrary,  the  factor,  exercising  reasonable  care  and  pru- 
dence in  the  selection  of  a  responsible  purchaser,  may  sell  the 
goods  upon  a  reasonable  term  of  credit.'  Where,  however,  he 
is  instructed  to  sell  for  cash  only,'  or  where  the  custom  is  not 
to  grant  credit,'  a  factor  has  no  implied  power  to  sell  upon  credit. 
Upon  a  sale  on  credit,  the  factor  may  take  negotiable  paper 
in  his  own  name  in  payment  and  may  discount  the  same  for  his 
principal  or  surrender  it  up  when  paid.*     But  if  he  discounts  it 

1  In  Bailey  v.  Bensley,  87  111.  556,  pool,  6  Johns.  (N.  T.)69,  5  Am.  Dec. 
citing  ytory  on  Agency,  §§  GO,  9(3,  193;  Greely  «.  Bartlett,  1  Greenl. 
199;  1  Chitty  Cont.  11th  Am.  ed.  83;  (Me.)  172,  10  Am.  Dec.  54;  Hapgood 
Sutton  V.  Tatham,  10  A.  &  E.  27;  v.  Batcheller,  4  Mete.  (Mass.)  576; 
Bayliffe  v.  Butterwortb,  1  W.  H.  «&  Robertson  v.  Livingston,  5  Cow.  (N. 
G.  (Exch.)  428;  Lyon  «.  Culbertson,  Y.)  473;  Leland  v.  Douglass,  1  Wend. 
88  111.  33;  United  States  L.  Ins.  Co.  (N.  Y.)  490;  Burton  v.  Goodspeed, 
V.  Advance  Co.,  80  111.  549.  69  111.  238;  Byrne  v.  Schwing,  6  B, 

2  See  anfe,  §  486.  Mon.  (Ky.)  201;    Given  v.  Lemoine, 

3  Phillips©.  Moir,  69  111.  155.  85  Mo.  110;  Daylight  Burner  Co.  v. 

*  Phillips  V.  Moir,  supra;  Davis  v.  Odlin,  51  N.  H.  56,  12  Am.  Rep.  45; 
Kobe,  86  Minn.  214, 1  Am. St.  Rep.  663.      Houghton  v.  Matthews,  3  B.   «&  P. 

8  Bee  Paley  on  Agency,  26;  2  Kent's  489;  Pinkham  v.  Crocker,  77  Me.  563. 

Com.  622.  7  Bliss  v.  Arnold,  8  Vt.  252,  30  Am. 

•  McConnico  v.  Curzen,  2  Call  (Va.)  Dec.  467;  Hall  v.  Storrs,  7  "Wis.  2o;>. 
858.  1  Am.  Dec.  540;  James  v.  Mc-  »  Harbert  v.  Neill,  49  Tex.  143; 
Credie,  1  Bay  (S.  C.)  294,  1  Am.  Dec.  Neill  v.  Billingsley,  Id.  161;  Kauff- 
617;  Goodenow  v.  Tyler,  7  Mass.  36,  man  v.  Beasley,  54  Tex.  563. 

5  Am.  Dec.  22;  VanAlen  v.  Vander-  »  Goodenow  v.  Tyler,  7  Mass.  36,  5 

52  817 


§  'J91. 


THE    LAW   OF   AGENCY. 


[Book  Y. 


for  his  own  accommodation,  he  makes  the  note  his  own,  and  will 
be  liable  though  the  maker  fails.* 

§  991.  To  sell  in  his  own  Name.  In  the  absence  of  instruc- 
tions to  the  contrary,  the  factor  has  implied  authority  to  sell 
the  goods  in  his  own  name  without  disclosing  that  of  his  princi- 
pal.' 

§  992.  To  warrant  Quality.  A  factor,  like  other  agcMits 
authorized  to  sell  goods,  has,  unless  otherwise  limited,  implied 
power  to  warrant  the  quality  of  the  goods  sold  where  such  a  war- 
ranty is  usually  given  on  similar  sales  at  that  time  and  place.' 

§  993.  To  receive  Payment.  Being  intrusted  with  the  pos- 
session of  the  goods  which  he  is '  authorized  to  sell,  and  having 
implied  power  to  sell  in  his  own  name,  the  factor  may  undoubt- 
edly receive  payment  for  the  goods  sold,*  and  give  the  necessary 
and  proper  receipts  therefor.* 

§  994.  To  pledge.  In  the  absence  of  a  statute  granting  that 
authority,  the  rule  is  well  established  that  a  factor  has  no  implied 
power  to  pledge  the  principal's  goods  for  the  factor's  own  debt.' 


Am.  Dec.  22;  West  Boylston  Mnfg 
Co.  V.  8earle,  15  Pick.  (Mass.)  225; 
Greely  v.  Bartlett,  1  Greenl.  (Me.) 
172,  10  Am.  Dec.  54. 

'  Myers  v.  Entriken,  6  Watts  & 
Seig.  (Penn.)  44,  40  Am.  Dec.  538. 

*  Baring  v.  Corrie,  2  B.  &  Aid. 
137;  Graham  v.  Duckwall,  8  Bush 
(Ky.)  12. 

3  Pickering  v.  Busk,  15  East.  38; 
Kandall  v.  Kehlor,  60  Me.  37;  Schuch- 
ardt  V.  Aliens,  1  Wall.  (U.  S.)  359; 
Andrews  v.  Kneeland,  6  Cow.  (N.  Y.) 
854.  See  also  Pickert  v.  Marston,  68 
Wis.  465,  GO  Am.  Rep.  876;  Herring 
p.  Skaggs,  68  Ala.  180,  34  Am.  Rep. 
4;  Upton  v.  Suffolk  Mills,  11  Cush. 
(Mass.)  586,  69  Am.  Dec.  163;  Smith 
«.  Tracy,  36  N.  Y.  82;  Ahern  v.  Good- 
speed,  72  N.  Y.  108.  But  .•<ee  Arger- 
singer  v.  Macnaughton,  114  N.  Y.  5o5. 

*  Drinkwater  v.  Goodwin,  Cowp. 
256;  Rice  v.  GrofEmann,  56  Mo.  434. 

»  Corlies  v.  Gumming,  6  Cow.  (N. 
Y.)  181;  VanStaphorst  «.  Pearce,  4 
Mass.  258. 


•  McCombie  v.  Davies,  6  East.  538; 
Pickerings.  Busk,  15  East  38;  Phil- 
lips V.  Huth.  6  M.  &  W.  572;  Cole  v. 
Northwestern  Bank,  L.  R.  10  C.  P. 
354,  12  Eng.  Rep.  418;  Wright  v.  Sol- 
omon, 19  Cal.  64,  79  Am.  Dec.  19G; 
Kinder  v.  Shaw,  2  Mass.  397;  Warner 
V.  Martin,  11  How.  (U.  S.)  204;  Hoff- 
man V.  Noble,  6  Mete.  (Mass.)  68,  39 
Am.  Dec.  711;  Thurston  «.  Blanchard, 
22  Pick.  (]\rass.)  20,  33  Am.  Dec.  700; 
Bott  V.  McCoy,  20  Ala.  578,  56  Am. 
Dec.  223;  Kennedy  v.  Strong,  14 
Johns.  (N.  Y.)  128;  Rodriguez  v. 
Heflerman,  5  Johns.  Ch.  (N.  Y.)  417; 
First  National  Bank  v.  Nelson,  38 
Qa.  891,  95  Am.  Dec.  400;  Newbold 
V.  Wright,  4  Rawle  (Penn.)  195; 
Merchants'  National  Bank  v.  Tren- 
holm,  12  Heisk.  (Tenn.)  520;  Gray.c. 
Agnew,  95  111.  315;  First  National 
Bank  v.  Boyce,  85  Ky.  42,  £9  Am. 
Rep.  198;  McCreary  «.  Gaines,  55 
Tex.  485,  40  Am.  Rep.  818;  Stetson 
V.  Gurney,  17  La.  166;  Hadwin  v. 
Fisk,    1    La.     Ann.     43;    Miller    o. 


818 


Chap.  I  v.]  FACT0K8.  §  994. 

This  doctrine  results  from  the  fact  that  the  factor  is  but  an  aerent, 
and  as  such  can  bind  his  principal  only  when  his  acts  are  within 
the  scope  of  his  authority.  A  power  to  sell  for  the  benefit  of  his 
principal  can  in  no  way  be  stretched  into  a  power  to  pledge  for 
his  own  benefit.  Nor  does  it  make  any  difference  that  the  pledgee 
was  ignorant  of  the  extent  of  the  factor's  authority,  or  supposed 
him  to  be  the  real  owner  of  the  goods.*  As  in  the  case  of  other 
agents,  the  person  dealing  with  the  factor  must  ascertain  the 
extent  of  his  authority,  and  omits  to  do  so  at  his  peril. 

This  rule  operates  to  prevent  a  transfer  or  indorsement  of  the 
bill  of  lading  by  way  of  security  for  the  factor's  debt,  as  well  as 
the  actual  delivery  of  the  goods  themselves  in  pledge.'  Nor  can 
tlie  power  arise  from  usage.' 

But  it  has  been  held  that  a  factor  may  pledge  the  goods  for  the 
payment  of  charges  against  the  goods  themselves,  as  for  duties 
levied  upon  them,*  or  to  meet  a  draft  drawn  by  the  principal 
against  the  proceeds  before  the  goods  were  sold.*  So  it  has  been 
held  that,  though  a  pledge  by  the  factor  was  unauthorized,  a  JciTza 
Jide  pledgee  will  be  protected  to  the  extent  of  the  factor's  charge 
against  the  principal.' 

Like  other  unauthorized  acts  of  an  agent,  however,  a  pledo-e 
by  the  factor  may  be  ratified  by  the  principal,  and  if  he  is  con- 
tent with  it,  no  one  else  has  a  right  to  complain.'     The  factor 

Schneider,  19  La.  Ann.  300,  92  Am.  » Newbold    v.    Wright,    4    Rawle 

Dec.  535;  Young  t).  Scott,  25  La.  Ann.  (Penn.)  195. 

318;  Insurance  Co.  v.  Kiger,  103  U.  *  Evans  v.  Potter,  3  Gall.  (U.  S.  C. 

S.  352;  Horr  v.   Barker.  11  Cal.  393,  C.)  12. 

70  Am.  Dec.  791;  Benny  c.  Rhodes,  '  Boyceu.  Commerce  Bank,  22  Fed. 

18  Mo.  147,  59  Am.  Dec.  293;  Benny  Rep.  53.     But  see  Graham  v.  Dyster, 

V.  Fegram,  18  Mo.  191,  59  Am.   Dec.  2  Stark.  N.  P.  23. 

298;  Bowie  v.  Napier.  1  McCord.  (S.  •  First  National  Bank  v.  Boyce,  85 

Car.,  1,  10  Am.   Dec.   641;   Allen  v.  Ky.  42,  39  Am.  Rep.  198;  Warner  p. 

St.  Louis  Bank,  120  U.  S.  20.  Martin,  11  How.  (U.  S.)  209,  conim, 

*  Wright  t).  Solomon,  19  Cal.  64,  79  Merchants'    Bank  v.    Trenholm,    13 

Am.  Dec.  196.  Heisk.  (Tenn.)520.    See  also  Walther 

»Newsomr.  Thornton,  6  East.  17;  «.   Wetraore,  1   E.   D.  Smith  (N.  Y.) 

Phillips  V.  Huth,   6  M.   &  W.  572;  7;  Bonito  v.  Mosquera,    2  Bosw.  (N. 

Rice  V.  Cutler,  17  Wis.  351;  Hirschorn  Y.)  401. 

e.  Canney,  98  Mass.  149;   Erie,  &c.  '  Bott  v.  McCoy,  20  Ala.    578,   50 

Co.  V.  St.  Louis  Co.,  6  Mo.  App.  172;  Am.  Dec.  223;  Meyer  v.  Morgan,  51 

Fourth  Nat.  Bank  v.   St.   Louis  Co.,  Miss.  21,  24  Am.  Rep.  617. 

11  Mo.  App.  333;  Allen  v.  St.  Louis  As  in  other  cases,   however,    (he 

Bank,  120  U.  S.  20.  principal  will  not  be  deemed  to  have 

819 


§995. 


THE   LAW   OF   AGENOT. 


[Book  Y. 


himself,  therefore,  can  not  allege  his  own  tortious  act  to  sustain 
an  action  in  his  own  name  against  the  pledgee  for  the  recovery  of 
the  goods  or  their  value.' 

§  995.  To  pledge— Under  Factor's  Acts.  This  rule  which 
declares  invalid  the  unauthorized  pledge  by  the  factor,  confessedly 
works  great  hardships  to  innocent  parties  who  have,  in  good  faith, 
relied  upon  the  possession  and  apparent  ownership  of  the  factor, 
and  courts  have  frequently,  while  declaring  that  the  rule  was  too 
well  settled  to  be  shaken,  expressed  the  opinion  that  it  might 
better  originally  have  been  settled  the  other  way. 

To  remedy  this  hardship,  the  legislatures  of  several  of  the 
States  have  passed  what  are  ordinarily  known  as  Factors'  Acts, 
for  the  protection  of  those  who  in  good  faith  have  dealt  with  the 
factor  in  the  belief  that  he  was  the  true  owner  of  the  goods.* 


ratified  unless  he  had  knowledge  that 
the  agent  had  exceeded  his  authority. 
Bryant  e.  Moore,  26  Me.  84,  45  Am. 
Dec.  96. 

'  Bott  V.  McCoy,  20  Ala.  578.  56 
Am.  Dec.  223. 

»  The  Factors'  Act  of  New  York 
after  which  many  of  those  of  the 
other  states  have  been  modeled,  pro- 
vides: 

"  §  3.  Every  factor  or  other  agent, 
entrusted  with  the  possession  of  any 
bill  of  lading,  custom-house  permit, 
or  warehouse-keeper's  receipt  for  the 
delivery  of  any  such  merchandise, 
and  every  such  factor  or  agent  not 
having  the  documentary  evidence  of 
title,  who  shall  be  entrusted  with  the 
possession  of  any  merchandise  for 
the  purj>ose  of  sale,  or  as  a  security 
for  any  advances  to  be  made  or  ob- 
tained thereon,  shall  be  deemed  to  be 
the  tnie  owner  thereof,  so  far  as  to 
give  validity  to  any  contract  made  by 
such  agent  with  any  other  person, "for 
the  sale  or  disposition  of  the  whole 
or  any  part  of  such  merchandise,  for 
any  money  advanced,  or  negotiable 
instrument  or  other  obligation  in 
writing,  given  by  such  other  person 
upon  the  faith  thereof. 


"§4.  Every  person  who  shall  here- 
after accept  or  take  any  such  mer- 
chandise in  deposit  from  any  such 
agent,  as  a  security  for  any  anteced- 
ent debt  or  demand,  shall  not  acquire 
thereby,  or  enforce  any  right  or  inter- 
est in  or  to  such  merchandise  or  doc- 
ument, other  than  possessed  or  might 
have  been  enforced  by  such  agent  at 
the  time  of  such  deposit. 

"  §  5.  Nothing  contained  in  the  two 
last  preceding  sections  of  this  act. 
shall  be  construed  to  prevent  the  true 
owner  of  any  merchandise  so  deposit- 
ed, from  demanding  or  receiving  the 
same,  upon  repayment  of  the  money 
advanced,  or  on  restoration  of  the 
security  given,  on  the  deposit  of  such 
merchandise,  and  upon  satisfying 
such  lien  as  may  exist  thereon  in  favor 
of  the  agent  who  may  have  deposit- 
ed the  same;  nor  from  recovering  any 
balance  which  may  remain  in  the 
hands  of  the  person  with  whom  such 
merchandise  shall  have  been  deposited 
as  the  produce  of  the  sale  thereof, 
after  satisfying  the  amount  justly 
due  to  such  person  by  reason  of  such 
deposit." 

Statutes  of  this  nature  are  found  in 
Maine,   Rev.  Stats.    1883,   Chap.  31, 


820 


Chap.  ly.] 


FA0T0B8. 


§995. 


While  these  Acts  vary  in  their  provisions,  they  are  in  general 
designed  for  the  protection  of  those  who  in  good  faith,  and  in 
ignorance  of  any  defect  of  title  in  the  pledgor,  or  of  the  claims 
of  others  to  it,  advance  money  or  incur  liability  upon  the  faith 
of  the  merchandise  and  ownership  thereof  by  the  pledgor,  as  evi- 
denced by  the  possession  of  the  property,  or  the  documentary 
evidence  of  title  with  which  he  has  been  intrusted  by  the  owner. 
It  is  the  act  of  the  owner  in  intrusting  the  factor  with  the  pos- 
session of  the  goods,  or  the  documentary  evidence  of  ownership, 
— the  apparent  ownership  and  right  of  disposal, — in  connection 
with  the  fact  that  innocent  third  persons  deal  with  him  upon  the 
faith  of  such  apparent  ownership,  that  estops  the  owner  from  fol- 
lowing his  property  into   the   hands   of  hona  Jide   vendees  or 


§  1 ;  Massachusetts,  Pub.  Stats.  1882, 
Chap.  71;  Rhode  Island,  Pub.  Stats, 
1882,  p.  332;  Pennsylvania,  Bright- 
ley's  Purdon's  Digest,  p.  773;  Ohio, 
Eev.  Stats.  1886,  §3216;  Maryland, 
Rev.  Code,  1878,  p.  292;  Kentucky, 
Laws  of  1880,  May  5,  §§  1  &6;  Mis- 
souri, Laws  of  1869,  p.  91. 

Mr.  Stimson  in  his  excellent  com- 
pilation of  American  Statute  Law 
gives  the  following  summrry  cf  these 
acts,  §4881:  "  In  many  states  every 
factor,  agent  (or  other  person  in 
Maryland),  intrusted  with  the  bill  of 
lading,  custom-house  permit,  or 
warehouseman's  receipt,  or  (in 
Massachusetts,  Maine,  Rhode  Island, 
New  York,  Pennsylvania,  Ohio, Wis- 
consin, and  Kentucky)  who  has  pos- 
session of  any  merchandise  for  the 
purpose  of  sale,  or  (in  New  York. 
Ohio  or  Wisconsin)  as  a  security  for 
advances  to  be  made  or  obtained 
thereon,  without  documentary  evi- 
dence of  title,  is  deemed  the  true 
owner  thereof  so  far  as  to  give  valid- 
ity to  any  contract  made  by  him  with 
any  third  person  for  the  sale,  pledge 
(except  in  Massachusetts,  Maine  and 
Kentucky),  or  disposition  of  such 
merchandise,    or    for    any     money 


advanced  or  negotiable  instrument, 
or  other  written  obligation,  given  by 
such  person  upon  the  faith  thereof, 
and  notwithstanding  (except  in 
Maine,  Rhode  Island,  New  York, 
Pennsylvania,  Ohio,  Maryland,  and 
Kentucky)  that  such  person  has 
notice  that  the  consignee  is  an  agent 
or  factor.     »    «    *    ♦ 

But  such  loan  or  advance  must  be 
made  in  good  faith,  and  (1)  with 
probable  cause  to  believe  that  the 
agent  had  authority  to  make  such 
loan  or  pledge,  and  was  not  acting 
fraudulently  against  the  owner: 
Mass. ;  (2)  with  no  notice  that  such 
agent  &c.  was  not  the  owner:  R  I. 

*  •  *  And  in  two  states,  any 
person  may  contract  with  any  agent 
or  factor  intrusted  with  the  goods, 
or  the  consignee,  for  the  purchase 
thereof,  and  may  receive  the  same, 
and  pay  for  them;  and  such  contract 
or  payment  shall  be  good  against  the 
owner,  if  made  in  the  usual  course  of 
business,and  the  person  had  no  notice 
that  the  agent  was  not  authorized  to 
sell  the  goods  and  receive  the  pur- 
chase money,  notwithstanding  he 
had  notice  that  the  other  was  an 
agent  or  factor.     R.  I.,  Md. " 


821 


§996. 


THE   LAW    OF    AGENCY. 


[Book  V. 


pledgeeB,  and  gives  the  latter  a  better  title  than  their  vendor  or 
pledgor  had.* 

§  996.  To  pay  his  own  Debts-  For  reasons  similar  to  those 
which  deny  his  power  to  pledge,  the  factor,  except  where  the 
statute  is  broad  enough  to  authorize  it,"  cannot  confer  title, 
even  upon  a  bona  Jide  holder,  by  turning  out  the  principal's 
goods  in  payment  of  his  own  debts,^  even  though  the  accounts 


«  Howland  «,  Woodruff,  60  N.  Y. 
73;  Stevens  ».  Wilson,  6  Hill  (N.  Y.) 
612,  B.C.  in  error,  3  Denio(N.  Y.)472. 

In  New  York,  in  order  to  estop 
the  owner  wiiere  the  factor  has  not 
the  documentary  evidence  of  title, 
actual  possession  of  the  goods  is  re- 
quired, and  constructive  possession 
will  not  suffice.  Howland  v.  Wood- 
nifl,  supra;  Bonita  «.  Mosquera,  2 
Bosw.  (N.  Y.)  401;  Stevens  c. Wilson, 
tupra.  See  also  Brooks  e.  Hanover 
Bank,  26  Fed.  Rep.  801;  Covell  e. 
Hill,  6  N.  Y.  374;  Dows  v.  Greene, 
24  N.  Y.  638;  Cartwright  v.  Wil- 
merding,  24  N.  Y.  521;  First  Na- 
tional Bank  v.  Shaw,  61  N.  Y.  283. 

In  Missouri,  see  Erie  &c.  Co.  v.  St. 
Louis  Co.,  6  Mo.  App.  172;  Fourth 
Nat.  Bank  v.  St.  Louis  Co.  11  Mo. 
App.  338;  Allen  v.  8l  Louis  Bank, 
120  U.  S.  20. 

In  California  see  Wisp  v.  Hazzard, 
66  Cal.  459. 

In  Pennsylvania  see  Mackey  v. 
Dillenger,  73  Penn.  St.  85. 

In  Georgia,  see  National  Exchange 
Bank  ti.Graniteville  Mnfg  Co. — Ga. — 
8  South  E.  Rep.  411. 

In  Wisconsin,  see  Price  e.  Wiscon- 
sin Ins.  Co.,  43  Wis.  267;  Victor 
Sewing  Machine  Co.  v.  Heller,  44 
Wis.  265. 

*  That  the  ordinary  Factor's  Acts 
are  not  broad  enough  to  justify  this, 
see  Warner  v.  Martin,  11  How.  (U. 
S.J  209;  Victor  Sewing  Machine  Co. 
e.  Heller,  44  Wis.  265. 

But  in  California  see  Davis  v.  Rus- 
sell, 52  Cal  611. 


»  Benny  v.  Rodes,  18  Mo.  147,  59 
Am.  Dec.  293;  Benny  «.  Pegram,  18 
Mo.  191;  59  Am.  Dec.  298;  Holton  e. 
Smith,  7  N.  H.  446;  Warner  v.  Mar- 
tin, 11  How.  (U.  S.)  209. 

It  is  no  answer  to  this  rule  to  say 
that  the  factor  might  have  sold  the 
goods,  and  received  and  squandered 
the  money,  thus  passing  the  title  and 
leaving  the  principal  with  no  remedy, 
except  against  the  factor.  "  It  has 
been  supposed,"  says  Mr.  Justice 
Wathe  of  the  Supreme  Court  of  the 
United  States,  "  that  the  right  of  a 
factor  to  sell  the  merchandise  of  his 
principal  to  his  own  creditor,  in  pay- 
ment of  an  antecedent  debt,  finds  its 
sanction  in  the  fact  of  the  creditor's  be- 
lief that  his  debtor  is  the  owner  of  the 
merchandise,  and  his  ignorance  that 
it  belongs  to  another,  and  if  in  the 
last,  he  has  been  deceived,  that  the 
person  by  whom  the  delinquent  fac- 
tor has  been  trusted  shall  be  the  loser. 
The  principle  does  not  cover  the  case. 
When  a  contract  is  proposed  between 
factors,  or  between  a  factor  and  any 
other  creditor,  to  pass  property  for 
an  antecedent  debt,  it  is  not  a  sale  in 
the  legal  sense  of  that  word  or  in  any 
sense  in  which  it  is  used  in  reference 
to  the  commission  which  a  factor  has 
to  sell.  Williamson  v.  Berry,8  How. 
495.  It  is  not  according  to  the  usage 
of  trade.  It  is  a  naked  transfer  of 
property  in  payment  of  a  debt. 
Money,  it  is  true,  is  the  consideration 
of  such  a  transfer,  but  no  money 
passes  between  the  contracting  parties. 
The  creditor  pays  none,  and  when  the 


822 


Chap.  lY.] 


FA0T0B8. 


§998. 


between   the  principal  and  the  factor  may  be  in  the  factor's 
favor.* 

§  997.  To  barter  or  exchange.  A  factor  is,  ordinarily,  era- 
ployed  to  sell  goods,  and  like  other  agents  similarly  empowered, 
ho  has  no  implied  authority  to  barter  or  exchange  them,  and  such 
a  transaction  does  not  divest  the  principal  of  his  title.* 

§  998.  To  delegate  his  Authority.  A  factor  is  employed 
because  trust  and  confidence  are  reposed  in  his  ability  and  integ- 
rity, and  the  execution  of  this  trust  and  confidence  can  not,  in 
general,  be  delegated  to  another.*  Exceptions  to  this  rule  exist, 
as  in  other  cases  of  agency,  where  the  employment  of  a  sub- 
agent  is  justified  by  a  usage  of  trade,*  or  an  established  course  of 


debtor  has  given  to  him  the  property 
of  another  in  release  of  hisobligation, 
their  relation  has  only  been  changed 
by  his  violation  of  an  agency  which 
society,  in  its  business  relations,  can- 
not do  without,  which  every  man 
has  a  right  to  use,  and  which  every 
porson  undertaking  it  promises  to 
discharge  with  unbroken  fidelity. 
When  such  a  transfer  of  property  is 
made  by  a  factor  for  his  debt,  it  is  a 
departure  from  the  usage  of  trade, 
known  as  well  by  the  creditor  as 
it  is  by  the  factor.  It  is  more; 
it  is  the  violation  of  all  that  a 
factor  contracts  to  do  with  the  prop- 
erty of  his  principal.  It  has  been 
given  to  him  to  sell.  He  may  sell  for 
cash  ,  or  he  may  do  so  upon  credit, 
as  may  be  the  usage  of  trade.  A 
transfer  for  an  antecedent  debt  is  not 
doing  one  thing  or  the  other.  Both 
creditor  and  debtor  know  it  to 
be  neither.  That  their  dealing 
for  such  a  purpose  will  be  a  trans- 
action out  of  the  usage  of  the  business 
of  a  factor.  It  does  not  matter  that 
the  creditor  may  not  know,  when  he 
takes  the  property,  that  the  factor's 
principal  owns  it;  that  he  believed  it 
to  be  the  factor's  in  good  faith."  In 
Warner  ».  Martin,  11  How.  (U.  S.) 
209. 


"  Benny  v.  Pegram,  18  Mo.  191.  59 
Am.    Dec.  298. 

«  Gurreiro  ®.  Peile,  3  B.  &  Aid.  616. 
See  also  Trudo  t).  Anderson,  10  Mich. 
357,  81  Am.  Dec.  795;  Kent  b.  Born- 
stein,  12  Allen  (Mass.)  342;  Lumpkin 
c,  Wilson,  5  Heisk.  (Tenn.)  555; 
Wheeler  &  Wilson  Mnfg  Co.  n. 
Givan,  65  Mo.  89;  Wing  e.  Neal,  — 
Me.  — ,  2  Atl.  Rep.  881. 

As  to  power  of  factor  to  barter 
under  Factor's  Acts,  see  Victor  Sew- 
ing Machine  Co.  v.  Heller,  44  Wis. 
265. 

3  Warner  «.  Martin,  11  How.  (U.  S.) 
209;  Catlin  v.  Bell,  4  Camp.  183; 
Cockran  t.  Irlam,  2  M.  «&  S  301; 
Solly  V.  Rathboue,  Id.  298;  Schmal- 
ing  V.  Thomlinson,  6  Taunt.  147; 
Loomis  '0.  Simpson,  13  Iowa,  5:32; 
Campbell  v.  Reeves,  3  Head.  (Tenn.) 
226;  Merchants'  Nat.  Bank  «.  Tren- 
holm,  12  Heisk.  (Tenn.)  520;  Smith  v. 
Sublett,  28  Tex.  163;  Connor  v.  Par- 
ker, 114  Mass.  o31;  Furnas  v.  Frank 
man,  6  Neb.  429;  Gillis  v.  Bailey,  21 
N.  H.  149;  Locke's  Appeal,  72  Penn. 
St.  491;  Harralson  ®.  Stein,  50  Ala. 
347. 

*  Trueman  v,  Loder,  11  Ad.  &  El. 
589;  Warner  ».  Martin,  11  How. 
(U.  S.)  209. 


823 


§  999.  THE   LAW    OF   AGBNOT.  [Book   Y. 

dealing, '  or  where  it  is  required  by  the  necessities  of  the  trans- 
action.* 

§  999.  To  compromise  the  Debt.  So  a  factor  who  has  sold 
goods  for  his  principal  has  no  implied  authority  to  compromise 
or  compound  the  claim  for  the  purchase  price,  or  to  discharge 
the  debt  upon  the  receipt  of  a  part  only.' 

§  1000.  To  submit  to  Arbitration.  So  a  factor  has  no  im- 
plied authority  to  submit  to  arbitration  a  dispute  arising  out 
of  the  transaction,  as  a  claim  for  damages  on  account  of  an 
alleged  breach  of  an  implied  warranty  of  the  quality  of  the 
goods  sold.* 

§  1001.  To  rescind  Sale.  A  factor  who  has  completed  a  sale 
for  his  principal  has,  thereafter,  no  implied  power  to  rescind  the 
sale,  or  discharge  the  purchaser  from  its  obligations." 

§  1002.  To  extend  Time  of  Payment.  So  having  sold  the 
goods  upon  a  credit,  his  undertaking  is  executed,  and  he  has  ordi- 
narily no  implied  authority  to  extend  the  time  of  payment.' 

§  1003.  To  receive  anything  but  Money  in  Payment;  Nor 
has  the  factor  implied  authority  to  receive  in  payment  anything 
but  money,  and  the  money  must  be  that  which  is  then  circulating 
at  par.^  He  cannot  receive  payment  in  goods  or  depreciated 
bills  or  in  any  other  unusual  or  irregular  manner.' 

§  1004.  To  make  negotiable  Paper.  Nor  has  the  factor  im- 
plied authority  to  bind  his  principal  by  making,  accepting  or 
indorsing  negotiable  paper.' 

§  1005.  To  insure  Property.  A  factor  having  goods  of  his 
principal  in  his  possession  may  insure  them,  but  he  is  not  bound 
to  do  so  in  the  absence  of  instructions  to  insure,  or  of  an  usage 

»  Blore   V.    Sutton,    8  Meriv.  237;  »  Smith  v.  Rice,  1  Bailey  (8.  C.)648. 

Combes'  Case,  9  Coke,  75;  Warner  e.  «  Douglass  t».     Bernard,    Anthon's 

Martin,  supra.  N.  P.  278. 

'  See  McMorris  v.  Simpson,  21  Wend,  '  See  ante,  §  375. 

(N.Y.)610.    See  also  Johnson  u  Cun-  •Underwood  t.  NichoUs,  17  C.  B. 

ningham,  1  Ala.  249;  Dorchester,  &c.  239;  Sangston  v.    Maitland,  11  Gill  & 

I'-rmk  V.  New  Englanu  Bank,  1  Cush.  J.  (Md.)  286. 

(Mass.)  177;  Planters',   &c.  Bank  v.  »  Hogg    v.    Snaith,    1   Taunt.    347; 

First  Nat.  Bank,  75  N.  C.  534.  Murray  v.   East  India  Co.,  5   B.   & 

8  Russell,  Merc.  Ag.  48.     See  ante.  Aid.    204;    Emerson    v.    Providence 

§376.  Mnfg.  Co.,  12  Mass.  237,  7  Am.  Dec. 

*  Camochan  e.  Gould,  1  Bailey  (8.  66. 
Car.)  L.  179,  19  Am.  Dec.  668. 

824 


Chap.  rV.]  FACT0B8.  §  10(i7. 

to  that  effect,  or  unless  the  habit  and  course  of  dealing  between 
himself  and  his  principal  imposes  the  dutj'upon  him.'  He  may 
effect  the  insurance  in  his  own  name,'  and  to  the  full  value  of 
the  goods.* 

IV. 

DUTIES   AND   LIABILITIES   TO    PRINCIPAL. 

§  1006.  To  use  reasonable  Care  and  Prudence.  Like  other 
persons  who  hold  themselves  out  to  the  public  as  specialists  in 
any  department  of  business,  the  factor  is  bound  to  possess  a  rea- 
sonable degree  of  skill  and  knowledge,  and  to  exercise  that  skill 
and  knowledge  with  reasonable  care  and  prudence.  In  this 
respect  his  undertaking  is  similar  to  that  of  the  attorney.  The 
factor  does  not  undertake  for  infallibility,  or  the  highest  degree 
of  judgment,  discretion,  skill  or  diligence,  but  he  does  undertake 
for  that  degree  which  an  ordinarily  discreet,  prudent  and  dili- 
gent man  would  exercise  in  his  own  business  under  like  circum- 
stances. Exercising  that,  he  is  not  liable,  unless  he  has  expressly 
contracted  for  more ;  but  if  he  exercises  less  than  that,  and  loss 
ensues  therefrom,  he  will  be  liable  for  it.* 

§  1007.  To  act  in  good  Faith.  Like  other  agents  in  whom 
trust  and  confidence  are  reposed,  the  factor  owes  to  his  principal 
a  high  degree  of  fidelity  and  good  faith.  Unless  the  principal 
expressly  consents  to  receive  less,  he  has  a  right  to  demand  from 
the  factor  an  undivided  allegiance  to  his  interests,  and  the  factor 
will  not  be  permitted  to  put  himself  in  such  a  position  that  his 

>  Lucena«.  Craufurd,  2  B.  «fe  P.  N.  Greenl.  (Me.)  400,   23  Am.  Dec.  522; 

R.  269;  De  Forest  v.  Fulton  Fire  Ins.  Phillips  v.  Moir,  69  III.  155;  Chandler 

Co.,  1   Hall    (N.    Y.)  84:  Waters  v.  v.  Hogle,  58111.46;  Deshler  «.  Beers, 

Monarch,    «S;c.  Ins.    Co.,   5  El.  &  Bl.  32  111.  368,  83  Am.  Dec.  274;  Ernest  v. 

870;  Brisban  v.  Boyd,  4  Paige  (N.  Y.)  Stoller,  6  Dill.  (U.  8.  C.  C.)  438;  At- 

17;    Schaeffer    v.    Kirk,   49  111.  251;  kinson  v.   Burton,  4  Bush  (I\y  )  299; 

Shocnfeld    v.    Fleisher,    73  111,   404;  McCants  v.  Wells.  3  S.  C.  569. 
Area  v.  Milliken,  35  La.  Ann.  1150.  In  Foster  v.    Waller,  75  111.  464,  it 

«  Brisban  v.  Boyd,  supra.  is  said  that  a  factor  is  bound  to  exor- 

' Brisban  v.  Boyd,  supra.  cise  a  "high  degree  of  diligence"  in 

*  Van  Alen  ».  Vanderpool,  6  Johns.  ascertaining  the  pecuniary  responsi- 

(N.  Y.)69,  5  Am.  Dec.  192;  Greely  bility    of   a    customer    to  whom  he 

V.   Bartlett,   1  Greenl.   (Me.)   172,  10  makes  a  sale  on  change. 
Am.    Dec.    54;  Folsom  v.  Mussey,  8 

825 


§  1008.  THE  LAW  OF  AGENCY.  [Book  V. 

own  interests,  or  tbose  of  another  client,  will  come   in  conflict 
with  those  of  his  principal.' 

Without  the  principal's  full  knowledge  and  consent,  therefore, 
the  factor  can  not  represent  both  parties  in  the  same  transaction,* 
nor  can  he  be  himself  the  other  party  as  by  buying  of,  or  selling 
to,  himself.*  If,  however,  the  principal  consents,  no  other  person 
has  occasion  to  complain,  and  such  consent  may  be  evidenced  as 
well  by  a  subsequent  ratification  as  by  a  prior  authorization.* 

§  1008.  To  obey  Instructions.  It  is,  in  general,  the  duty  of 
the  factor  to  obey  the  instructions  of  his  principal.  To  the  lat- 
ter belong  the  goods,  and  the  profits  and  advantages  to  be 
derived  from  their  sale,  and  in  him,  therefore,  is  vested  the  power 
to  direct  and  control  the  time,  manner  and  terms  of  their  sale. 
Exceptions  to  this  general  rule  exist  where  the  factor,  by  making 
advances  on  them,  has  acquired  a  special  property  in  the  goods,* 
and  also,  as  in  other  cases,  where  a  sudden  emergency  requires  a 
deviation  from  the  course  prescribed.'  But  where  no  one  of 
these  exceptions  exists,  the  factor  disregards  his  instructions  at  his 
peril,  and  if  a  loss  ensues,  he  is  liable  for  it'  That  he  acted  in 
good  faith  and  with  an  intention  to  benefit  his  principal,  or  tliat 
he  pursued  the  customary  course  in  such  cases,  will  not  excuse  a 
violation  of  express  instructions." 

But  here,  too,  as  in  other  cases,  the  principal  who  wishes  his 
instructions  obeyed  must  couch  them  in  unambiguous  terms,  for 
if  they  are  capable  of   two  constructions  and  the  factor  in  good 

'  Clarke  v.   Tipping,  9  Beav.  384;  Johns.  (N.  Y.)  Ch.  394;  Courcier  ^. 

Evans  v.  Potter,  2  Gall.  (U.  S.  C.  C.)  Ritter,    4  Wash.   (U.   S.  C.  C.)  549* 

l3;Babcock  v.    Orbison,  25   Ind.  75;  Bell  v.   Palmer,  6  Cow.  (N.  Y.)  128; 

Keighler  v.  Savage  Mufg  Co.,  12  Md.  Evaus  v.  Root,  7  N.  Y.    186,  57  Am. 

883,  71  Am.  Dec.  600.  Dec.  512;  Williams  v.    Littlefield,  13 

2  Bensley  ti.  Moon,  7  111.  App.  415.  Wend.  (N.  Y.)  362;   Scott  v.  Rogers, 

'Keighler  v.  Savage  Mnfg  Co.,  12  31  N.    Y.    676;  Weed  ».  Adams,  37 

Md.  38o,  71  Am.  Dec.  600.  Conn.  378;  Johnson©.  Wade,  2  Baxt. 

*  Thus  the  principal  may  elect  to  (Tenn.)  480;  Strong  v.  Stewart,  9 
treat  the  sale  to  the  factor  as  valid  Heisk.  (Tenn.)  137;  Day  o.  Crawford, 
and  maintain  an  action  against  him  13  Ga.  508;  De  Tastett  v.  Crousillai,  2 
for  the  purchase  price.  Wadsworth  Wash.  (U.  S.  C.  C.)  132;  Shoenfeid  v. 
V.  Gay,  118  Mass.  44.  Fleisher,  73  111.  404;  Blot  v.  Boiceau, 

«  See  following  section.  S  N.  Y.  78,  51  Am.  Dec.  345;  Housel 

•  See  ante,  §  481.  e.  Thrall,  18  Neb.  484. 

T  Bundle  V.  Moore,  3  Johns.  (N.  T.)         •  Hatcher  v.  Comer,  73  Ga.  418. 
(!as.    36;    Parkist    v.    Alexander,    1 

826 


Chap.  IV.]  FA0TOE8.  §  1'»<'9. 

faith  and  in  the  exercise  of  reasonable  care  and  prudence  selects 
and  follows  one,  he  can  not  be  held  liable  because  the  principal, 
in  fact,  intended  that  the  other  should  be  pursued,' 

Where  goods  are  consigned  to  a  factor  to  be  sold  upon  certain 
terras,  his  acceptance  of  the  consignment  without  dissent  is  suf- 
ficient evidence  of  his  consent  to  be  bound  bj  the  instructions 
given 

A  violation  of  instructions,  however,  may  in  this  as  in  other 
cases  be  ratified  bj  the  principal,  and  the  factor  be  thus  relieved 
from  liability.' 

The  damages  for  which  the  factor,  who  has  disobeyed  instruc- 
tions, would  be  responsible,  must  be  such  as  are  the  natural  and 
proximate  result  of  his  disobedience.  Thus  where  cotton,  which 
had  been  consigned  to  factors  with  general  instructions  to  sell, 
was  destroyed  by  an  accidental  fire  within  a  reasonable  time  after 
the  receipt  of  the  instructions,  the  factors'  delay  was  held  not  to 
be  the  proximate  cause  of  the  loss.' 

§  1009.  Same  Subject— Instructions  to  sell.  These  principles 
are  of  frequent  application  to  questions  arising  from  a  violation 
of  instructions  as  to  the  time  or  price  at  which  the  goods  shall 
be  sold.  Tliese  instructions  it  is  the  factor's  general  duty  to  obey, 
and  if  a  loss  occurs  because  of  his  unjustifiable  violation  of  them, 
he  will  be  liable  for  it.  Thus  if  the  factor  be  instructed  to  sell  the 
goods  at  a  certain  time,  as  upon  arrival,*  or  immediately,*  or  wlien 
they  reach  a  certain  price,  he  violates  the  instructions  at  \iU. 
peril,'  and  neither  usage,  nor  a  honajide  intention  to  benefit  his 

>  See  ante,  §  484.  to  sell  and  who  has  not  sold  within  a 

2  Rice  1).  Brook,  20  Fed.  Rep.  611;  reasonable  lime,  is  not  liable  for  the 

Faries  v.  Ranger,  35  La.  Ann.  102.  value  of  the  goods    which    are  de- 

s  Lehman  v.    Pritchett,  —  Ala.  — ,  stroyed  by  an  accidental   fire.     His 

27  Cent.  L.  Jour.  380,  4  South.  Rep.  default  is  not  the  natural  and  proxi- 

601_  male  cause  of  the  loss.     Lehman  v. 

♦  An  instruction  accompanying  the  Pritchett,  —  Ala.  — ,  4   South.  Rep. 

bill  of  lading  to  "please  sell  on  ar-  601,  27  Cent.  L.  J.  380. 

rival"  is  an  explicit  instruction,  and  «  Casson  v.  Field,  62  N.  Y.  Super, 

if  the  factor  disregards  it  he  is  liable  Ct.  196. 

for  a  loss  sustained  through  a  fall  in  A  factor  who  is  instructed  to  sell 

prices.     Evans  v.  Root,  7  N.  Y.  186,  the  whole  shipment  at  a  certain  rate 

57  Am.  Dec.  512.  is  not  authorized  to  sell  parts  only, 

s  Weed  v.    Adams,    37  Conn.  378;  either  at  or    above    that  rate.     His 

Howland  v.  Davis,  40  Mich.  515.  duty  is  to  sell  in  one  lot,  or  at  least 

A  factor  who  has  been  instructed  so  as  to  realize  the  price  fixed,  for  the 


82 


§  1009. 


THE    LAW    OF    AGENCY. 


[Book  Y. 


principal,  will  excuse  him.'  So  if  he  is  directed  not  to  sell  below 
a  given  price,  and,  without  sufiBcient  reason,  sells  for  less  than 
the  price  limited,  he  will  be  liable  for  the  loss  incurred.' 

Factor's  right  to  sell  to  reimburse  himself.  The  fact  that 
the  factor  has  made  advances  upon  the  goods  will  not  alone 
warrant  him  in  selling  below  the  stipulated  price,*  but  where 
such  advances  have  been  made,  the  principal  cannot,  by  impos- 
ing an  arbitrary  price,  deprive  the  factor  of  his  protection,  and 
if  the  principal  neglect  or  refuse  to  repay  the  factor  within 
a  reasonable  time  after  a  demand  upon  him  for  repayment, 
the  factor  may  sell  sufiBcient  of  the  goods  to  reimburse  himself, 
even  though  it  be  for  less  than  the  price  fixed,*  or  before  the  time 
limited.*  But  having  sold  enough  to  protect  himself,  he  is  bound, 
as  to  the  residue,  to  observe  the  instructions  of  his  principal. • 

So  if,  after  the  factor  has  made  advances  upon  the  goods,  he  is 
directed  to  sell  at  a  price  or  at  a  time  which  will  manifestly,  or 
in  reasonable  probability,  operate  to  deprive  him  of  his  security, 
as  if  a  sale  at  the  price  or  time  fixed  will  yield  less  than  the 
amount  of  his  advances,  the  factor,  acting  in  good  faith  and  with 
reasonable  prudence,  may  refuse  to  obey  the  instructions  to  sell, 
without  liability.' 


whole  lot.  Levison  «.  Balfour,  84 
Fed.  Rep.  882. 

'  Halcher  v.  Comer,  78  Ga.  418. 

s  Blot  V.  Boiceau,  3  N.  Y.  78,  51 
Am.  Dec.  845;  Dalby  c.  Stearns,  182 
Mass.  230;  Weed  t.  Adams,  37  Conn. 
878;  Casson  v.  Field,  52  N.  Y.  Super. 
Ct,  196;  Frothingham  v.  Everton,  12 
N.  H.  239;  George  ■».  McNeill,  7  La. 
124,  26  Am.  Dec.  498. 

3  Blot  V.  Boiceau,  8  N.  Y.  78,  51 
Am.  Dec.  345;  George  e.  McNeill,  7 
La.  124,  26  Am.  Dec.  498. 

«  Marfleld  v.  Goodhue,  3  N.  Y.  62; 
Hilton  V.  Vanderbilt,  82  N.  Y.  591; 
Frothingham  v.  Everton,  12  N.  H. 
239;  Brown  «.  McGran,  14  Pet.  (U. 
S.)  479;  Parker  v.  Brancker,  22  Pick. 
(Mass.)  40;  Dalby  v.  Stearns,  132 
Mass.  230;  Butterfield  «.  Stephens,  59 
Iowa,  696;  Mooney  «.  Musser,  45 
Ind.  115. 


•  Davis  e.  Kobe,  36  Minn.  214,  1 
Am.  St.  Rep.  663,  30  N.  W.  Rep.  662. 

•  Weed  v.  Adams,  37  Conn.  378. 

"  There  can  be  no  doubt  of  the 
proposition  that  in  a  case  where  the 
protection  of  the  factor  himself 
against  loss  becomes  necessary,  his 
discretion  as  to  the  time,  price  and 
place  of  sale  would  be  complete  and 
unlimited  even  by  positive  instruc- 
tions." Phillips  ».  Scott,  43  Mo.  86, 
97  Am.  Dec.  369.  See  also  Beadles 
e.  Harlmus,  7  Baxt.  (Tenn.)  476;  Nel- 
son c.  Chicago,  &c.  R.  R.  Co. ,  2  111. 
App.  180. 

T  Weed  V.  Adams,  ««pra ;  Butterfield 
t>.  Stephens,  59  Iowa,  596;  Howlaad 
V.  Davis,  40  Mich.  545;  Blair  «. 
Childs,  10  Heisk.  (Tenn.)  199;  Brown 
v.  McGran,  14  Pet.  (U.  S.)  479;  Feild 
t).  Farrington,  10  Wall.  (U.  S.)  141; 
Lockett  V.  Baxter,  —  Wash.  Ter.  — , 
19  Pac.  Rep.  23. 


828 


Cliap.  IV.] 


FACTORS. 


§  1009. 


But  this  right  of  the  factor  to  sell  for  his  own  reimbursement 
may  be  waived,  and  it  will  not  exist  in  contravention  of  an 
express  agreement  to  the  contrary ;  as  where,  at  the  time  the 
advances  are  made,  the  factor  agrees,  or  receives  the  goods  sub- 
ject to  express  instructions,  to  sell  only  at  a  certain  time,  or  at  a 
fixed  price.' 

The  measure  of  damages  to   be  recovered   of,   or   recouped 


» In  Brown  v.  McGran,  14  Pet.  (TJ. 
S.)  479,  Judge  Story  says:  "We 
understand  the  true  doctrine  on  this 
subject  to  be  this:  Wherever  a  con- 
signment is  made  to  a  factor  for  sale, 
the  consignor  has  a  right,  generally 
to  control  the  sale  thereof,  according 
to  his  own  pleasure,  from  time  to 
time,  if  no  advances  have  been  made 
or  liabilities  incurred  on  account 
thereof;  and  the  factor  is  bound  to 
obey  his  orders.  This  arises  from 
the  ordinary  relation  of  principal  and 
agent.  If,  however,  the  factor  makes 
advances,  or  incurs  liabilities  on  ac- 
count of  the  consignment,  by  which 
he  acquires  a  special  property  there- 
in, then  the  factor  has  a  right  to  sell 
so  much  of  the  consignment  as  may 
be  necessary  to  reimburse  such  ad- 
vances or  meet  such  liabilities;  unless 
there  is  some  existing  agreement 
between  himself  and  the  consignor, 
which  controls  or  varies  this  right. 
Thus,  for  example,  if,  contempora- 
neous with  the  consignment  and  ad- 
vances or  liabilities,  there  are  orders 
given  by  the  consignor  which  are 
assented  to  by  the  factor,  that  the 
goods  shall  not  be  sold  until  a  fixed 
time,  in  such  a  case,  the  consignment 
is  presumed  to  be  received  by  the 
factor  subject  to  such  orders;  and  he 
is  not  at  liberty  to  sell  the  goods  to 
reimburse  his  advances  or  liabilities, 
until  after  that  time  has  elapsed.  The 
same  rule  will  apply  to  orders  not  to 
sell  below  a  fixed  price;  unless, 
indeed,  the  consignors  shall,  after 
due  notice    and    request,    refuse  to 

829 


provide  any  other  means  to  reimburse 
the  factors.  And  in  no  case  will  the 
factor  be  at  liberty  to  sell  the  con- 
signment contrary  to  the  orders  of 
the  consignors,  although  he  has  made 
advances  or  incurred  liabilities  there- 
on, if  the  consignor  stands  ready  and 
offers  to  reimburse  and  discharge 
such  advances  and  liabilities. 

On  the  other  hand,  where  the  con- 
signment is  made  generally,  without 
any  specific  orders  as  to  the  time  or 
mode  of  sale,  and  the  factor  makes 
advances  or  incurs  liabilities  on  the 
footing  of  such  consignment,  there 
the  legal  presumption  is  that  the 
factor  is  intended  to  be  clothed  with 
the  ordinary  rights  of  factors  to  sell 
in  the  exercise  of  a  sound  discretion, 
at  such  time  and  in  such  mode  as  the 
usage  of  trade  and  his  general  dutj' 
require;  and  to  reimburse  himself  for 
his  advances  and  liabilities  out  of  the 
proceeds  of  the  sale;  and  the  con- 
signor has  no  right,  by  any  subsequent 
orders,  given  after  advances  have 
been  made  or  liabilities  incurred  by 
the  factor,  to  suspend  or  control  this 
right  of  sale,  except  so  far  as  respects 
the  surplus  of  the  consignment,  not 
necessary  for  the  reimbursement  of 
such  advances  or  liabilities.  Of 
course,  this  right  of  the  factor  to  sell 
to  reimburse  himself  for  his  advances 
and  liabilities,  applies  with  stronger 
force  to  cases  where  the  consignor  is 
insolvent,  and  where,  therefore,  the 
consignment  constitutes  the  only  fund 
for  indemnity." 


§  1009. 


THE   LAW   OF   AGENCY. 


[Book  Y. 


against,  the  factor,  for  an  unlawful  violation  of  his  instructions 
as  to  sale,  is  the  amount  of  the  injury  actually  sustained  by  the 
principal,  if  any ;  otherwise  nominal  damages  only  are  recover- 
able/    Thus  if,  notwithstanding  the  factor  sold  for  less  than  the 


»  Dal  by  v.  Stearns,  132  Mass.  230; 
Frolhingham  «.  Everton,  12  N.  Ht 
239;  Blots.  Boiceau,  3  N.  Y,  78,  51 
Am.  Dec.  345;  Johnson  v.  Wade,  2 
Baxt.  (Tenn.)  480;  Hornsby  «.  Field- 
insr,  10  Heisk.  (Tenn.)  367;  Courcier 
t).  Ritter.  4  Wash.  (U.  S.  C.  C.)  649. 

In  Dalby  c.  Stearns,  supra,  Endi- 
COTT,  J.,  says:  "In  the  case  at  bar 
the  plaintifE  consigned  goods  to  the 
defendants  for  sale  at  a  limited  price. 
The  defendants  made  advances,  and 
afterwards  sold  the  goods,  without 
sufficient  notice  to  the  plaintiff  that 
they  intended  to  sell  them,  to  pay 
the  advances.  It  is  expressly  found, 
however,  that  the  goods  were  sold  in 
good  faith,  for  the  best  price  that 
could  be  obtained  for  them  at  the 
time  of  the  sale,  and  that  from  that 
time  to  the  date  of  the  writ,  their 
market  value  was  not  greater  than 
the  price  for  which  they  sold. 

The  only  question  before  us  is  as 
to  the  rule  of  damages.  The  plain- 
tiff contended  that  he  was  entitled 
to  recover  the  invoice  price  of  the 
goods,  less  the  amount  of  advances, 
returns,  discounts  and  commissions 
due  the  defendants  under  the  consign- 
ment. But  the  presiding  judge  ruled 
that  the  plaintiff  was  entitled  to 
recover  the  difference  between  the 
market  value  of  the  goods  when  sold 
and  the  prices  for  which  they  were 
sold  by  the  defendants,  less  the 
amount  of  advances,  returns,  dis- 
counts and  commissions  to  which  the 
defendants  were  entitled.  We  are 
of  opinion  that  this  ruling  was  right. 
The  plaintiff  is  entitled  only  to  in- 
demnity, and  the  fact  that  he  limited 
the  price  cannot  in  itself  increase  his 
damages. 


In  Prothingham  v.  Everton,  12  N. 
H.  239,  it  was  held  that,  if  a  factor 
sells  at  a  price  below  the  limit  with- 
out notice,  the  consignor  may  have 
an  action  on  the  case  to  recover  dam- 
ages, or  may  have  the  amount  of 
damages  allowed  in  a  suit  by  the  fac- 
tor to  recover  his  advances;  and  the 
iheasure  of  damages  in  such  case  is  the 
amount  of  the  injury  sustained  by 
the  sale,  contrary  to  the  orders  of 
the  principal.  That  case  closely  re- 
sembles the  case  at  bar,  and  is 
directly  in  point.  It  was  said  by 
Chief  Justice  Parker  in  delivering 
the  opinion:  'Had  these  goods  been 
destroyed  by  the  negligence  of  the 
plaintiffs,  they  would  have  been 
answerable  for  the  value,  and  the 
damages  could  not  have  been  ex- 
tended beyond  that,  merely  because 
the  defendant  had  ordered  them  to 
sell  at  a  certain  price,  and  not  for 
less.  If,  instead  of  a  loss  by  negli- 
gence, the  loss  be  by  a  disobedience 
of  orders,  without  fraud,  the  result 
must  be  the  same.'  13  N.  H.  243. 
In  either  case  the  damages  cannot 
exceed  the  amount  of  injury  sustained 
by  the  consignor.  The  case  of 
Frothingham  v.  Everton  is  cited  in 
Blot  V.  Boiceau,  3  Comst.  78,  with 
approval,  as  laying  down  the  sound 
and  proper  rule  upon  this  subject.  It 
was  there  held  that  where  a  factor 
sells  below  the  price  named  in  his 
instructions,  the  measure  of  damages 
is  only  the  amount  of  injury  actually 
sustained  by  the  consignor;  and  that  it 
was  competent  to  show,  in  reduction 
of  damages,  that  the  goods  were  sold 
at  their  full  market  value.  '  If  the 
market  price  of  such  goods  had  risen 
after  the  sale  made  by  the  defendants. 


830 


Chap.  ly.]  FACTORS.  §  1009. 

price  fixed,  he  yet  received  all  that  the  goods  were  worth,  the 
principal  would,  ordinarily,  be  litnited  to  nominal  damages 
only.'  If,  however,  within  a  reasonable  time  after  the  unauthor- 
ized sale,  the  value  of  the  property  increased,  the  difference 
bt'tween  the  price  received  and  that  which  might  have  been 
realized  would  furnish  the  measure  of  damages. 

The  period  during  which  the  principal  may  thus  have  the 
benefit  of  fluctuations  in  the  market,  has  been  the  subject  of 
much  controvers}'.  In  some  cases  it  has  been  held  that  the  high- 
est market  price,  which  was  reached  at  any  time  after  the  sale 
down  to  the  day  of  trial,  was  the  proper  standard."  But  this 
rule  is  so  obviously  nnjust,  giving  to  the  principal  not  only  the 
whole  period  allowed  by  statutes  of  limitation  for  the  commence- 
ment of  the  suit,  but  as  much  more  time  afterward  as  the  trial 
could  be  delayed, — a  period  far  beyond  any  originally  contem- 
plated by  the  parties, — that  it  has  been  quite  generally  disap- 
proved and  overruled,  and  the  true  rule  declared  to  be  that  the 
principal  is  entitled  to  the  highest  market  price  reached  between 
the  time  of  the  unauthorized  sale  and  a  reasonable  time  there- 
after in  which  to  begin  the  action.'  This  rule  necessarily  limits 
the  range  of  prices  to  a  period  prior  to  the  commencement  of 
the  action,  if  brought  within  a  reasonable  time ;  and,  if  unreason- 
ably delayed,  then  to  the  period  within  which  it  should  have 
been  brought,  and,  in   either  case,  it  excludes  prices  prevailing 

they  would  have  been  liable  to  pay  of  the  suit.      George  t>.   McNeill,  7 

according  to  such  increased  value.  La.  124,  26  Am.   Dec.   498.     Where 

A  factor  thus  selling  goods  in  viola-  there  is  evidence  of  the  value  of  the 

tion  of  his  instructions  takes  upon  goods  at  the  date  of  shipment  and  of 

himself  the  hazard  of  loss  from  the  a  subsequent  sale  at  that  rate,  it  will 

fluctuations  in  the  market  without  be  presumed,  in  the  absence  of  evi- 

ihe   possibility  of  gain;  and  this  is  dence  to  the  contrary,  that  the  same 

practically  a  suflBcient  security  against  price  could  have  been  obtained  in  the 

the  disobedience    of    his  principal's  interval.  Howland  v.  Davis,  40  Mich, 

order.  There  is  no  need  of  subjecting  545. 

him  to  a  higher  penalty.'    3  Comst.  *  Markham  v.   Jaudon,   41    N.   Y. 

85."  235;  Romaine  v.  VanAllen,  26  N.  Y. 

'  A  factor  with  orders  not  to  sell  309;  Burt  v.  Dutcher,  34  N.  Y.  493. 
below  a  certain  price  is  not  liable  for  '  Baker  r.  Drake,  53  N.  Y.  211,  13 
a  sale  at  a  lower  price,  where  a  Am.  Rep.  507;  Maynard  v.  Pease,  99 
higher  price  than  that  at  which  the  Mass.  555;  Sturges  v.  Keith,  57  DL 
sale  was  made  could  not  have  been  451, 11  Am.Rep.28;  "Whelan*.  Lynch, 
obtained  at  any  time  between  the  60  N.  Y.  469,  19  Am.  Rep.  202;  Gal- 
lime  of  sale  and  the  commencement  igher  v.  Jones,  129  U.  S.  192. 

831 


§  1010. 


THE    LAW    OF    AGENCY. 


[Book  V. 


after  the  commencement  of  the  action.'  If  he  is  directed  to 
sell  upon  a  certain  day,  he  will  be  liable,  in  case  of  a  neglect  to 
sell,  for  the  difference  between  the  price  on  that  day  and  the 
price  realized.* 

S  1010.  Same  Subject— Instructions  to  sell  for  Cash.  So  if 
the  factor  is  instructed  to  sell  for  cash  only,  he  sells  upon  credit 
at  the  peril  of  paying  for  the  goods  himself.*  A  sale  for  cash 
means  cash  upon  the  delivery  of  the  goods  and  a  sale  upon  a 
short  credit  cannot  be  justified  by  usage.* 

8  1011.  Same  Subject— Instructions  to  insure.  As  has  been 
seen,  a  factor,  in  the  absence  of  a  .custom,  promise  or  instruction 
to  insure,  is  not  bound  to  insure  the  goods  of  his  principal  in  the 
factor's  possession.' 

But  where  the  factor  is  instructed  or  has  agreed,  to  insure,  and 
neglects  to  do  so,  or  does  so  so  defectively  that  the  insurance 
is  of  no  avail,  he  is  liable  as  an  insurer.  By  neglecting  to  place 
the  risk  elsewhere  or  to  promptly  notify  the  principal  of  his 
inability  to  insure,  so  as  to  give  him  an  opportunity  to  do  so,  the 
factor  assumes  the  risk  himself.*  And  so  where  it  is  the  custom 
to  insure  under  like  circumstances,  the  factor  must  pursue  the 
custom  or  bear  the  loss.' 


>  Baker  «.  Drake,  supra, 

a  Fordyce  v.  Paper,  16  Fed.  Rep. 
516. 

8  Bliss  V.  Arnold,  8  Vt.  252,  30  Am, 
Dec.  467;  Hall  v.  Storrs,  7  Wis.  253. 

♦  Bliss  V.  Arnold,  supra;  Hall  v. 
Storrs,  supra;  Barksdale  v.  Brown,  1 
Nott.  &  McC.  (S.  C.)  517,  9  Am.  Dec. 
720;  Contra,  Clark  ».  Van  Northwick, 
1  Pick.  (Mass.)  343. 

6  See  ante,  §  1005. 

•  Gordon  v.  Wright,  29  La.  Ann. 
812;  Shoenfeld  o.  Fleislier,  73  111 
404;  De  Tastett  v.  Crousillat,  2  Wash 
(U.  S.  C.  C.)  132;  Parkins  v.  Washing 
ton  Ins.  Co.,  4  Cow.  (N.  Y.)  645 
Thorne  v.  Deas,  4  Johns.  (N.  Y.)  84 
Gray  v.  Murray,  3  Johns.  (N.  Y.)  Ch 
167;  Park  v.  Hamond,  4  Camp.  344 
Callander  1J.  Oelrichs,  5  Bing.  N.  C.  58 

A  letter  issued  by  factors  inviting 
consignments  and  stating  that  goods 


"will  be  covered  by  insurance  as 
soon  as  received  in  store,"  does 
not  import  that  tbey  are  to  be  person- 
ally liable  as  insurers,  and  their  duty 
is  performed  if  they  obtain  reason- 
able and  proper  insurance.  Johnson 
«.  Campbell,  120  Mass.  449. 

'  A  factor  who  has  been  in  the 
habit  of  insuring  his  principal's 
goods,  will  be  liable  for  omitting  to 
do  so,  without  giving  the  principal 
notice  of  the  omission.  Area  v.  Milli- 
ken,  85  La.  Ann.  1150. 

Where  consignees  had  been  accus- 
tomed to  insure  the  property  of  the 
consignor  only  when  ordered  to  do  so 
by  letter,  a  promise  by  an  agent  of 
the  consignees  to  write  to  them  to 
obtain  insurance,  which  he  failed  to 
do,  does  not  render  the  consignees 
liable  for  not  insuring.  Randolph  d. 
Ware,  3  Cranch.  (U.  S.)  503. 


832 


Chap.  IV.]  FACTORS.  §  1013. 

§  1012.  Duty  to  inform  Principal.  It  is  tlie  duty  of  the  fac- 
tor to  inform  his  principal  of  every  fact  in  relation  to  his  agency 
which  comes  to  his  knowledge,  and  which  it  may  be  important 
for  the  principal  to  know  in  order  to  the  protection  or  promotion 
of  his  interests,  and  a  factor  who  negligently  omits  to  give  such 
information  will  be  liable  for  a  resultinpf  loss.' 

Thus  if  he  has  been  instructed  to  insure  his  principal's  goods 
and  is  unable  to  do  so,  he  should  at  once  give  his  principal  notice 
of  this  fact  that  the  latter  may  effect  the  insurance ;  *  if  he  has 
been  in  the  habit  of  insuring  and  determines  no  longer  to  do  so, 
he  should  advise  his  principal  of  his  determination ;«  if  the  goods 
of  his  principal  in  his  possession  are  seized  by  attachment  or 
otherwise,  he  should  give  his  principal  notice  of  this  fact;*  if 
having  sold  goods  upon  credit,  the  purchaser  does  not  pay  when 
due,  the  factor  must  inform  his  principal  within  a  reasonable 
time  or  he  will  be  held  to  have  assumed  the  debt*  These  and 
many  other  cases  afford  illustrations  of  the  scope  of  this  duty. 

§  1013.  Duty  to  sell  only  to  responsible  Purchaser.  It  is  the 
duty  of  the  factor,  even  in  the  absence  of  any  instructions,  to 
exercise  reasonable  care  and  prudence  in  selling  only  to  respon- 
sible parties,  and,  if  he  neglects  to  do  so,  he  will  be  liable  for  a 
loss  that  may  ensue  ;  but  he  is  not  ordinarily  a  guarantor  of  pay- 
ments, and  if,  having  exercised  due  diligence,  a  loss  occurs,  the 
principal  must  bear  it,  and  not  the  factor.*     He  may,  however, 

>  Harvey      v.     Turner,     4    Rawle  « Callander  v.  Oelrichs,  5  Bing,  N. 

(Penn.)    223;    Arrott    v.    Brown,    6  C.  58;  Smith  c.  Lascelles,  2  T.  R.  187. 

Whart.    (Peun.)    9;   Devall    v.    Bur-  » Area    v.    Milliken,    35   La.  Ann. 

bridge,  4  Watts  &  8erg.  (Penn.)  305;  1150. 

Moore    v.  Thompson,  9    Phila.  164;  *  Moore «.  Thompson,  ««pm/ Devall 

Howe  V.    Sutherland.    39   Iowa  484;  v.  Burbridge,  supra. 

Greely  v.  Bartlett.  1  Greenl.  (Me.)  172,  s  Harvey  v.  Turner,  supra;  Arrott  c. 

10  Am.  Dec.  54;  Railey  v.  Porter,  32  Brown,  supra. 

jMo.  471,  82  Am.  Dec.  141.  A  factor  «  The  rule  upon  this  subject  is  well 
v*ho  sells  goods  to  parties  who  were  stated  by  Mellen,  C.  J.,  as  follows: 
creating  and  running  a  "  corner"  in  "By  the  law  merchant,  a  factor  may 
such  goods,  which  to  be  successful  sell  the  goods  of  his  principal  on  a 
must  be  maintained  for  at  least  reasonable  credit,  unless  he  is  res- 
thirty-two  days,  without  requiring  a  trained  from  so  doing,  either  by  his 
margin,  and  without  informing  his  instructions  or  by  the  usage  of  the 
principal  of  the  parties  to  whom  he  trade  to  which  the  transaction  relates, 
sold,  or  of  what  they  were  doing,  or  A  sale  made  under  such  circum- 
of  his  right  to  demand  a  margin,  is  stances  is  at  the  risk  of  the  principal, 
negligent.    Howe  a.  Sutherland,  supra.  and  if  a  loss  happens,  he  must  bear  it. 

53  833 


§1014. 


THE   LAW   OF    AQENOY. 


[Book  Y. 


make  hiraBelf  a  guarantor  by  an  express  agreement.  One  form 
of  such  an  undertaking  is  that  of  the  factor  who  sells  upon  a 
del  credere  commission.'  Another  is  that,  now  common,  of  a 
factor  who  is  authorized  to  sell  on  credit,  but  who  agrees,  or  is 
instructed,  that  he  will  sell  only  to  persons  of  known  responsibil- 
ity, or  only  upon  securities  of  undoubted  collectibility.  The 
extent  of  the  undertaking  in  these  cases  depends,  of  course,  upon 
the  language  used  in  each  particular  case,  but  under  such  instruc- 
tions or  agreements  as  those  named,  the  factor  stands  ordinarily 
in  the  position  of  a  guarantor.' 

§  1014r.  Same  Subject— Del  Credere  Commission.  A  factor  is 
said  to  act  under  a  del  credere  commission  when,  in  considera- 
tion of  an  additional  commission,  he  guarantees  the  payment  to 
the  principal  of  debts  that  become  due  through  his  agency.  The 
nature  and  extent  of  his  obligation  have  been  much  disputed,  the 
later  English'  and  some  American*  cases  holding  that  he  is  liable 


But  he  is  not  authorized  to  give 
credit,  except  to  such  persons  as  pru- 
dent people  would  trust  with  their 
own  property.  He  may  receive 
securities  in  his  own  name  for  goods 
sold,  without  subjecting  himself  to 
liability  merely  by  so  doing.  But  he 
must  deliver  such  securities  to  his 
principal,  if  he  demand  them,  or,  in 
case  of  loss,  he  will  be  answerable  as 
for  a  breach  of  trust,  though  in  such 
case  the  principal  should  pay  him  his 
usual  commissions. 

If  through  carelessness  or  want  of 
proper  examination  and  inquiry,  he 
give  credit  to  a  man  who  is  insolvent, 
should  a  loss  happen,  he  must  indem- 
nify the  principal.  And  if  a  debt  be 
lost  by  the  inattention  of  the  factor 
la  omitting  to  collect  it  when  in  his 
power  to  do  so,  he  will  be  liable  for 
it.  He  must  be  honest  and  faithful, 
and  must  give  his  principal  all  neces- 
sary or  useful  information  respecting 
the  concerns  of  his  agency."  In 
Greely  t).  Bartlett,  1  Greenl.  (Me.) 
172,  10  Am.  Dec.  54. 

In  Housel  v.  Thrall,  18  Neb.  484, 


an  instruction  to  a  jury  "that  a 
factor  or  commission  man,  while  he 
cannot  be  held  as  a  guarantor  of  the 
responsibility  of  the  persons  to  whom 
he  sells  in  the  ordinary  course  of 
business,  and  in  accordance  with  the 
usages  of  the  market  where  the  sale 
takes  place,  must,  nevertheless,  use 
all  reasonable  effort  and  resort  to  all 
reasonably  available  sources  of  infor- 
mation, to  learn  the  pecuniary  liabil- 
ity of  the  purchaser,  and  if  he  does 
not  do  so,  and  any  loss  occurs  by 
reason  thereof,  he  will  be  liable  for 
such  loss,"  was  held  to  be  a  correct 
statement  of  the  rule.  See  also  Fos- 
ter V.  "Waller,  75  111.  464;  Pinkham  v. 
Crocker,  77  Me.  563. 

«  See  following  section. 

«  Clark  ®.  Ilobetts,  26  Mich.  506. 

»  Morris  v.  Cleasby,  4  M.  &  S.  566; 
Hornby  v.  Lacy,  6M.  &  S.  166;  Cou- 
turier V.  Haslie,  8  Exch.  40. 

The  earlier  cases  were  contra; 
Grove  V.  Dubois,  IT.  R  113;  Bize  v. 
Dickason,  Id,  285. 

4  Thompson  v.  Perkins,  3  Mason 
(U.  S.  C.  C.)  232. 


834 


Chap.  IV.] 


FACTORS. 


1014. 


as  a  surety  merely ;  but  the  weight  of  authority  in  the  United 
States  is  undoubtedly  in  support  of  tlie  rule  that  a  factor  who 
sells  under  a  del  credere  corainission  is  liable  absolutely  as  a  prin- 
cipal, and  that  if  the  debt  be  not  paid  when  due,  indebitatus 
assumpsit  will  lie  against  him  at  once  for  the  amount.*  As  such 
principal  debtor,  his  contract  is  not  within  the  statute  of  frauds 
as  a  promise  to  answer  for  the  debt,  default  or  miscarriage  of 
another.'  But  where  the  goods  are  sold  upon  an  authorized 
credit,  the  factor  cannot  be  required,  because  of  a  del  credere 
commission,  to  account  to  the  principal  before  the  expiration  of 
the  credit  given  to  the  buyer.' 

A  factor,  acting  del  credere,  is  not  on  that  account  relieved 
from  any  of  the  duties  which  attach  to  other  factors,  nor  is  he 
clothed  with  any  greater  powers.* 


»  Wolff  V.  Koppel,  2  Denio  (N.  Y.) 
368,  43  Am.  Dec.  751;  Swaa  v.  Nea- 
mith,  7  Pick.  (Mass.)  220,  19  Am. 
Dec.  283;  Lewis  v.  Brehme,  33  Md, 
412,  3  Am.  Rep.  190;  Sherwood  v. 
Stone,  14  N.  Y.,  267;  Blakely  v. 
Jacobson,  9  Bosw.  (N.  Y.)  140;  Cart- 
wright  v.  Greene,  47  Barb.  (N.  Y.)  9; 
Leverick  v.  Meigs,  1  Cow.  (KY.)645. 

2  Wolff  V.  Koppel,  supra ;  Swan  v. 
Nesmith,  supra;  Sherwood  v.  Stone, 
«upra. 

*  Lewis  «.  Brehme,  supra.  In  this 
it  appeared  that  a  del  credere  agent 
collected  a  bill  of  goods  due  his  prin- 
cipal from  a  customer,  and  placed 
the  amount  to  his  own  account  with 
his  bankers,  and  purchased  of  them 
a  gold  draft,  which  he  caused  to  be 
made  payable  to  his  own  order  with- 
out reference  to  his  character  as 
agent,  and,  after  indorsing  it  to  his 
principals  or  their  order,  transmitted 
it  to  tbem  in  payment  not  only 
for  the  price  of  the  goods  sold  to 
the  customer,  but  also  of  a  balance 
due  from  himself.  The  draft  was 
dishonored  and  returned  to  the  agent, 
who  treated  the  loss  as  his  own, 
and  promised  to  send  another  draft, 
and  in  the  meantime  unsuccessfully 


solicited  payment  of  the  draft  from 
the  drawers  to  himself  and  then 
caused  himself  to  be  made  a  pre- 
ferred creditor  of  the  drawers,  who 
had  failed.  In  an  action  by  the 
principals  against  the  agent,  to 
recover  the  amount  of  the  draft,  held, 

1.  That  the  contract  resulting  from 
the  del  credere  character  of  the  agent 
was  not  entirely  discharged  in  the 
payment  of  the  money  by  the  cus- 
tomer to  the  agent. 

2.  That  the  agent  was  further 
liable,  after  the  receipt  of  the  money, 
either  by  virture  of  the  del  credere 
commission,  or  by  his  indorsement  of 
the  draft,  although  he  had  used  ordi- 
nary diligence  in  transmitting  the 
money. 

3.  That  the  promise  of  the  agent  to 
assume  the  debt,  after  the  dishonor  of 
the  draft  was  not  valid  unless  he  had 
full  knowledge  of  the  neglect  of  his 
principals  in  making  demand,  and  in 
giving  notice  of  the  dishonor  of  the 
draft. 

4.  That  the  relation  of  a  del  credere 
agent  to  his  principal,  is  that  of  debtor 
and  creditor,  and  he  is  bound  abso- 
lutely to  see  that  his  principal  is  paid. 

*  Morris  v.  Cleasby,  4  M.  &  S.   5(36; 


835 


§  1015. 


THE    LAW    OF   AGENCY.  [Book  Y. 


S  1015.  Factor's  Duty  to  care  for  Property.  It  is  the  priv- 
ilege of  the  principal  or  consignor,  to  give  such  reasonable  direc- 
tions in  regard  to  the  manner  and  place  in  which  his  property 
shall  be  stored  and  cared  for,  as  he  deems  desirable,  and  it  is  the 
dnty  of  the  factor,  consignee  or  commission  merchant  if  he 
accepts  the  consignment,  to  follow  these  directions,  unless  pre- 
vented by  sufficient  excuse.*  If  he  fails  to  do  this,  and  the  prop- 
erty is  lost  or  destroyed,  the  factor  will  be  responsible,  and  he 
cannot  exempt  himself  by  showing  a  local  custom  among  factors 
to  store  or  care  for  property  differently.' 

Where  no  instructions  or  directions  are  so  given,  it  is  still  the 
factor's  duty  to  exercise  reasonable  care,  prudence  and  diligence 
in  storing  and  caring  for  the  property  consigned  to  him ;  and  for 
a  breach  of  this  duty,  he  will  be  liable  for  the  resulting  loss.'  In 
such  cases,  if  he  pursues  the  usual  and  regular  course  which 
custom  and  experience  have  adopted  as  proper  and  prudent  under 
like  circumstances,  he  could  not,  in  the  absence  of  some  excep- 
tional circumstance  reasonably  exempting  that  case  from  the 
general  rule,  be  deemed  negligent.* 

So  though  the  factor  may  properly  be  held  responsible  for  a 
neglect  to  provide  against  the  risks  or  perils  to  which  the  property 

Thompson  v.  Perkins,  3  Mason,  233;  may,  in  the  absence  of  instructions  to 

Graham  v.  Ackroyd,  10  Hare  192.  the  contrary,    store  it  in  mass  with 

»  Vincent  v.  Rather,  31  Tex.  77,  98  other  of  the  same  kind  and  grade, 

Am.  Dec.  516.  that    being    the    customary    course. 

«  Vincent  c.  Rather,  m-pra.  Davis  v.  Kobe,  »upra. 

8  Vincent  e.  Rather,  mpra.  Com-  Sewing  machines,  shipped  under  a 
mission  merchants  who  advertise  that  contract  to  be  sold  on  commission, 
goods  consigned  to  them  will  be  were  destroyed  by  fire  without  the 
stored  in  a  fire-proof  house  are  liable  consignee's  fault,  and  after  he  had 
if  they  store  them  in  a  -wooden  house  given  reasonable  notice  to  the  sbip- 
which  is  less  safe,  and  afterwards  pers  to  take  them  back.  The  con- 
burned,  even  though  the  goods  were  tract  did  not  make  him  the  agent  of 
first  shipped  to  and  stored  in  the  the  shippers  for  any  definite  time, 
warehouse  of  the  wrong  consignee,  and  did  not  transfer  to  him  the  title 
if,'  after  the  discovery  of  the  mistake  to  the  machines.  Held  that  after  he 
by  the  real  consignees,  they  allow  the  had  given  reasonable  notice  to  remove 
goods  to  remain  in  such  warehouse.  them  he  would  be  liable  only  for 
Tj^  gross  negligence,  and  that  hence  the 
«  Davis  V.  Kobe,  36  Minn.  214,  1  shippers  could  not  recover  for  the 
Am.  St.  Rep.  663,  30  N.  W.  Rep.  loss.  Barrows «.  Cushway,  37  Mich. 
6G2;  Phillips  ».  Moir,  69  111.  155.  481. 
Factor  to  whom  wheat  is  consigned 

836 


Chap.  IV.]  FACTOES.  §  1017. 

entrusted  to  his  care  may,  in  the  ordinary  course  of  business,  be 
exposed,  he  cannot  be  held  liable  for  not  anticipating  a  danger 
altogetlier  out  of  the  ordinary  course  of  business  or  of  natural 
events.'  And  even  though  his  authority  be  otherwise  limited, 
the  factor  may,  in  the  event  of  some  unforeseen  contingency  or 
some  extraordinary  peril,  be  justified  in  assuming  extraordinary 
powers,  if  he  acts  with  the  view  of  benefiting  the  principal  and 
of  protecting  his  property  from  ruin,  and  goes  no  further  than 
reasonable  prudence  and  good  judgment  would  sanction  as  neces- 
sary and  proper  under  the  circumstances.* 

§  1016.  General  Duty  as  to  Sales.  Where  goods  are  con- 
signed to  a  factor  for  sale,  but  with  no  instructions  as  to  the 
time,  price  or  manner  of  sale,  he  is  bound,  and  bound  only,  to 
the  exercise  of  a  fair  and  reasonable  discretion  under  the  circum- 
stances. By  consigning  them  without  instructions,  the  principal 
is  presumed  to  be  willing  to  rely  upon  the  sound  discretion  of 
the  factor,  and  if  this  is  exercised,  fairly  and  in  good  faith,  the 
factor  discharges  his  duty.'  A  fortiori  is  this  so  where  the 
factor  is  instructed  to  deal  with  the  goods  as  with  his  own.* 

Following  this  general  duty  into  details  as  to  time,  place  and 
price,  we  have  : — 

§  1017.  Duty  as  to  Place  of  Sale.  Where  no  instructions  are 
given  to  the  contrary,  it  is  presumed  that  a  principal,  who  con- 
signs goods  for  sale,  to  a  factor  residing  at  a  certain  place, 
intends  that  the  goods  shall  be  sold  at  that  place,  and  the  factor 
has  no  implied  authority  to  ship  them  elsewhere  to  be  sold.* 
Any  usage  to  the  contrary  should  be  so  general  and  well  estab- 
lished as  to  warrant  the  presumption  that  the  consignment  was 

»  Johnson  «.    Martin,  11  La.  Ann.  Penn.  St.  215,  6  Am.  St.  Rep.  700, 

27,  66  Am.  Dec.  193.  Fact  that  he  had  written  for  instruc- 

8  Foster  c.  Smith,   2  Cold.  (Tenn.)  tions  but  sold  before  they  were  re- 

474,    88    Am.    Dec.    604;  Durant  v.  ceived  does  not  deprive  him  of  his 

Fish,  40  Iowa  559;  Joslin  t».  Cowee,  right  to  sell  according  to  sound  dis- 

52  N.  Y.  90;  Drummond  o.  Wood,  2  cretion.     Idem. 

Caines  (N.   Y.)  310;  Judson  «.  Stur-  «  Adams*.  Capron.  21  Md.  186,  83 

ges,    5    Day  (Conn.)    556;    Jervis  v.  Am.  Dec.  566. 

Hoyt,  5  Thom.  &  C.  (N.  Y.)  199.  s  Phillips  «.  Scott,  43  Mo.   86.  97 

•  Liotard  v.  Graves,  3  Caines  (N.Y.)  Am.  Dec.  369;  Kautfman  v.  Beasley, 

226;  Maxfleld  v.  Goodhue,  3  N.  Y.  72;  54  Tex.  563;  Wallace  v.  Bradshaw,  6 

Milbank    v.    Dennistoun,    1    Bosw.  Dana  (Ky.)  382;  Phy  ».  Clark,  35  111. 

{N.  Y.)  246;  Conway  «.  Lewis,  120  377. 

837 


§  1018.  THE    LAW    OF    AGENCY.  [Book  Y. 

made  in  reference  to  it,  or  the  principal  must  be  shown  to  have 
had  knowledge  of  it.' 

§  1018.  Duty  as  to  Time  of  Sale.  A  factor  to  whom  goods 
are  consigned  for  sale,  with  no  instructions  as  to  the  time  at  which 
they  shall  be  sold,  is  bound  to  exercise  reasonable  discretion  and 
judgment  in  reference  to  their  sale.  If,  for  example,  he  delays 
the  sale  for  an  unreasonable  time  and  the  goods  depreciate  in 
value,  he  is  liable  for  the  loss;*  but  on  the  other  hand,  if  he  sells 
within  a  reasonable  time  and  in  the  exercise  of  a  sound  discretion 
be  could  not  be  held  liable  because,  if  he  had  held  the  goods 
longer,  he  might  have  realized  more  ; '  nor  is  he  liable  because 
the  goods  are  lost  by  an  accidental  fire,  where  he  has  not  delayed 
the  sale  for  an  unreasonable  time.* 

§  1019.  Duty  as  to  Price.  In  the  absence  of  special  instruc- 
tions as  to  the  price,  it  is  the  duty  of  the  factor  to  sell  for  the 
fair  value  or  market  price,*  and  if,  in  disregard  of  this  duty  and 
without  sufficient  excuse,  he  sells  at  an  nnderprice,  or  if  he  falsely 
accounts  for  them  at  an  underprice,  he  is  liable  for  the  differ- 
ence.* 

§  1020.  Duty  in  colleoting  Price.  A  factor  who  has  made  an 
authorized  sale  upon  credit,  and  has  expressly  or  impliedly  under- 
taken the  collection  of  the  price,  is  bound  to  the  exercise  of 
reasonable  care  and  diligence  in  such  undertaking.  If  he  has 
done  so,  and  the  debt  remains  uncollected,  he  is  not,  except  where 
be  soils  del  credere,  liable  for  debt,  but  if,  by  the  exercise  of  such 
care  and  diligence,  the  debt  might  have  been  collected  and  is  not, 
the  factor  must  respond.^  He  should  not,  under  ordinary  circum- 
stances, sue  for  the  debt  upon  his  principal's  account  without  the 
latter's  instructions,  where  there  is  no  reasonable  probability  of 
benefiting  the  principal.* 

§  1021      Factor's  Duty  in  keeping  Accounts.     It  is   the  duty 

*  Phillips  r>.  Scott,  supra.  *  Bigelow  e.  Walker,  supra. 

«  Atkinson  e.  Burton,  4  Bush  (Ky.)  '  Folsom  t>.  Mussey,  8  Greenl.  (IMe.) 

299.  400,    23    Am.    Dec.    522;  Greely   v. 

»  See  Given  t>.  Lemoine,  35  Mo.  110.  Barllett,  1  Greenl.  (Me.)  172,  10  Am. 

<  Lehman  B.  Pritchett,  —  Ala.  — ,  27  Dec.  54.  McConnico  t.Curzen,  2  Call. 

Cent.  L.  Jour.  880.  (Va.)  358,  1  Am.  Dec.  540. 

'Bigelow  V.   Walker,  24  Vt.  149,  «  Forrestier  «.    Bordman,   1   Story 

58  Am.  Dec.  156;  Smith's  Com.  Law,  (U.    8.  C.   C.)  43. 
105;  Paley  on  Agency,  26. 

838 


Chap.  IV.]  FACTORS.  §  1023. 

of  the  factor  to  keep  and  preserve  true  and  regular  accounts  and 
records  of  all  of  his  receipts,  disbursements  and  other  transactions 
for  and  on  account  of  his  principal,  and  to  render  the  same  to 
him  within  a  reasonable  time.'  Where  the  factor  represents 
several  principals,  the  accounts  of  each  should  in  general  be  kept 
separate.* 

Though  the  factor  may,  as  has  been  seen,  take  from  a  pur- 
chaser to  whom  he  sells  upon  credit  the  latter's  note  payable  to 
the  factor,*  he  should  not  take  one  note  for  tlie  goods  sold  for 
different  principals.*  And  where  a  factor  procured  a  note  so 
taken  to  be  discounted,  it  was  held  that  he  had  made  it  his  own, 
and  was  liable  to  the  principal,  although  the  maker  had  failed.' 

§  1022.  Not  obliged  to  keep  Funds  separate.  It  has  been  seen 
to  be  the  general  duty  of  an  agent  to  keep  his  principal's  funds 
separate  from  his  own.  In  the  case  of  the  factor,  however,  cus- 
tom seems  to  have  established  a  different  rule.  Thus  in  a  lead- 
ing case  upon  this  subject,  it  is  said:  "In  the  usual  and  ordi- 
nary course  of  business,  a  factor  does  not  and  is  not  required  to 
keep  the  money  received  upon  the  sale  of  goods  of  different  con- 
signors in  separate  and  distinct  parcels,  but  mingles  all  in  a  com- 
mon mass,  and  with  the  like  funds  of  his  own,  from  whatever 
source  derived.  In  such  cases,  he  becomes  at  once  a  debtor  to 
his  principal  and  is  liable  to  an  action  for  the  balance  shown  to  be 
due  by  his  account  of  sales,  immediately  after  its  rendition  and 
without  any  previous  demand."  • 

§  1023.  Factor's  Duty  to  account  for  Money  and  Property. 
It  is  also  the  duty  of  the  factor  to  account  to  his  principal  for  all 
goods,  property  and  money  of  the  principal,  which  come  into  his 
hands  as  factor,  after  deducting  his  own  proper  advances  and 
commissions.^  If,  by  the  terms  of  his  employment,  any  time  lias 
been  fixed  for  this  accounting,  the  factor  should  account  at  that 

*  Story  on  Agency,  §  203;  Haas  ».  §   179,    note.      See    also    Jackson  v. 
Damon,  9  Iowa  589;  Keigbler  v.  Sav-  Baker,  1  Wash.  (U.  S.    C.  C.)  395. 
age  Mnfg  Co.,  12  Md.  383,  71  Am.  «  Johnson  v.  O'Hara,  5  Leigh  (Va.) 
Dec.  600.  456;  Myers  v.  Entriken,  6  W.   &  S, 

s  Story  on  Agency,  §  204  a.  (Penn.)  44,  40  Am.  Dec.  538. 

»  See  ante,  %  993.  «  Vail  v.  Durant,   7  Allen   (Mass.) 

*  Bee   Story    on   Agency,    §  204a.  408,  83  Am.  Dec.  695;  citing  Clarke. 
Corlies  v.  Widdifleld,  6  Cow.  (N.  Y.)  Moody,  17  Mass.  145. 

181,  to  the  contrary  has  not  been  gene-  '  Terwilliger  «.Beals,6  Lans.  (N.  Y.} 

rally  approved.  See  Story  on  Agency,      403;  Keighler  c.  Savage  Mnfg  Co.  12 

839 


§  1024.  THE   LAW   OF   AGENCY.  [Book  V. 

time ;  *  where  no  such  period  has  been  fixed,  it  is  the  duty  of 
the  factor  to  account  within  a  reasonable  time,  and  in  all  events 
upon  a  reasonable  demand.*  Where  from  the  circumstances  of 
the  case,  a  demand  is  impracticable  or  highly  inconvenient,  it  is 
the  duty  of  the  factor  to  account  within  a  reasonable  time  with- 
out a  demand.'  The  fact  that  the  transaction  was  illegal,  fur- 
nishes no  excuse  to  the  factor  for  not  accounting.* 

The  duty  of  the  factor  to  account  covers  not  only  the  profits 
made  by  the  factor  in  the  pursuit  of  his  duty,  but  those  made  by 
him  while  exceeding  or  violating  his  authority.*  He  cannot, 
without  his  principal's  consent,  purchase  any  of  the  goods  which 
he  is  employed  to  sell,  and  if  he  does,  the  principal  may,  at  his 
election,  disaffirm  the  sale  and  recover  the  goods,'  or  he  may 
affirm  the  sale  and  recover  the  price  from  the  factor.^  He  will 
not  be  permitted  to  make  any  secret  or  hidden  profit  for  himself 
out  of  the  transaction,  but  will  be  compelled  to  account  for  all 
such  to  his  principal.'  Neither  will  he  be  permitted,  when  called 
upon  by  his  principal  for  an  accounting,  to  dispute  his  principal's 
title  to  the  goods.'  The  factor  may,  however,  show  that  he  has 
been  divested  of  the  goods  by  a  superior  title." 

Acceptance  of  the  factor's  final  account  by  the  principal  with- 
out objection  will,  in  general,  relieve  the  factor  from  further 
liability  for  the  proceeds  of  goods  sold  by  him  on  credit,  but  not 
yet  paid  for." 

§  102i.  Duty  in  remitting  Money.  A  factor  who  has  received 
the  proceeds  of  goods  sold  by  him  and  has  notified  the  principal 
of  that  fact,  may,  unless  a  different  course  has  been  established 

Md.  383,  71  Am.  Dec.  600;  Curtis  t>.  Md.  883,  71    Am.    Dec.   600;  Wads- 

Gibney,    59    Md.    131;   Warriner  v.  worth  t).  Gay,  118  Mass.  44. 

People,  74  111.  346.  '  Wadsworth  v.  Gay,  snpra. 

•  Leake  v.  Sutherland,  25  Ark.  219.  »  Hidden  «.    Waldo,  55  N.  Y.  294; 
«See  Cooley  v.   Betts,    24  "Wend.  Payne  s.Waterston.  16  La.  Ann.  239. 

(N.  Y.)  203;  Topham  «.  Braddick,  1  "Marvin    v.   Ellwood,    11    Paige, 

Taunt.   572;  Burns  «.    Pillsbury,    17  (N.    Y.)  365;  Barnard  v.    Kobbe,  54 

N.  H.  66;  Wright  v.  People,  61  111.  N.   Y.  516;  Bain  v.  Clarke.   39  Mo. 

882.  252. 

»  Eaton  V.  Welton,   32  N.  H.  852;  "  Bain  v.  Clark,  supra. 

Lyle  V.  Murray,  4  Sandf.  (N.  Y.)  590.  "  Rion  v.  Gilly,  6  Mart.  (La.)  417, 

•  Baldwin  v.  Potter,  46  Vt.  403,  12  Am.  Dec.  483;  Keighler  v.  Savage 
»  See  ante,  %  469,  et  seq.  Mnfg  Co.,  supra. 

•  Keighler  v.  Savage  Mnfg  Co.,  12 

840 


Chap.  IV.]  FA0T0E8.  §  1026. 

by  instrnctions  or  usage,  await  the  principals  instructions  as  to 
the  mode  of  remitting  the  money.'  If  he  remits  without 
instrnctions,  it  is  ordinarily  at  his  own  risk.*  Having  received 
instructions,  the  factor  should  pursue  them,  for  if  he  remits  in  a 
different  manner  and  the  money  is  lost,  the  loss  will  fall  upon  the 
factor.'  If,  however,  the  principal's  instructions  are  so  uncertain 
and  ambiguous  as  to  be  fairly  open  to  two  constructions,  and  the 
factor,  in  good  faith  and  with  reasonable  care  adopts  one,  he  can 
not  be  held  liable  because  the  principal  intended  that  the  other 
should  be  pursued.* 

§  1025.  When  Principal  may  sue  Factor.  No  action  can  be 
maintained  by  the  principal  against  the  factor,  to  recover  the 
proceeds  of  goods  sold  by  the  latter,  until  after  a  demand  has 
been  made  upon  the  factor  for  payment,  or  until  he  has  been 
instructed  to  remit,  and  has  failed  or  refuse  to  comply.* 

So  a  factor  is  not,  in  general,  liable  for  interest  upon  the  pro- 
ceeds in  his  hands,  until  after  a  demand  made  upon  him  for  pay- 
ment or  he  has  been  instructed  to  remit,  unless  he  has  unreasonably 
failed  to  render  his  account  of  it,  or  unless,  after  an  account  stated 
and  settled,  he  retains  the  money  in  his  own  hands,  or  unless  the 
payment  of  interest  is  required  by  usage.' 

§  1026.  Liability  for  Acts  of  Subagent.  It  has  been  seen  to 
be  the  general  rule  that  the  factor  has  no  implied  power  to  dele- 
gate his  authority  to  another.''  Where  such  is  the  case,  if  the 
factor  employs  a  subagent  to  assist  him,  he  is  liable  to  the  prin- 

•  Ferris  v.  Paris,  10  Johns.  (N.  T.)  cipal    could    recover  of   the  factor. 

285;  Halden  v.  Crafts,  4  E.  D.  Smith  Yon  v.  Blanchard,  75  Qa.  519. 

(N.    Y.)    490;    Cooley  v.    Betts.    24  »  Cooley  «.  Betts,  24  Wend.  (N.  Y.) 

Wend.  N.  Y.  203;  Brink  v.   Dolsen,  203;  Topham  v.  Braddick.    1  Taunt. 

8   Barb.    (N.    Y.)    337;  Greentree  d.  572;  Burns®.  Pillsbury.  17  N.  H  66; 

Rosenstock,  61  N.  Y.  583.  Ferris  v.  Paris,  10  Johns.  (N.  Y.)  285; 

8  Clark  V.  Moody.  17  Mass.  145.  Halden  v.  Crafts,  4  E.  D.    Smith,  (N. 

3  Foster©.  Preston,  8  Cow.  (N,  Y.)  Y.)  490;  Brink  v.    Dolsen,   8    Barb. 

198;  Kerr  B.  Cotton.  23  Tex.  411.  See  (N.   Y.)  337.     Contra   see    Clark  v. 

ante,  §  512.  Moody,    17    Mass,    145;    Dodge    v. 

«  See  ante,  §  485.    Hays  e.  Warren,  Perkins,   9  Pick.    (Mass.)    368.     See 

46  Mo.  189.  these  cases  criticised    in   Cooley    v. 

A  factor  had  two  principals  of  the  Betts,  supra. 

same  name.     He  supposed  both  to  be  «  Tyree  v.   Parham,    66  Ala.    424; 

one.     He    sent    money     due   one  to  Sentell  d.  Kennedy,  29  La.  Ann.  679. 

the  other    which    was    lost    on    the  »  See  ante  §  998. 
way.     Held    that     the    latter    prin- 

841 


§  1027.  THE    LAW    OF   AGENCY.  [Book  V. 

cipal  for  the  subagent's  acts.'  Where  however  the  factor  is 
expressly  or  impliedly  authorized  to  appoint  a  subagent,  and  uses 
due  care  in  his  selection  he  is  not  so  liable." 


Y. 

BIOHTB   OF  FACTOR   AGAINST   PRINCIPAL. 

a.    Commissions. 

§  1027.  Factor  entitled  to  Compensation.  Like  the  broker, 
the  factor,  who  has  performed  his  undertaking,  is  entitled  to 
compensation  for  his  services.  This  compensation  is  usually  a 
commission  upon  the  price  of  the  goods  sold,  which  commis- 
sion is  either  fixed  by  the  agreement  between  the  parties  or  by 
the  usages  of  trade,  or  upon  a  quantum,  meruit.' 

The  general  rules  governing  the  right  of  the  broker  to  com- 
pensation where  the  undertaking  is  only  partly  completed, 
whether  by  the  act  of  the  principal  or  the  broker,  apply  to  the 
case  of  the  factor  under  like  circumstances. 

But  a  factor  who  is  guilty  of  fraud  or  gross  negligence  in  his 
dealings  with  his  principal;*  or  who  knowingly  renders  false 
and  fraudulent  accounts ;  •  or  who  neglects  to  keep  true  and  cor- 
rect books  and  accounts  of  his  transactions ;  •  or  who,  having  sold 
the  goods,  converts  the  money  to  his  own  use  ; '  or  who  violates 
his  instructions  in  regard  to  the  sale,'  may  forfeit  his  commis- 
sions and  be  held  liable  to  compensate  his  principal  for  the  loss 
and  injury  sustained,* 

So  if  the  principal,  in  order  to  secure  his  claims  against  the 
factor  is  compelled  to  resort  to  litigation,  the  factor  will  not  be 
allowed  commissions." 

'  See  ante  %  197.  *  Zurn  «.   Noedel,    113    Penn.    St. 

«  McCants  v.  Wells,  3  S.  C.  569.  336;  Larminie  v.  Carley,  114  111.  196. 

»  Story  on  Agency,  §  326.  *  The  neglect  of  the  factor  may  be 

4  Norman  «.  Peper,  24  Fed.  Rep.  shown  in    mitigation  or  bar  of  his 

403;  Fordyce  ».  Peper,  16Fed.  Rep.  claim    to    commissions.      Dodge    v. 

5jg  Tileston,  12  Pick.  (Mass  )  328.  Long 

•  Smith  V.  Crews,  2  Mo.  App.  and  unexcused  delay  in  informing 
269 ;  Talcott  v.  Chew,  27  Fed.  Rep.  principal  of  sale  or  in  paying  him  tlie 
073  proceeds   will    forfeit    commissions. 

•  Smith  V.  Crews,  supra.  Segar  v.  Parrish,  20  Gratt.  (Va.)  672. 
'  Brannan  v.  Strauss,  75  111.  234.  '"  Vennum  v.  Gregory,  21  Iowa  326. 

842 


Chap.  IV.]  FAcrroKS.  §  1029. 

So  a  factor  is  not  entitled  to  compensation  where  its  payment 
would  reduce  the  amount  of  the  proceeds  below  the  sum  guaran- 
teed by  the  factor  to  the  principal.' 

§  1028.  When  Factor  may  have  Comraissions  fi:oiu  both  Par- 
ties. Like  the  broker,"  the  factor  can  recover  comraissions  from 
both  parties  to  the  transaction  only  when  his  double  agency  was 
fully  understood  and  assented  to  by  each.* 

h.    -Reimbursement. 

§  1029.  Factor  entitled  to  Eeimbursement.  The  factor  is 
also  entitled  to  be  reimbursed  by  his  principal  for  all  advances 
and  disbursements  made  to  the  principal,  or  on  his  account,  in 
the  due  and  proper  performance  of  the  agency.*  As  will  be  seen, 
the  factor  has  a  lien  upon  the  goods  for  these  advances,'  but 
unless  he  has  agreed  to  look  to  the  goods  alone,  such  lien  does 
not  deprive  the  factor  of  his  personal  claim  against  the  princi- 
pal.' Nor,  unless  he  has  agreed  to  do  so,  is  he  obliged  to  wait 
until  the  goods  are  sold,  but  if  they  are  not  sold  within  a  reason- 
able time,  he  may  demand  and  recover  reimbursement  for  his 
advances.'' 

So  if,  after  the  sale  of  the  goods,  a  deficit  remains  without  the 
fault  or  neglect  of  the  factor,  he  may  recover  it  of  the  principal.* 

That  the  factor  acts  under  a  del  credere  commission  does  not 
affect  his  right  to  reimbursement  or  defeat  his  personal  claim 
against  the  principal,  except  that,  where  such  a  factor  has  sold 
the  goods,  he  cannot  sue  the  principal  for  advances  which  are 
covered  by  the  price  of  the  goods,  that  price  being  warranted 

>  Dallon   V.    Goddard,    104    MasB.  »  See  second  section  following. 

497.  where  the  factor  guaranteed  the  •  Martin  v.    Pope,  6   Ala.    582,  41 

principal  eighty  per  cent,  of  the  in-  Am.    Dec.  66;  Burrill   v.   Phillips,  1 

voice  and  sold  the  goods  for  a  sum  Gall.   (U.  S.  C.   C.)   360;    Peisch  v. 

which  would  not  pay  the  eighty  per  Dickson,    1  Mason  (U.  S.  C.  C.)  9. 

cent,  and  the  factor's  commissions.  '  Beckwith     v.     Sibley,    11    Pick. 

»  See  an<e,  §  972.  482;  Upham  v.    Lafavour,    11   Mete, 

» Talcott  V.   Chew,   27  Fed.  Rep.  (Mass.)  174;  Dolan  v.  Thompson,  126 

270.  Mass.  183.    There  is  a  statement  to 

♦  Corliesc.  Gumming,  6  Cow. (N.T.)  the  contrary  in  Corlies  ®.  Gumming, 

181;    Beckwith  v.  Sibley,    11   Pick.  6  Cow.  (N.  Y.)  181.  See  also  Gihon  t;. 

(Mass.)  482;  Upham  v.    Lafavour,  11  Stanton,  9  N.  Y.  476. 

Mete.  (Mass.)  174;  Dolan  v.  Thomp-  ■  Strong®.  Stewart, 9  Heisk.  (Tenn.) 

eon,  126  Mass.  183.  137. 

843 


§  1030.  THE  LAW  OF  AGENCY.  [Book  Y. 

to  the  principal  by  the  guarantee  arising  from  the  del  credere 
commission.* 

§  1030.  Same  Subject— Conclusiveness  of  Accoimts.  Whether 
the  account  as  rendered  by  the  factor  is  conclusive,  depends  upon 
the  intention  of  the  parties.  Where  such  an  account  was 
expressly  made  final,  and  the  factor  had  charged  himself  with 
the  price,  not  yet  paid,  of  goods  sold,  it  was  held  that  he  was 
bound,  though  the  purchaser  failed  to  pay.'  But  the  mere  giv- 
ing credit  to  the  principal  for  debts  not  yet  due,  or  giving  notes 
payable  out  of  the  proceeds  of  the  goods,  is  not  a  conclusive 
assumption  of  the  debts  by  the  factor,  and  he  may  charge  back 
against  the  principal  the  debts  that  are  not  paid,  or  defeat  a 
recovery  by  the  principal  upon  notes  so  given.* 

c.   Indemnity. 

§  1 031.  Factor  entitled  to  Indemnity  against  Losses.  So  if 
the  factor  in  the  due  and  proper  discharge  of  his  duty  and  with- 
out fault  of  his  own,  sustains  loss  or  incurs  liabilities  to  third  per- 
sons,* on  his  principal's  account,  he  is  entitled  to  be  indemnified 
by  his  principal.  Thus  if  the  factor,  by  direction  of  his  princi- 
pal, incurs  obligations  to  a  third  person  on  the  principal's  account, 
which  the  latter  neglects  or  refuses  to  meet,  and  the  factor  is 
compelled  to  do  so,  he  may  recover  of  the  principal ;  *  if,  by  the 
principal's  instructions,  he  sells  goods  with  a  warranty  which 
fails,  he  may  claim  indemnity  from  the  principal ;  •  if,  at  the 
principal's  request,  he  sells  goods  as  the  property  of  the  princi- 
pal, and  is  obliged  to  respond  to  the  purchaser  who  is  divested 
by  a  title  superior  to  that  of  the  principal,  or  if  he  sells  as  sound 

'  Graham  v.  Ackroyd,10  Hare  193,  «  a.s  where  the  factor  by  the  prin- 

19  Eng.  L.  &  Eq.  659.  cipal's    directions,    sold     wheat    for 

2  Oakley  «.  Crenshaw,  4  Cow.  future  delivery  and,  the  wheat  hav- 
(N.  Y.)  250.  ing  advanced,  the  principal  refused 

3  Robertson  «.  Livingston,  5  Cow.  to  stand  by  the  contract,  leaving  the 
(N.  Y.)  473;  Hapgood  r.  Batcheller,  factor  to  settle  with  the  purchaser. 
4  Mete.  (Mass.)  578.  Searing  7).  Butler,  69  111.  575. 

<  Ramsay   «.    Gardner,    11    Johns,  «  As  where  the  factor  was  obliged 

(N.  Y.)  439;    Powell  v.    Trustees  of  to  make   good,  losses   occasioned  by 

Newburgh,    19  Id.   284;  Stocking  v.  defective  packing.     Beach  e.  Branch, 

Sage,  1  Conn.  522,  Hill  v.  Packard,  5  57  Ga.  362. 
Wend.  (N.  Y.)  375;  Rogers  v.  Knee- 
land,  10  Id.  219. 

844 


Chap.  IV.J 


FAOTOKS. 


§  1032. 


or  valid,  goods  or  secnrities  which  prove  to  be  otherwise,  and  is 
compelled  to  make  good  the  loss,  the  principal  must  indemnify 
him.* 

d.   Lien. 

%  1032.  Factor  entitled  to  Lien.  By  the  common  law,  a 
factor  has  a  general  lien  upon  all  of  the  goods  of  his  principal 
in  his  possession,  and  upon  the  price  of  such  as  are  lawfully  sold 
by  him  and  upon  the  securities  taken  tlierefor,  to  secure  the 
payment  of  the  general  balance  of  the  accounts  between  himself 
and  his  principal,  as  well  as  for  the  advances,  charges  and  dis- 
bursements made  upon  or  in  reference  to  those  particular  goods." 
This  lien  secures  not  only  payments,  advances  and  disbursements 
actually  made,  but  those  also  which  have  been  lawfully  incurred, 
as  where  the  factor  has  accepted  drafts  drawn  in  anticipation  of  the 
proceeds  of  the  goods.'  It  also  secures  the  factor  for  obligations 
which  he  has  incurred  either  upon  the  strength  of  the  consignment 
or  as  the  result  of  the  agency,  as  surety  for  his  principal.*  But  it 
does  not  protect  independent  debts  contracted  before  and  without 
reference  to  the  agency.* 


•  As  where  a  factor  innocently  sold 
repudiated  securities.  Maitland  ®. 
Martin,  86  Penn.  St.  120. 

«  Story  on  Agency,  §  376;  McGraft 
V.  Rugee,  60  Wis.  406,  50  Am.  Rep. 
378;  Gage».  Allison,  1  Brev.  (S.  C.) 
495.  2  Am.  Dec.  682;  Hodgson  v. 
Payson,  3  H.  «&  J.  (Md.)  339,  5  Am. 
Dec.  439;  Patterson  v.  McGahey,  8 
Mart.  (La.)  486,  13  Am.  Dec.  298; 
McKenzie  «.  Nevius,  22  Me.  138,  38 
Am.  Dec.  291 ;  Lambeth  v.  Turnbull, 
5  Rob.  (La.)  264,  39  Am.  Dec.  536; 
Winter  v.  Coit,  7  N.  Y.  288,  57  Am. 
Dec.  522;  Knapp  «.  Alvord,  10  Paige 
(N.  Y.)  205,  40  Am.  Dec.  241 ;  Martin 
V.  Pope,  6  Ala.  532,  41  Am.  Dec.  66; 
Vail  e.  Durant,  7  Allen  (Mass.)  408, 
83  Am.  Dec.  695;  Weed  t.  Adams, 
37  Conn.  378;  Matthews*.  Menedger, 
2  McLean  (U.  S.  C.  C.)  145;  Gibson 
«.  Stevens,  8  How.(U.  S.)  384;  Peisch 
V.  Dickson,  1  Mason  (U.  S.  C.  C.)  9; 
Burrill  v.  Phillips,    1  Gall.  (U.  S.  C. 


C.)360;  Winner.  Hammond,  37  111 
09;  Eaton  r>.  Truesdail,  52  111.  307 
Brown  <c.  Combs,  63  N.  Y.  598 
Quitman  v.  Packard,  22  La.  Ann.  70 
Schififert).  Feagin,  51  Ala.  335;  Saw- 
yer «.  Lorillard,  48  Ala.  332;  Jordan 
V.  James,  5  Ohio,  88. 

This  lien  attaches  to  insurance  pay- 
able upon  goods  lost.  Johnson  c. 
Campbell,  120  Mass.  449. 

•  Lambeth  v.  Turnbull,  5  Rob. 
(La.)  264,  39  Am.  Dec  536;  Eaton  'c. 
Truesdail,  53  111.  307;  Vail  ?;.  Durant, 
7  Allen  (Mass.)  408,  83  Am.  Dec.  695. 

*  Story  on  Agency,  §  376;  Drink- 
water  ».  Goodwin,  Cowp.  251;  Hid- 
den V.  Waldo,  55  N.  Y.  294;  Stevens 
«.  Robins,  12  Mass.  182. 

The  fact  that  the  factor  was  paid  a 
commission  for  his  indorsement  does 
not  deprive  him  of  his  lien.  Hodg- 
son «.  Payson,  3  H.  &  J,  (Md.)  339,  5 
Am.  Dec.  439. 

»  Story  on  Agency,  §  S76;   Drink- 


845 


§  1033.  THB  LAW  OP  AGENCY.  [Book  Y. 

Statutes  have  been  enacted  in  several  of  the  States  declaring 
or  extending  this  lien,  and  providing  means  for  its  enforcement. 

§  1033.  When  Lien  does  not  exist.  This  lien  being  given  to 
secure  the  factor  for  the  balance  due  him,  the  factor  can  have 
no  lien  when  the  balance  of  account  is  against  him  and  in  the 
principal's  favor.  In  such  a  case  the  factor's  advances  will  be 
presumed  to  have  been  made  in  liquidation  of  such  balance.' 
Neither  can  a  factor,  who  is  indebted  to  his  principal  on  account 
of  previous  sales,  acquire  a  particular  lien  upon  goods  subse- 
quently sent  to  him  for  sale,  for  expenses  incurred  on  account  of 
them,  unless  such  expenses  exceed  the  amount  of  his  indebted- 
ness, and  then  only  for  the  balance.'  The  lien  of  the  factor  for 
specific  expenses,  does  not  exist  where  the  general  balance  of 
account  is  against  him.' 

So  the  lien  will  not  attach  if  it  would  be  in  violation  of  the 
agreement  of  the  parties,  as  where  it  is  expressly  stipulated  that 
it  shall  not  exist,  or  where  the  factor  agrees,  or  accepts  the  goods 
subject  to  an  instruction,  to  make  an  application  of  the  proceeds 
inconsistent  with  the  existence  of  a  Wen.* 

§  1034.  Nature  of  the  Lien.  The  lien  of  the  factor  is  but  a 
special  interest,  and  does  not  amount  to  a  general  ownership  of 
the  goods,  even  though  he  has  made  advances  equal  to  or  exceed- 
ing their  value.  The  principal  does  not  lose  his  ownership  by 
committing  the  custody  of  the  goods  to  the  factor  and  receiving 
advances  upon  them.  He  may  at  anytime,  before  the  factor  has 
sold  the  goods,  reclaim  them  upon  paying  the  advances  made, 
with  interest  and  expenses ;  and  he  is  still  entitled  to  the  pro- 
ceeds of  any  sale  made  by  the  factor,  subject  only  to  the  latter's 
charge  upon  them.* 

water  T>.  Goodwin,  supra;  Houghton  Enoch*.  Wehrkamp,  SBosw.  (N.Y.) 
V.   Matthews,    3    Bos.    &    Pul.   485;  898;  Beebe  «.  Mead,  33  N.  Y.  587. 
Stevens   «.    Robins,    12    Mass.    182;  « McGraft  v.    Rugee,    supra;    Ed- 
Olive  V.  Smith,  5  Taunt.  56.  wards.    Factors,    §    72;    Enoch    «. 

'  McGraft  v.  Rugee,  60  Wis.  406,  Wehrkamp,  supra. 

50  Am.  Rep.  878;  Godfrey  v.  Furzo,  »  Idem. 

8  P.  Wms.  185;  Zinck  v.   Walker,  2  *  Schiffer  «.  Feagin,  51  Ala.  835. 

W.  Bl.  1154;  Hollingworth  v.  Tooke,  *  United    States    v.   Villalonga,   23 

2  H.  Bl.  501;  Walker  v.  Birch,  6  T.  Wall.  (U.  S.)35;  Heard*.  Brewer,  4 

R.  258;  Weed  v.   Adams.   87  Conn.  Daly  (N.  Y.)  136;    Williams  ®.    Tilt, 

878;  Jordan  v.   James,   5  Ohio,   99;  36  N.   Y.   319;  Jordan  v.  James,  5 

Ohio,  88;  Hall  t>.  Hinks,  21  Md.  4C6. 

846 


Chap.  lY.]  FA0TOK8.  §  1035. 

The  lien  of  the  factor  is  a  privilege  personal  to  himself,  and 
can  not  be  set  up  by  a  third  person  as  a  defense  to  an  action  by 
the  principal.*  So  it  can  not  be  transferred,  and  no  question 
can  arise  in  reference  to  it  except  between  the  factor  and  his 
principal.* 

§  1035.  When  Lien  attaches.  The  lien  of  the  factor  will  not 
attach  until  the  goods  are  in  his  possession  "  and  lawfully.  He 
lias  no  lien  on  goods  the  possession  of  which  he  acquired  by  an 
illegal  act  or  in  bad  faith.*  Actual  possession  is  of  course  suffi- 
cient,* and  delivery  to  the  factor's  own  servant  or  agent  will 
suffice.*  So  putting  the  goods  upon  the  factor's  dray  to  be 
drawn  to  his  warehouse,  is  a  sufficient  delivery.' 

Where,  however,  before  the  goods  have  come  actually  into  his 
possession,  the  factor  has  made  advances  upon  them,  or  incurred 
liabilities  in  respect  to  them,  it  becomes  an  important  question 
to  determine  what  constructive  possession  is  sufficient  to  sustain 
his  lien  against  purchasers  from,  or  creditors  of,  the  principal. 
Upon  this  question  the  authorities  are  not  in  harmony,  certain 
cases  holding  that  his  lien  will  not  attach  until  the  goods  are 
actually  in  his  possession,*  while  others  maintain  the  doctrine 
that  where  advances  have  been  previously  made  in  reliance  upon 

»  Holly    V.    Huggeford,     8    Pick.  Woodruff   v.   Nashville,   &c.    R.   R. 

(Ma«8.)73,  19  Am.    Dec,   303;  Jones  Co.,  2  Head.  (Tenn.)  87. 

V.  Sinclair,  2  N.  H.  331,  9  Am.  Dec.  *  Bank  of  Rochester  e.  Jones,  4  N. 

75;  Daubigny  v.  Duval,  5  T.  R.  606.  Y.  497,  55  Am.  Dec.  290;  Taylor  v. 

s  Ames  v.  Palmer,  42  Me.   197,  65  Robinson,  8  Taunt.   648;  Kinloch  v. 

Am.  Dec.  271.  Craisi-,  3  T.  R.  119. 

»  Winter  v.  Coit,  7  N.  Y.  288,   57  »  A  factor  who  has  accepted  a  draft 

Am.   Dec.    522;    Strahorn  «.    Union  drawn  upon  goods  in  his  possession 

Stock  Yards  Co.,  43  111.  424,  92  Am.  has  a  lien  superior  to   the   claims  of 

Dec.  142;  Valle  v.  Cerre,  36  Mo.  575,  subsequent  purchasers  or    creditors. 

88  Am.  Dec.  161;  Bank  of  Rochester  Eaton  v.  Truesdail,  52  111.  307. 

V.  Jones,  4  N.  Y.  497,  55  Am.  Dec.  •  Bonner  v.    Marsh,    10   S.    &    M. 

290;  Marine  Bank  v.  Wright,   48  N.  (Miss.)  376,  48  Am.  Dec.  754. 

Y.  1;  Ryberg  v.  Snell,  2  Wash.  (U.  S.  t  Burrus  v.  Kyle,  56  Ga.  24,  citing 

0.  C.)403;  Hamilton  v.  Campbell,  9  Elliott®.  Cox,  48  Ga.  39;  Hardeman 

La.  Ann.  531;  Brown  v.  Wiggin,  16  v.  DeVaughn,    49  Ga.  596;  Clark  v. 

N.  H.  312;   Elliot  V.   Bradley,  23  Vt.  Dobbins,  52  Ga.  656. 

•217;  Byers  c.    Danley,    27  Ark.    77;  »  Saunders    v.   Bartlett,    12   Hei-k. 

Rice  V.  Austin,  17  Mass.  197;  Allen  v.  (Tenn.)  316;  Oliver  v.  Moore,  Id.  483; 

Williams,  12  Pick.  (Mass.)  297;  Baker  Woodruff  v.  Nashville,  &c.  R.  RCo., 

e.  Fuller,  21  Pick.  (Mass.)  318;  Oliver  2  Head.  (Tenn.)  87. 
p.    Moore,    12    Heisk.    (Tenn.)  483; 

847 


§  1035,  THE  LAW  OF  AGENCY.  [Book  Y. 

a  promise  to  subsequently  consign  goods,  a  delivery  to  a  common 
carrier  consigned  to  the  factor  is  sufficient. '  In  reference  to  this 
latter  doctrine,  it  is  said  by  a  learned  judge,"  that  "  The  mere 
ao-reement  to  ship  goods  in  satisfaction  of  antecedent  advances, 
will  not,  in  general,  give  the  factor  or  consignee  a  lien  upon 
them  for  his  general  balance,  until  they  come  to  his  actual  poa- 
gession  ;  but  if  there  is  a  specific  pledge  or  appropriation  of  cer- 
tain ascertained  goods,  accompanied  with  the  intention  that  they 
shall  be  a  security,  or  the  proceeds  as  a  payment,  and  they  are 
deposited  with  a  bailee,  then  the  property  is  changed,  and  vests 
in  the  individual  to  whom  they  are  to  be  delivered  by  the 
depositary." 

In  still  other  cases  it  is  held  that,  in  order  to  the  attaching  of 
the  lien,  it  is  necessary  that  the  advances  should  be  made  in 
reliance  upon  this  particular  consignment.  In  a  Vermont  case 
often  cited  upon  this  subject,  Judge  Eedfield  lays  down  the  rule 
"  that  to  give  a  factor  a  lien  upon  goods  consigned  but  not  actually 
received,  these  incidents  must  concur:  1.  The  consignment 
must  be  in  terms  to  the  factor.  *  *  *  2.  To  the  conclusive- 
ness of  such  a  contract  against  creditors  and  subsequent  purchas- 
ers it  is  requisite  that  the  consignee  should  have  made  advances 
or  acceptances  upon  the  faith  of  these  particular  consignments."  • 
In  this  case  there  was,  in  addition  to  the  incidents  mentioned,  the 
further  fact  that  the  consignors  had  delivered  to  the  factor  the 
carrier's  receipt  or  bill  of  lading,  but  the  court  did  not  consider 
this  essential  and  approved  of  Holbrook  v.  Wight,*  where  this 
fact  did  not  exist. 

In  a  leading  case  in  Missouri,'  it  is  said  "  Where  acceptances 
have  actually  been  given  upon  the  faith  of  a  consignment  by  bill 
of  lading,  there  can  be  no  doubt  that  the  consignee  acquires  such 
a  lien  or  property  in  the  goods  as  no  subsequent  act  of  convey- 
ance can  divest ;  such  an  acceptance  is  held  to  be  an  advance 
upon  the  particular  shipment. 

»  Elliott  t).  Cox,  48  Ga.  39;  Harde-  'Davis  v.   Bradley,  28  Vt.  118,  65 

man  v.  DeVaughn,  49  Ga.  596;  Wade  Am.  Dec.  226. 

V.  Hamilton,  30  Ga.    450;    Nelson  v.  *  Holbrook    v.    Wight,    24  Wend. 

Chicago,  &c.  R.  R.  Co.,  2  111.  App.  (N.  Y.)  169,  35  Am.  Dec.  607. 

180.  »Valle   v.  Cerre,   36  Mo.    575,  88 

2  GoLDTHWAiTE,   J.,   in  Desha  «.  Am.  Dec.  161. 
Pope,  6  Ala.  690,  41  Am.  Dec.  76. 

848 


Chap.  lY.]  FACTOKS.  §  1036. 

"Where  there  has  been  no  advance  or  acceptance  expressly  made 
■upon  the  particular  consignment,  and  the  question  is  only  of  a 
general  balance  of  account  for  previous  advances,  the  case  differs 
not  so  much  in  principle  as  in  the  evidence  required  to  establish 
the  lien.  It  matters  not  whether  the  lien  for  a  balance  of  account 
arises  by  operation  of  law  from  the  usage  of  trade,  or  from  the 
positive  and  special  agreement  and  understanding  of  the  par- 
ties;^ and  it  may  extend  to  all  sums  for  which  a  factor  has 
become  liable  as  surety  or  otherwise  for  his  principal,  whenever 
the  suretyship  has  resulted  from  the  nature  of  the  agency,  or  the 
express  arrangement  of  the  parties,  or  it  has  been  undertaken 
upon  the  footing  of  such  a  lien.'  Whether  or  not  the  given  con- 
signment is  to  be  considered  as  made  to  cover  a  general  balance 
of  account,  will  depend  upon  the  special  arrangements,  agree- 
ment, and  understanding  of  the  parties  ;  but  where  such  an 
arrangement  exists,  and  the  consignment  is  made  in  pursuance  of 
it,  and  there  is  nothing  else  in  the  case  which  is  inconsistent  with 
the  hypothesis,  the  case  would  be  governed  by  the  same  principle, 
and  a  delivery  to  the  carrier  will  be  considered  as  a  constructive 
delivery  to  the  consignee.^  In  such  case  the  shipment  and  deliv- 
ery of  the  goods  to  the  carrier,  under  the  bill  of  lading,  amounts 
to  a  specific  appropriation  of  the  property  with  an  intention  that 
it  shall  be  a  security  or  a  payment  to  the  consignee  for  the  advances 
he  has  made." 

In  an  Illinois  case  it  was  held  that  a  consignor  who  had  put 
goods  into  the  possession  of  a  common  carrier  to  be  carried  and 
delivered  to  a  factor  in  pursuance  of  a  preceding  arrangement 
and  to  apply  on  prior  advances,  and  had  taken  a  bill  of  lading  in 
the  factor's  name,  had,  before  the  shipment  of  the  goods  and 
before  the  delivery  of  the  bill  of  lading  to  the  factor,  the  right 
to  change  the  destination  of  the  goods  and  that  the  carrier  was 
bound  to  obey  such  directions.* 

§  1036.  Who  may  confer  Lien.  As  has  been  seen  in  an 
earlier  portion  of  the  work,  the  possession  upon  which  a  lien  is 

>  Citing  Story  on  Agency,  §  375.  Dec.  76;  3  Parsons  on  Contracts,  261, 

*  Idem.  note  w. 

•Citing  Russell   on   Factors,    203;  « Lewis  v.    Galena,  &c.  R.  R.,    40 

Clark  D.  Mauran,  3  Paige  (N.  Y.)  373;  111.    281;    same    point:     Strahorn  v. 

Bryans  v.   Nix,  4  Mees.  &  W.  791;  Union  Stock  Yard  Co.,  43  111.  424,  93 

Des^ha  v.   Pope,   6  Ala.  690,  41  Am.  Am.  Dec.  142. 

54  849 


g  1037.  THE  LAW  OF  AGENCY.  [Book  Y. 

based  must  have  been  acquired  from  one  having  a  lawful  right 
to  confer  it.  Hence  if  the  factor  acquired  possession  from  one 
who  had  no  power  to  create  a  lien,  or  who  was  a  mere  wrong- 
doer, or  who  exceeded  his  authority,  or  whose  possession  was 
tortious,  he  can  in  general  acquire  no  right  of  lien.' 

But  to  prevent  hardship  in  the  case  of  factors  who  have 
received  goods,  in  good  faith  and  in  the  usual  course  of  business, 
from  one,  who  the  factor  had  no  notice  was  not  the  true  owner 
thereof,  and  in  whose  name  the  goods  were  shipped,  it  is  pro- 
vided, in  several  of  the  States,  that  the  person  in  whose  name 
the  goods  are  consigned  shall  be  deemed  to  be  the  owner  so  as  to 
entitle  the  consignee  thereof  to  a  Hen.* 

These  acts,  however,  apply  only  where  a  shipment  of  property 
has  been  made  with  the  consent  of  the  real  owner  in  the  name 
of  another,  thus  conferring  upon  the  latter  the  apparent  owner- 
ship and  right  of  control,  and  where  innocent  parties  on  the  faitli 
of  the  evidence  thus  furnished  have  made  advances  on  the  prop- 
erty.' 

'  §  1037.  How  Lien  may  be  lost.  When  the  lien  of  the  factor 
has  once  attached,  it  can,  like  other  liens,  only  be  lost  or  de- 
stroyed by  some  act  of  the  factor.  It  is  superior  to  the  claims 
of  subsequent  purchasers,  and  cannot  be  defeated  by  a  levy  of  an 

I  Fitch    V.    Newberry,     1    Doug.  whose  name  such  shipment  shall  have 

(Mich.)  1,  40  Am.  Dec.  33;  Robinson  been  made,  to  or  for  the  use  of  such 

V.  Baker,  5  Cush.  (Mass.)  137,  51  Am-  consignee. 

jjgg  54  §  2.  The  lien  provided  for  in  the 

9  Thus  the  statute  of  New  York  preceding    section,    shall    not   exist 

provides  as  follows:—  where    such   consignee    shall    have 

"  1 1.  After  this  act  shall  take  notice,  by  the  bill  of  lading  or  other- 
effect,  every  person  in  whose  name  wise,  at  or  before  the  advancing  of 
any  merchandise  shall  be  shipped,  any  money  or  security  by  him,  or  at 
shall  be  deemed  the  true  owner  or  before  the  receiving  of  such  money 
thereof,  so  far  as  to  entitle  the  con-  or  security  by  the  person  in  whose 
signee  of  such  merchandise  to  a  lien  name  the  shipment  shall  have  been 
thCTeon.  made,    that  such  person  is  not  the 

1.  For    any    money  advanced,    or  actual  and  fio/ia  Jwfe  owner  thereof." 
negotiable    security    given    by  such  Rev.  Stat.  1883,  p.  2257. 
consignee,    to  or  for  the  use  of  the  3  Kinsey  i?.  Leggett.  71  N.  Y.  387; 
person  in  whose  name  such  shipment  Merchants',   &c.    Bank  v.  Farmers', 
shall  have  been  made;  and,  &c.  Bank,  60  N.  Y.  43;  Newland  v. 

2.  For    any    money   or  negotiable  Woodruff,  60  N.  Y.  73. 
security   received    by  the  person  in 

850 


Chap.  IV.] 


FACTORS. 


§  1038. 


attachment  or  execution  against  the  principal,  or  by  summoning 
the  factor  in  garnishment.* 

The  factor  may  waive  his  lien  by  voluntarily  parting  with  the 
possession  of  the  goods,  but  a  temporary  change  of  custody  for  a 
special  purpose, — the  factor  still  retaining  his  control  over  them, — 
will  not  amount  to  a  waiver.*  If  he  is  wrongfully  deprived  of 
the  goods,  he  has  such  an  interest  as  will  entitle  him  to  recover 
them.* 

If  the  factor  wrongfully  sells,  pledges  or  disposes  of  the  prop- 
erty or  suffers  it  to  be  taken  for  his  debt,  he  loses  his  lien,*  and 
it  will  be  deemed  to  be  waived  if,  when  called  upon  for  the 
property,  he  bases  his  right  of  detention  upon  other  grounds.* 

§  1038.  How  Lien  enforced.  As  has  been  seen  in  an  earlier 
section  a  factor,  who  has  made  advances  upon  his  principal's 
goods,  may,  if  the  principal  neglect  to  repay  the  same  within  a 
reasonable  time  after  a  demand  for  repayment,  sell  enough  of 
the  goods  to  satisfy  his  claim,  even  though  such  sale  be  in  con- 
travention of  his  principal's  instructions.' 


'  Eaton  V.  Truesdail,  52  111.  307; 
MuUer  t>.  Pondir,  55  N.  Y.  325;  Bard 
«.  Stewart,  3  T.  B.  Mon.  (Ky.)  72; 
White  Mountain  Bank  v.  West,  46 
Me.  15;  Barnett  v.  Warren,  82  Ala, 
557. 

Factor  who  has  made  advances  to 
his  principal  may  proceed  to  sell  not- 
withstanding the  service  of  an  attach- 
ment sued  out  by  a  creditor  of  the 
principal.  The  attaching  creditor 
cannot  arrest  a  sale  without  tendering 
to  the  factor  the  amount  of  his 
advances.  Baugh  v.  Kirkpatrick,  6i 
Penn.  St.  84,  93  Am.  Dec.  675. 

*  Matthews  v.  Menedger,  2  McLean 
(U.  S.  C.  C.)  145;  Winne  v.  Ham- 
mond, 37  111.  99;  Cator  v.  Merrill,  16 
La.  Ann.  137;  Gragg  v.  Brown,  44 
Me.  157;  Baker  v.  Fuller,  21  Pick. 
0VIa8S.)318;  Archer  v.  McMechan,  21 
Mo.  43;  Bull  v.  Sigerson,  24  Mo.  53; 
Jordan  v.  James,  5  Ohio,  88. 

3  Holbrook  v.  Wight.  24  Wend. 
(N.  Y.)  169,  85  Am.  Dec.  607. 

«  Jarvis  v.    Rogers,   15  Mass.  389 ; 


Holly©.  Huggeford,  8  Pick.  (Mass.) 
73,  19  Am.  Dec.  303. 

•  McPherson  v.  Neuffer,  11  Rich. 
(S.  C.)  L.  267;  Holbrook  v.  Wight,  24 
Wend.  (N.  Y.)  169,  35  Am.  Dec.  607; 
Winter  v.  Coit.  7  N.  Y.  288,  57  Am. 
Dec.  522. 

The  factor's  statutory  lien  is  not 
waived  by  taking  a  note  for  the 
advances.  Story  v.  Flournoy,  55  Ga. 
56.  A  factor  does  not  waive  his  liea 
by  holding  out  his  principal  as  the 
owner  of  the  goods.  Seymour  v. 
Hoadley,  9  Conn.  418,  nor  where  his 
advances  exceed  the  value  does  he 
lose  his  lien  by  certifying,  in  good 
faith,  in  attachment  proceedings 
against  his  principal,  that  he  holds  no 
goods  for  the  benefit  of  the  latter. 
Bank  v.  Sturgis,  9  Bosw.  (N.  Y.)  660. 

But  taking  a  judgment  note  has 
been  held  to  be  a  waiver  of  the  lien. 
Darlington  v.  Chamberlain,  20  111. 
App.  443. 

»  See  ante,  §  1009. 

Where    an    agent    acting  under  a 


851 


§  1039.  THE  LAW  OF  AGENCY.  [Book  Y. 

VI. 

EIGHTS   GF  FACTOR   AGAINST   THIED    PERSONS. 

a.   In  Contract. 

§  1039.  May  sue  for  Price  of  Goods  sold.  A  factor  who  has 
sold  goods  for  his  principal,  may  maintain  an  action  in  his  own 
name  to  recover  the  price.'  So  if  he  has,  upon  the  sale,  taken 
the  note  or  other  obligation  of  the  purchaser  payable  to  himself, 
he  may  recover  upon  it  in  his  own  name.' 

This  right  of  the  factor  to  sue  for  the  price  is,  in  general,  sub- 
ordinate to  the  principal's  right  to  interpose  and  recover  the 
price  himself.'  But  where  the  factor  has  a  lien  upon  the  goods 
or  their  proceeds,  equal  to  or  greater  than  their  value,  the  prin- 
cipal can  not  cut  off  the  factor's  right  to  sue.* 

So,  as  has  been  seen,'  the  factor  has  a  lien  not  only  upon  the 
goods,  but  upon  their  proceeds,  and  if,  before  the  purchaser  has 
paid  the  principal,  the  factor  gives  notice  of  his  lien  to  the  pur- 
chaser, no  subsequent  payment  by  the  purchaser  to  the  principal 
will  prevent  the  factor  from  recovering  to  the  extent  of  his  lien 
from  the  purchaser.'     It   has  been  considered  that  the  factor 


del  credere  commission  has  a  lien  upon 
goods  exceedino;  their  value,  a  bill  of 
sale  of  the  goods  made  to  him  by  his 
insolvent  principal,  though  perhaps 
unlawful,  will  be  sustained  as  a  fore- 
closure of  the  lien.  Fourth  Nat. 
Bank  1).  American  Mills  Co.,  29  Fed. 
Rep.  611. 

1  Graham  X).  Duckwall,  8  Bush 
(Ky.)  12;  Ilsley  «.  Merriara,  7  Cush. 
(Mass.)  242,  54  Am.  Dec.  721;  Toland 
B.  Murray,  18  Johns.  (N.Y.)  24;  Ladd 
r.  Arkell.  37  N.  T.  Super.  Ct.  35; 
White  V.  Chouteau,  10  Barb.  (N.  Y.) 
202;  Miller  t).  Lea,  35  Md.  396,  6  Am. 
Rep.  417. 

»  Van  Staphorst  «.  Pearce,  4  Mass. 
258. 

»  See  voit,  §  1042. 

«  Hudson  V.  Granger,  5  B.  «fc  Aid. 
27.  In  this  case  the  owner  of  the 
goods  being  indebted  to  the  factor  in 


an  amount  exceeding  their  value, 
consigned  them  to  him  for  sale.  The 
factor  who  was  also  indebted  to  the 
defendant  sold  the  goods  to  him. 
The  factor  became  bankrupt  and  on 
a  settlement  of  accounts  bptween 
defendant  and  the  factor's  assignees, 
the  defendant  allowed  credit  for  the 
price  of  the  goods  and  proved  his 
claim  for  the  balance  against  the  fac- 
tor's estate.  The  plaintiffs,  who  were 
the  original  owners  of  the  goods, 
brought  suit  against  the  defendant  for 
the  price;  but  the  court  held  that  as 
the  factor  had  a  lien  on  the  whole 
price  of  the  goods,  the  settlement 
between  defendant  and  the  assignees 
was  a  bar  to  the  action. 

8  Ante,  §  1032. 

•  Drinkwater  «.  Goodwin,  Cowp. 
251 ;  Paley's  Agency,  865,  6. 


852 


Chap.  IV.]  FA0T0K8.  §  1040. 

must,  in  such  a  case,  indemnify,  or  offer  to  indemnify,  the  pur- 
chaser against  an  adverse  suit  by  the  principal.  "Whether  such 
indemnity,  however,  is  essential,  is,"  says  Mr.  Whakton,  "  a  mat- 
ter of  dispute.  Lord  Mansfield's  authority,  in  the  case  last 
cited,  is  to  the  affirmative,  and  such  is  the  view  of  Mr.  Paley.' 
On  the  other  hand  Mr.  Eussell"  says :  '  It  appears  to  be  taken 
for  granted  that  in  such  cases  third  persons  are  entitled  to  an 
offer  of  indemnity  from  the  factor ;  and  it  is  believed  that  in 
practice  such  indemnity  is  usually  offered ;  although  whether 
this  be  absolutely  essential  in  order  to  the  security  of  the  factor's 
rights  may  admit  of  question.'  And  Judge  Stort  •  speaks  even 
more  doubtfully :  '  It  seems  at  least  a  questionable  point  whether 
there  is  any  principal  of  law  which  positively  requires  such  indem- 
nity or  offer  of  indemnity.'  "  * 

Where  the  action  is  brought  by  the  factor  in  his  own  name, 
the  defendant  may  avail  himself — 

1.  Of  any  defenses  which  he  has  against  the  factor  who  is  the 
plaintiff  in  the  suit;*  and 

2.  Of  any  defenses  which  he  has  against  the  principal,*  except 
that  such  defenses  can  not  defeat  the  factor's  action  to  the  extent 
of  his  lien.' 

§  1040.  May  sue  on  Contracts  made  in  his  Name.  So  where 
the  factor  has  entered  into  contracts  with  third  persons  in  his 
own  name  in  reference  to  the  goods,  he  may  sue  upon  the  same. 
Thus  cotton  factors,  who  have  sold  goods  consigned  to  them, 
may,  in  their  own  names,  recover  the  damages  resulting  from  a 
breach  of  the  contract  by  the  buyer,  although  they  may  be  bound 
to  pay  such  damages  when  recovered  to  the  consignor.  They 
have  a  special  property  in  the  cotton,  and  a  lien  upon  it  for  their 
commissions  which  attaches  on  the  very  damages  recovered  and 
would  be  increased  thereby.'  So  a  factor  may  sue  a  third  person 
for  the  breach  of  a  contract  of  storage.* 

»  Paley'8  Agency,  365,  6.  •  Atkyns  v.   Amber,   2   Esp    493; 

»  Factors  &  Brokers,  247.  Grice  p.  Kenrick,  L.    R.  5  Q.  B.  344. 

8  Agency,  §  409.  t  Drlnkwater  v.    Goodwin,    Cowp. 

*  Wharton  on  Agents,  §  777.  251. 

sEwell's  Evans  on  Agency,    387;  «  Groover  «.  Warfleld, 50  Ga.  644. 

Gibson    v.    Winter,    5   B.   &  Ad.  96;  »  Allen  v.  Steers,  39  La.  Ann.  586. 

Bauerman  v.  Radenius,  7  T.  R.  659. 

853 


§  lOil.  THE  LAW  OF  AGENCY.  [Book  V. 

I.    In  Tort. 

§  1041.  May  maintain  Trespass,  Beplevin  or  Trover.  The  fac- 
tor has  such  a  special  interest  in  the  goods  that  he  may  maintain 
trespass  or  trover  against  one  who  injures  them,  or  deprives  him 
of  their  possession.'  As  against  a  mere  stranger  he  could  recover 
the  full  value  of  the  goods ;  *  but  as  against  the  principal  or  one 
claiming  under  him,  he  can  recover  only  to  the  extent  of  his 
interest.* 

So  a  factor  under  a  del  credere  commission,  having  a  lien  for 
advances  made  by  him  upon  goods  consigned  to  him  and 
delivered  to  another  to  hold  for  him,  may  maintain  replevin 
against  the  bailee  for  their  non-delivery.* 

VII. 

EIGHTS   OF    PRINCIPAL    AGAINST   THIRD   PERSONS. 

a.   In  Contract. 

%  1042.  May  sue  for  Price  of  Goods  sold.  Except  in  those 
cases  in  which  the  factor  has  a  lien  equal  to  or  exceeding  the 
value  of  the  goods,'  the  principal  may  sue  for  and  recover  in  his 
own  name  the  price  of  the  goods  sold  for  him  by  the  factor,  even 
though  the  principal  was  not  disclosed  and  the  factor  acted  as 
the  ostensible  principal.*  Where  the  factor,  having  a  lien  upon 
the  proceeds,  has  given  notice  to  the  purchaser  not  to  pay  the 
amount  of  it  to  the  principal,  the  latter  may  recover  the  surplus  ; 
or,  by  satisfying  the  factor's  claim,  can  recover  the  whole.'  In 
other  cases,  the  right  of  the  principal  to  sue  is  precedent  to  that 

'See  an<«,  I  765;  Fitzhugh  «.  Wi-  Johns.  9  Allen   (Mass.)  419;    llsley  «. 

man,  9  (N.  Y.)  559;  Beyer  v.   Bush,  Merriam,  7  Cush.  (Mass.)  243,  54  Am. 

50  Ala.  19;    Robinson  v.  Webb,    11  Dec.  721;  Girard  v.  Taggart,  5   S.  & 

Bush  (Ky.)  464;  Gorum  v.  Carey,  1  R.  (Penn.)  19;  Graham  ».Duckwall.  8 

Abb.  (N.  Y.)  Pr.  285.  Bush  (Ky.)  12;  Miller  v.  Lea,  35  Md. 

s  See  ara^e,  §  765.  396,    6  Am.   Rep.    417;  Huntington 

»  Heard  v.  Brewer,  4  Daly,  (N.  Y.)  v.  Knox,   7  Cush.  (Mass.)  371;  Locke 

136.  V.  Lewis,  124  Mass.  1 ;  26   Am.    Rep. 

<  Holbrook   v.   Wight,    24  Wend.  631;  Ladd.  v.  Arkell,  40  N.  Y.  Super 

(N.  Y.)  169,  35  Am.  Dec.  607.  Ct.  150;  Stewart  c. Woodward,  50  Vt 

s  Hudson  «.  Granger,  5  B.  &  Aid.  78;  28  Am.    Rep.    488,    Brewster  v. 

27.  Saul,  8  La.  296. 

•  Roosevelt  v.   Doherty,  129  Mass.  f  Story  on  Agency. 

301,   37  Am.   Rep.    356;    Lerned  v. 

854 


Chap.  IV.]  FACTORS.  §  1043. 

of  the  factor,  and  the  principal,  although  previously  undisclosed, 
may  intervene  at  any  time  before  the  payment  to  the  factor  and, 
by  notice  to  the  purchaser,  require  payment  to  himself.'  The 
fact  that  the  factor  has  taken  a  note  payable  to  himself,  will  not 
defeat  the  principal's  right  of  action,  except  where  the  note  con- 
stitutes payment  or  has  been  negotiated.'  But  where  the  factor, 
in  selling  the  goods  of  several  principals,  takes  a  note  payable  to 
himself  for  the  entire  price,  no  one  of  the  principals  can  sue  for 
his  proportion  of  the  price,  nor  can  he,  though  no  note  was 
given,  sue  for  his  proportion,  where  the  goods  of  himself  and 
other  principals,  or  of  himself  and  the  factor  personally,  were 
sold  for  a  gross  price.* 

§  1043,  Same  Subject— What  Defenses  Principal  subject  to. 
"Where  the  purchaser  knew,^  or  had  reasonable  grounds  to  be- 
lieve,* that  the  factor  was  acting  as  agent  for  a  principal,  he  will 
not  be  permitted  to  avail  himself,  in  an  action  brought  by  the 
principal,  of  set-offs  or  other  defenses  which  he  may  have  against 
the  agent.  But  mere  knowledge  that  the  seller  was  a  factor  is 
not  enough,  as  he  may  sell  his  own  goods.* 

Where,  however,  the  principal  has  permitted  the  factor  to  sell 
as  the  apparent  principal  in  the  transaction,  the  real  principal,  if 
he  intervenes,  must  take  the  contract  subject  to  such  defenses  as 
the  purchaser,  who  did  not  know  or  have  reason  to  believe  that 
the  factor  was  but  an  agent,  and  who  has  acted  in  good  faith,  has 
acquired  up  to  the  time  when  the  principal  intervenes  and  de- 
mands performance  to  himself.' 

'  Kelley  r.  Munson,  7  Mass.  319,  5  Super,    150;  Stewart  v.  "Woodward, 

Am.  Dec.  47;  Golden  v.  Levy,  1  Car.  50  Vt.  78;  28  Am.  Rep.  488. 

L.  Repos.  527;  6  Am.  Dec.  555.  •  Schell  ».  Stephens,    50    Mo.    379; 

2  See  ante,  %  772,  See  Roosevelt  «,  Giaham  v.  Duckwall,  8   Bush  (Ky.) 

Doberty,  129  Mass.  301,  37  Am,  Rep,  12. 

356.  T  Roosevelt  v.  Doherty,  129   Mass. 

8  Roosevelt  c.  Doherty.  «Mj9ra.  801,   37   Am.    Rep.    356;     Locke    v. 

*  Darlington    v.    Chamberlin,    120  Lewis,    124  Mass.  1 ;  26   Am.    Rep. 

111.  585,    12  North   E.   Rep.  78;    St.  633;    Huntington  ».    Knox,  7  Cush. 

Louis  Bank  v.  Ross,  9  Mo.  App.  399;  (Mass.)  371;  Barry  «).  Page.  10  Gray, 

Miiler    e.    Lea,    infra;   Catterall    v.  (Mass.)    398;    Hogan    v.     Shorb,    24 

Hindle.  L,  R.,1  C.  P.  186;  Dresser  v.  Wend.  (N.  Y.)  458;  Merrick's  Estate, 

Norwood,  17  C.  B.  (N.   S  )  466.  Guy  5  W.  &.  8.  (Penu.)  9. 

«.  Oakley,  13  Johns    (N.Y.)  331,  A  foreign  factor  sold   merchandise 

«  Miller  ©.  Lea,  35  Md.    396,6   Am.  to  the  defendant  in  his  own   name 

Rep.  417;  Ladd  v.  Arkell,  40  N.  Y.  and  without  disclosing  his  principal 

855 


§  1044. 


THE    LAW    OF    AGEKCT. 


[Book  Y: 


§  1044.  Eight  to  follow  Property.  Notwithstanding  the  con- 
signment to  the  factor  or  his  advances  upon  them,  the  goods  still 
remain  the  property  of  the  principal,  and  so  continue  until  law- 
fully sold  by  the  factor.  They  cannot  be  taken  for  the  factor's 
debts,^  nor  appropriated  by  him  to  their  payment,'  nor,  except  by 
virtue  of  a  statute,  can  they  be  pledged  as  security  for  his  pri- 
vate demands.'  Neither,  as  in  other  like  cases,  can  the  factor, 
without  his  principal's  consent,  be  permitted  to  sell  to  himself, 
or  to  a  third  person  in  trust  for  himself. <  Property  so  disposed 
of,  or  its  value,  may  be  recovered  by  tlie  principal. 

So  the  factor  stands  in  the  situation  of  a  trustee  for  his  princi- 
pal, and  if  the  principal  can  trace  his  property,  whether  it  be  the 
identical  article  which  first  came  into  the  factor's  possession,  or 
other  property  purchased  for  the  principal  by  the  factor  with  the 
proceeds ;  or  if,  upon  the  sale,  the  factor  has  taken  notes  or  other 
securities  for  the  price,  the  principal  may  follow  and  recover  the 
property  or  its  proceeds  either  in  the  hands  of  the  factor  or  of 
his  legal  representatives,  or  of  his  assignee  if  he  should  become 
insolvent  or  bankrupt,  or  in  the  hands  of  a  third  person  who 
has  taken  it  with  notice  of  the  trust  or  without  consideration.' 


and  received  his  own  check  in  part 
payment  therefor.  Held  in  an  action 
by  the  principal  to  recover  the  price 
of  the  merchandise  thus  sold,  that,  in 
the  absence  of  proof  that  the  defend- 
ant knew  of  the  representative  char- 
acter of  the  factor,  the  principal 
could  not  recover.  Traub  v.  Milliken, 
57  Me.  63,  2  Am.  Rep.  14. 

>  Loomis  V.  Barker,  69  111.  360; 
Holly  u.  Huggeford,  8  Pick.  (Mass.) 
73,  19  Am.Dec  308;  Blood  v.  Palmer, 
11  Me.  414,  26  Am.  Dec.  547;  Moore 
V.  Hillabrand,  16  Abb.  N.Cas.  (N.Y.) 
477;  Ellsner  v.  Radcliff,  21  111.  App. 
195. 

«  Stewart  «.  Woodward,  50  Vt.  78, 
28  Am.  Rep.  488;  Benny  v.  Rhodes, 
18  Mo.  147,  59  Am.  Dec.  293;  Benny 
V.  Pegram,  18  Mo.  191,  59  Am.  Dec. 
298. 

»  See  anis,  %  994. 

*  See  anU,  %  1007. 


•  Veil  V.  Mitchel,  4  Wash.  (U.  S. 
C.  C.)  105;  Fahnestock  «.  Bailey,  3 
Mete.  (Ky.)  48,  77  Am.  Dec.  161; 
Price  V.  Ral?ton,  2  Dall.(Penn.)  60,  1 
Am.  Dec.  2G0;  Thompson  v.  Perkins, 
3  Mason  (U.  S.  C.  C.)  233;  Chester- 
field Mnfg  Co.  V.  Dehon,  5  Pick. 
(Mass.)  7,  16  Am.  Dec.  367;  Sheflfer 
Montgomery,  65  Penn.  St.  329; 
Farmers'  «S;c.  Bank  v.  King,  57  Penn. 
St.  202,  98  Am.  Dec.  215;  Holly  v. 
Huggeford,  8  Pick,  (Mass.)  73,  19 
Am.  Dec.  303;  Kelly  v.  Munson,  7 
Mass.  319;  Blackman  v.  Green,  24 
Vt.  17;  Potter  v.  Dennison,  10  111. 
590;  Tooke  v.  Hollingworth,  5  T.  R. 
215;  Scott  «.  Surman,  Willes  400; 
Bryson  v.  Wylie,  1  Bos.  &  Pul.  83, 
foot  note;  Horn  v.  Baker,  9  East. 215; 
Hamilton  «.  Bell,  10  Ex.  545;  Whit- 
field V.  Brand,  16  Mees.  &  W.  282; 
St.  Louis  Bank  v.  Ross,  9  Mo.  App. 
399. 


85G 


Chap.  ly.]  FACTORS.  §  1045. 

Where,  however,  the  factor  sells  the  goods  for  cash  and  mixes 
it  indiscriminately  with  his  own,  there  cannot  ordinarily  be  any 
subsequent  specific  appropriation  of  it'  And  money  cannot  be 
followed  which  is  paid  away  in  due  course  of  business  without 
any  notice  of  the  trust.' 

A  factor,  however,  who  has  sold  goods,  has  no  implied  author- 
ity to  sell  a  debt  existing  in  the  form  of  an  open  account  and 
arising  out  of  the  sale,  so  as  to  transfer  the  title  to  the  debt, 
where  the  principal  was  not  in  default,  and  had  not  been  called 
upon  to  repay  the  factor  his  advances.' 

But  if  the  factor,  having  sold  the  goods,  lends  the  money  to  a 
third  person,  who  knows  that  it  belongs  to  the  principal,  the 
principal  may  recover  it  of  the  borrower.*  Where,  however,  the 
factor  loans  the  money  of  his  principal  to  one  having  no  knowl- 
edge that  it  did  not  belong  to  the  factor,  the  borrower  may  apply 
it  to  a  debt  owing  to  him  by  the  factor  and  the  principal  can  not 
recover  it.' 

h.   In  Tort. 

§  1045.  For  Injuries  to  or  Conversions  of  the  Goods.  For  all 
injuries  to,  or  conversions  of  the  goods,  which  affect  the  title  to 
them,  the  principal,  notwithstanding  the  consignment  to  the  fac- 
tor or  his  lien  upon  them,  may  maintain  such  appropriate  actions 
against  third  persons  as  are  based  upon  the  general  ownership  of 
the  goods.' 

'  Price  V.  Ralston,  8  Dall.  (Penn.)  60,  Wliere  the  proceeds  are  so  deposited 

1  Am.  Dec.  260.     But  see  ante,  §  534.  in  a  separate  account  the  fact  that  the 

2  Price  V.   Ralston,  supra;   Veil  v.  account    also   includes    the   factors' 

Mitchel.  4  Wash.  (U.  S.   C.  C.)  105;  commissions    will    not    prevent  the 

Fahnestock  v.  Bailey,  8  Mete.  (Ky.)  principal     from     following    it,    nor 

48,  77  Am.  Dec.  161.  enable  the  factors'  creditors  to  reach 

An  insolvent  firm  of  factors  opened  it.     Richardson    v.   St.     Louis    Nat. 

an  account  in  a  bank  in  their  name  as  Bank,  10  Mo.  App.  246. 

"  agents  "  in  order   to  protect  their  »  Commercial     National     Bank  v. 

principal,    which  purpose  the  bank  Heilbronner,  108K  T.  439,  15  North 

knew.     The    factors    deposited    the  E.  Rep,  701. 

proceeds  of  their  principal's  goods  in  <  Sheffer  v.  Montgomery,  65  Pena, 

this  account  and  on  settlement  gave  St.  329. 

him  a  check  to  balance.     Held  that  s  Lime  Rock  Bank  v.  Plimpton,  17 

the  bank  might  not  charge  to  that  Pick.  (Mass.)  159,  28  Am.  Dec.  286. 

account  a  debt  of  the  agents,  even  See  Thacher  v.  Pray,  113  Mass.  291, 

with  their  consent.  Baker  ».  New  York  18  Am.  Rep.  480. 

National  Bank,  100  N.  Y.  31,  53  Am.  «  See  ante,  §  792;   Holly  v.   Hugge- 

Rep.  150.  foid,8Pick.(Ma3s.)  73,19  Am.  Dec.303. 

857 


§  104:6.  THE   LAW    OF   AGBNOT.  [Book  V. 

YIII. 
RIGHTS    OF   THraD   PERSONS    AGAINST   PBINOIPAL. 

§  1046.  Same  as  in  other  Cases.  The  factor  is  ordinarily  a 
general  agent,  pursuing  a  vocation  to  which,  in  the  absence  of 
known  limitations,  certain  implied  powers  are  incidental.  What 
these  powers  are  have  already  been  seen.  The  principal  may, 
however,  extend  the  scope  of  these  powers,  either  by  express 
authority,  or  by  holding  the  factor  out  as  possessing  the  ex- 
tended power.  Wherever,  therefore,  the  factor,  acting  within 
the  scope  of  his  authority,  has  incurred  obligations  on  the  part 
of  his  principal  to  third  persons,  the  principal  is  liable  as  in 
other  cases,  although  the  factor  may  have  violated  his  instruc- 
tions.' 

§  1047.  How  when  Principal  undisclosed.  Even  although 
the  principal  was,  at  the  time  of  making  the  contract,  undis- 
closed, he  may  yet  be  held  liable  upon  it  when  discovered.*  This 
general  doctrine,  with  its  application  and  limitations,  has  already 
been  considered.' 

§  1048.  How  when  exclusive  Credit  given  to  the  Factor. 
But  where  the  other  party,  knowing  the  principal,  has  seen  fit  to 
give  exclusive  credit  to  the  factor,  he  cannot  afterwards  resort  to 
the  principal,  even  though  the  factor  becomes  insolvent.* 

BIGHTS    OF   THIRD   PERSONS   AGAINST   FACTOR. 

§  1049.  Same  as  in  other  Cases.  The  liability  of  the  factor 
to  the  other  party  rests  upon  the  same  principles  as  in  other 
cases.     Thus  if  the  factor  conceals  his  principal,*  or  pledges  his 

1  Lobdell  V.  Baker,  1  Mete.  (Mass.)  »  See  ante,  %  695,  et  teq. 

193,    35    Am.    Dec.    358;    Daylight  « Paige  v.  Stone,  10  Mete.  (Mass.) 

Burner  Co.  v.  Odlin,  61  N.  H.  56,  13  160,  43  Am.   Dec.   420;  MeCullough 

Am.  Rep.  45;  Dias  v.  Chiekering,  64  t>.  Thompson,  45  N.  Y.  Super. Ct.  449 

Md.  348,  54  Am.   Rep.  770;  Higgins  Chapman    v.    Durant,    10   Mass,   47 

e.  McCrea,  116  U.  8.  671.  Tudor   e.   Whiting,   12    Mass.    212 

»  Taintor  v.  Prendergaat,  3  Hill  (N.  French  «.  Price,  24  Pick.  (Mass.)  13 

T.)72,  38  Am.   Dec.   618;   Pentz  v.  James  v.  Bixby,  11   Mass.    34.     See 

Stanton,  10  Wend.  (N.  Y.)  271,  25  anU,  §  698. 

Am.  Dec.  558;  Raymond  v.  Crown,  »  Cobb  «.  Knapp,  71  N.  Y.  348,  27 

&c.  Mills,  2  Mete.  (Mass.)  319.  Am,  Rep.   51;  Raymond  v.   Crown, 

858 


Chap.  IV.]  FACTOKS.  §  1051. 

own  personal  credit,'  or  violates  his  implied  warranty  of  author- 
ity,' he  is  liable  as  in  the  case  of  any  other  agent. 

§  1050.  When  liable  for  Conversion.  A  factor  who  has  re- 
ceived goods  from  oue  not  the  owner,  or  from  one  having  no 
authority  to  dispose  of  them,  and  who,  after  notice  of  his  con- 
signor's lack  of  authority  and  without  the  authority  of  the  true 
owner,  proceeds  to  sell  the  goods,  or  refuses  to  recognize  the 
owner's  title  to  them  or  their  proceeds,  or  who  sells  them  as  the 
principal,  may  be  held  liable  to  the  owner  as  for  a  conversion  of 
them  ;  *  but  where  the  factor,  acting  in  good  faith  and  in  the 
regular  course  of  business,  has  sold  the  goods  as  agent  merely, 
and  has  paid  over  the  proceeds  to  his  consignor  without  notice 
that  he  was  not  the  owner,  he  can  not  subsequently  be  held  liable 
to  the  owner  for  a  conversion.* 

§  1051.  How  in  Case  of  Foreign  Factor.  It  was  formerly  held 
that  where  the  factor  acts  for  a  foreign  principal,  he  is  personally 
liable  upon  all  contracts  made  by  him  for  such  principal,  and 
this  without  any  distinction  whether  the  factor  describes  himself 
in  th®  contract  as  agent  or  not.  This  rule  rested  upon  the  pre- 
sumption that  credit  was  given  to  the  factor  personally.* 

In  modern  cases,  however,  this  arbitrary  presumption  does  not 
prevail,  and  while  the  fact  that  the  principal  is  a  foreigner  may 
properly  be  taken  into  consideration,  the  true  rule  seems  to  bo 
that  it  is  in  all  cases  a  question  of  fact,  to  be  determined  from 

&c.  Mills,  2  Mete.  (Mass.)  819;  Nixon  several  months,  and  an  agreement  in 

«.  Downey,  49  Iowa,  166;  Baldwin  the  meantime  between  the  principal 

V.  Leonard.  89  Vt.  260,  94  Am,  Dec.  and  factor  for  a  new  appropriation  of 

824.  the  fund  for  the  benefit  of  the  latter. 

*  McCuUough  «.  Thompson,  45  N.  Lowery  v.  Steward,  25  N.  Y.  239,  83 

Y     Super    446;    Nixon  v.   Downey.  Am.  Dec.  346. 

supra.  «  See  ante,  §§  541-550. 

A  draft  by  the  principal  on  the  ^  See    Roach    v.    Turk,    9    Heisk. 

factor  for  sum  payable  to  third  per-  (Tena.)  708,  24  Am.  Rep.  360;  Saltus 

son  out  of  proceeds  of  goods  when  v.  Everett,  20  Wend.  (N.  Y.)  263,  32 

the  same  should  be  sold,  is  a  specific  Am.  Dec.  541 ;  Hollins  v.  Fowler,  L. 

appropriation  to  the  use  of  the  latter,  R.  7  H.  L.  757,  14  Eng.  Rep.  138. 

and  binds  the  factor  to  retain  so  much  *  Roach  v.  Turk,  9  Heisk.   (Tenn.) 

of    the  proceeds  as  is  necessary  to  708,   24  Am.    Rep.    360,   overruling 

meet  the  draft;  and  the  obligation  of  Taylor  v.  Pope,  5  Cold.  (Tenn.)  413. 

the  factor  to  the  payee  is  not  dis-  •  See  Story  on  Agency,  §  268,  and 

charged  by  the  failure  of  the  payee  cases  cited, 
to  present  the  draft  for  payment  for 

859 


§  1052.  THE  LAW  OF  AGENCY.  [Book  V. 

the  terms  of  the  particular  contract  and  the  surrounding  circum- 
stances of  the  case,  whether  the  credit  was  given  to  the  factor 
personally  or  not.* 

A  principal  residing  in  another  of  the  United  States  than  that 
in  which  the  factor  resides,  is  not  a  foreign  principal  in  contem- 
plation of  this  rule.* 


HOW   RELATION   TERMINATED. 

§  1052.  As  in  other  Cases  of  Agency.  The  authority  of  the 
factor  to  sell  the  goods  may  be  revoked,  like  that  of  any  other 
agent,  if  no  advances  have  been  made  upon  them,  at  any  time 
before  the  sale  is  made.*  Where,  however,  the  factor  has  made 
advances  or  incurred  liabilities  in  respect  of  the  goods,  the  prin- 
cipal can  not,  as  has  been  seen,  deprive  the  factor  of  his  right  to 
sell  enough  to  reimburse  himself,  without  first  paying  or  tender- 
ing to  the  factor  the  amount  due  to  him.* 

The  factor's  power  to  sell  for  his  own  reimbursement  is  a 
power  coupled  with  an  interest,  and  is  therefore  not  revoked  by 
the  principal's  death  or  other  disability.' 

So  the  factor  being  under  no  obligation  to  accept  the  agency, 
is  under  no  obligation  to  continue  it,  and  may  in  general  re- 
nounce the  agency  at  any  time.*  But  this  right  must  be  exer- 
cised with  due  regard  to  the  interests  of  the  principal,  and  the 
factor  having  accepted  the  goods  can  not  arbitrarily  and  sum- 
marily relieve  himself  of  the  responsibility  for  their  custody  and 
care.  If  he  desires  to  terminate  the  agency  he  must  give  to  the 
principal  reasonable  notice  to  that  effect,  and  must  afford  to  the 

*  Maury  v.  Ranger,  38  La.  Ann.  •  Knapp  v.  Alvord,  10  Paige  (N.Y.) 
485,  58  Am.  Rep.  197;  Bray  «.  Ket-  205,  40  Am.  Dec.  341;  Bergen  v.  Ben- 
tell,  1  Allen  (Mass.)  80;  Goldsmith  v.  nett,  1  Cairnes  Gas.  (N.  Y.)  1,  2  Am. 
Manheim,  109  Mass.  187;  Rogers  v.  Dec.  281;  Raymond  v.  Squire,  11 
March,  33  Me.  106;  Oelricks  v.  Ford,  Johns.  (N.  Y.)  47;  Hunt  v.  Rousman- 
23  How.  (U.  S.)  49;  Kaulback  V.  ier,  8  Wheat.  (U.  S.)  174.  Where  the 
Churchill,  59  N.  H.  296.  lien  of  the  factor  attaches  before  the 

*  Vawter  ».  Baker,  23  Ind.  63.  principal's  death,  that  event  does  not 
•Farmer©.  Robinson,  2 Camp.  339,      defeat  it.     Hammonds  v.  Barclay,  2 

note;  Scott «.  Rogers,  81  N.  Y.  676.       East.  227. 

*  See  ante,  %  1009.  •  DuPeirat  v.  Wolfe,  29  N.  Y.  436. 

860 


Chap.  lY.l 


FACTORS. 


§  1052 


latter  reasonable  time  and  opportunity  to  resume  possession  or  to 
make  other  arrangements.* 

The  factor's  special  interest  in  the  goods  by  reason  of  his 
advances  upon  them  is  not  terminated  by  his  death  or  disability,' 
although  his  general  authority,  as  in  other  cases,  would  be.' 

A  factor's  authority,  like  that  of  other  agents,  is  terminated  by 
the  completion  of  his  undertaking,  or  by  the  expiration  of  the 
time,  if  any,  fixed  for  its  continuance.* 


1  Edwards  on  Factors  &  Brokers, 
§90. 

« Hammonds  «.  Barclay,  2  East. 
227. 

3  See  ante,  §  249.  A  factor  who 
receives  goods,  and,  in  his  own  name, 
ships  them  to  another  marltet  to  be 
sold  by  a  subagent,  cannot  collect  the 
proceeds  against  the  will  of  the 
owner.    After  the  sale,  the  subagent 


is  the  debtor  and  not  the  trustee  of 
the  principal.  In  such  a  case  the 
death  of  the  factor  is  a  revocation  of 
his  authority;  and  if  his  administrator 
receives  the  fund  from  the  subagent, 
he  receives  it  as  the  agent  of  the  prin- 
cipal. Jackson  Ins.  Co.  v.  Partee,  9 
Heisk.  (Tenn.)296 
«  See  ante,  §§  200-202. 


861 


APPENDIX. 


STATUTORY  PROVISIONS. 

In  several  of  the  States,  the  law  of  agency  has  been,  to  a  greater  or  les^ 
extent,  made  the  subject  of  statutory  enactment.  The  most  important  of 
these  provisions  are  here  appended. 


DAKOTA  AND  CALIFORNIA. 

The  provisions  of  Dakota  code  are  copied  from  those  of  California.  The 
Dalsota  sections  are  here  given,  followed  respectively  by  the  corresponding 
section  number  of  the  California  code. 

Arttcxk  I.     Dkfinition  op  Agency. 

§  1337.  Agency  defined.  An  aoient  is  one  who  represents  another 
called  the  principal,  in  dealings  with  third  persons.  Such  representation  is 
called  agency. 

Cal.  229.5. 

§  1838.     Qualifications.     Any  person,  having  capacity  to  contract,  may 
appoint  an  agent;  and  any  person  may  be  an  agent 
Cal.  2296. 

§  1339.     Special  and  general.     An  agent  for  a  particular  act  or  trans- 
action is  called  a  special  agent.     All  others  are  general  ascents. 
Cal.  2297.  o  t, 

%  1340.     Classified.     An  agency  is  either  actual  or  ostensible. 
Cal.  2298. 

§  1341      Actual  agency.     An  agency  is  actual  when  the  agent  is  really 
employed  by  the  principal. 
Cal"  2299. 

§  1343.  Ostensible.  An  agency  is  ostensible  when  the  principal  inten- 
tionally, or  by  want  of  ordinary  care,  causes  a  third  person  to  believe  anotlier 
to  be  his  agent  who  is  not  really  employed  by  him. 

CaL3300. 

Articlb  II.    Authority  of  Aqknts. 

1 1343.  What  powers.  An  agent  may  be  authorized  to  do  any  act^ 
which  the  principal  raiji:]^  do,  except  those  to  which  the  latter  is  bound  to 
give  his  personal  attention. 

Cal.  2304. 

§  1344.  Any  lawful  act.  Every  act  which,  according  to  this  Code, 
may  be  done  by  or  to  any  person,  may  be  done  by  or  to  the  a?ent  of  such  per- 
son for  that  purpose,  unless  a  contrary  intention  clearly  appears. 

Cal.  2305. 

§  1H45.  Not  to  defraud  pi'ineipal.  An  accent  can  never  have  authority, 
eithi'T  actual  or  osteu.sible,  to  do  .lu  act  which  is,  and  is  known  or  suspected 
by  the  person  with  whom  he  deals  to  be,  a  fraud  upon  the  principal 

Cal.  230fl. 

8^8 


864:  THE   LAW   OF    AGENCY. 

§  1346.    How  authorized.    An  agency  may  be  created,  and  an  authority 
may  be  conferred,  by  a  precedent  authorization  or  a  subsequent  ratification. 
Cal.  3307. 

§  1347.  No  consideration.  A  consideration  is  not  necessary  to  make 
an  authority,  whether  precedent  or  subsequent,  binding  upon  the  principal. 

§  1348.  Form  of  authority.  An  oral  authorization  is  sufficient  for  any 
purpose,  except  that  an  authority  to  enter  into  a  contract  required  by  law  to 
be  in  writing  can  only  be  given  by  an  instrument  in  writing. 

Cal.  2309. 

§  1349.  Form  of  ratification.  A  ratification  can  be  made  only  in  the 
manner  that  would  have  been  necessary  to  confer  an  original  authority  for 
the  act  ratified,  or,  where  an  oral  authorization  would  suffice,  by  accepting 
ur  retaining  the  benefit  of  the  act,  with  notice  thereof. 

Cal  2310. 

§  1350.     Part  includes  whole.    Ratification  of  part  of  an  indivisible 
transaction  is  a  ratification  of  the  whole. 
Cal.  2311. 

§  1351.   When  void.  A  ratification  is  not  valid  unless,  at  the  time  of  ratify 
ing  the  act  done,  the  principal  has  power  to  confer  authority  for  such  an  act. 
Oal.  2312. 

§  1353.    Retroactive,  limited.    No  [unjauthorized  act  can  be  made 
valid,  retroactively,  to  the  prejudice  of  third  persons,  without  their  consent. 
CaL  2813. 

§  1353.  Rescission  of  ratification.  A  ratification  may  be  rescinded 
when  made  without  such  consent  as  is  required  in  a  contract,  or  with  an 
imperfect  knowledge  of  the  material  facts  of  the  transaction  ratified,  but  not 
otherwise. 

Cal.  2314. 

§  1354.     Authority.    An  agent  has  such  authority  as  the  principal, 
actually  or  ostensibly,  confers  upon  him. 
Cal.  2815. 

§  1355.  Actual.  Actual  authority  is  such  as  a  principal  intentionally 
confers  upon  the  agent,  or  intentionally  or  by  want  of  ordinary  care  allows 
the  agent  to  believe  himself  to  possess. 

Cal.  2816. 

§  1356.  Ostensible.  Ostensible  authority  is  such  as  a  principal  inten 
tionally,  or  by  want  of  ordinary  care,  causes  or  allows  a  third  person  to  be- 
lieve the  agent  to  possess. 

Cal.  2317. 

S  1357.  Legal  construction.  Every  agent  has  actually  such  authority 
as  is  defined  by  this  title,  unless  specially  deprived  thereof  by  his  principal, 
'And  has  even  then  such  authority  ostensibly,  except  as  to  persons  who  have 
actiial  or  constructive  notice  of  the  restriction  upon  his  authority. 

Cal.  2318. 

§  1358.     Necessary  authority.    An  agent  has  authority: 

1.  To  do  everything  necessary  or  proper  and  usual  in  the  ordinary  course 
of  business  for  effecting  the  purpose  of  his  agency ;  and, 

2.  To  make  a  representation  respecting  any  matter  of  fact  not  including 
the  terms  of  his  authority,  but  upon  which  his  right  to  use  his  authority  de- 
pends, and  the  truth  of  which  cannot  be  determined  by  the  use  of  reasonable 
(liliffence  on  the  part  of  the  person  to  whom  the  representation  is  made. 

CaL  2319. 

§  1359.  May  disobey.  An  agent  has  power  to  disobey  instructions  in 
dealing  with  the  sulgect  of  the  agency  in  cases  where  it  is  clearly  for  the  in- 
terest of  his  principal  that  he  should  do  so,  and  there  is  not  time  to  communi- 
cate with  the  principal. 

Cat.  2320. 

§  1360.  Construction.  When  an  authority  is  given  partly  in  general 
and  partly  in  specific  terms,  the  general  authority  gives  no  higher  powers  than 
those  specifically  mentioned. 


STATUTORY    TRO VISIONS.  8G5 

§  1861.  Exceptions  to  general  power.  An  authority  expressed  in 
general  terms,  however  broad,  does  not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course  of  business  to 
do  SO; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  Todo  any  act  wliich  a  trustee  is  forbidden  to  do  by  article  two  of 
chapter  one  of  the  last  article. 

Cal.  2323. 

§  1362.  Implied  authority.  An  authority  to  sell  personal  property 
includes  authority  to  warrant  the  title  of  the  principal,  and  the  quality  and 
quantity  of  the  properly. 

Cal.  "2323. 

§  1803.     Same  as  to   realty.     An  authority  to  sell   and  convey  real 
propi-rly  includes  authority  to  give  the  usual  covenants  of  warranty. 
Cal  2;;24. 

§  1364.  Receive  price.  A  general  agent  to  sell,  who  is  intrusted  by  the 
principal  with  the  possession  of  the  things  sold,  has  authority  to  receive  the 
price. 

Cal.  2325. 

§  1365.     Limited.     A  special  agent  to  sell  has  authority  to  receive  the 
price  on  delivery  of  the  things  sold,  but  not  afterwards. 
Cal.  2328. 


Article  III.     Mutual  Obligations  of  Principals  and  Third  Persons. 

§  1366.  Principal  affected  by  agent.  An  agent  represents  his  princi- 
pal for  all  purposes  within  the  s^cope  of  his  actual  or  ostensible  authority  and 
all  the  rights  and  liabilities  which  would  accrue  to  the  agent  from  transactions 
within  such  limit,  if  they  had  been  entered  into  on  his  own  account,  accrue 
to  the  principal. 

Cal.  2330 

§  1367.  Incomplete  execution.  A  principal  is  bound  by  an  incomplete 
execution  of  an  authority  when  it  is  consistent  with  the  whole  purpose  and 
scope  thereof,  but  not  otherwise. 

Cal.  2381. 

§  1308.  Notice  to  both  presumed.  As  against  a  principal,  both  prin- 
cipal and  agent  are  deemed  to  have  notice  of  whatever  either  has  notice  of, 
and  ought,  in  good  faith  and  the  exercise  of  ordinary  care  and  diligence,  to 
communicate  to  the  other. 

Cal.  2a32. 

I  1369.  Exceeded  authority.  When  an  agent  exceeds  his  autliority 
his  principal  is  bound  by  his  authorized  acts  so  far  only  as  they  can  be  plainly 
geparated  from  those  which  are  unauthorized. 

Cal.  2333. 

§  1370.  Bound  by  certain  acts.  A  principal  is  bound  by  acts  of  his 
agent,  under  a  merely  ostensible  authority,  to  those  persons  only  who  have  in 
good  faith  and  without  ordinary  negligence,  incurred  a  liability,  or  parted  with 
value,  upon  the  faith  thereof. 

Cal.  2334. 

§  1371.  Principal  exonerated.  If  exclusive  credit  is  given  to  an 
agent  by  the  per.-^on  dealing  with  him,  his  principal  is  exonerated  by  payment 
or  other  gaiisfac'.ion  made  by  him  to  his  agi'ot,  in  good  faith,  before  receiving 
notice  of  the  creditor's  election  to  hold  him  responsible. 

Cal.  2335. 

§  1372.  Set-offs  against.  One  who  deals  with  an  agent,  without  know- 
ing or  havini^-  reason  lo  lieiievf  that  ihe  agent  acts  as  sucli  in  the  transaction, 
may  set  off,  against  any  claim  of  the  principal  arising  out  of  the  same,  all 
claims  which  he  might  have  set  off  agaiust  the  agent  before  notice  of  the 
agency. 

Cal.  2336. 

65 


866  THE   LAW  OF    AGENCY. 

§  1373.  Construction  of  contract.  Any  instrument  within  the  scope 
of  his  authority,  by  which  an  agent  intends  to  bind  his  principal,  does  bind 
him,  if  such  intent  is  plainly  inferable  from  the  instrument  itself. 

Cal.  2387. 

§  1374.  Agent'8  negligence.  Unless  required  by  or  under  the  author- 
ity of  law  to  employ  that  particular  agent,  a  principal  is  responsible  to  third 
persons  for  the  negligence  of  his  agent  in  the  transaction  of  the  business  of 
the  agency,  including  wrongful  acts  committed  by  such  agent  in  and  as  a  part 
of  the  transaction  of  such  business,  and  for  his  willful  omission  to  fulfill  the 
obligations  of  the  principal. 

Cal.  2388. 

§  1375.  For  other  wrongs.  A  principal  is  responsible  for  no  other 
wrongs  committed  by  his  agent  than  those  mentioned  in  the  last  section,  unless 
he  has  authorized  or  ratified  them,  even  though  they  are  committed  while  the 
agent  is  engaged  in  his  service. 

Cal.  2839. 

ABTiciiB  IV.    Oblioations  of  Agents  to  Third  Persons. 

§  1876.  Warranty  of  authority.  One  who  assumes  to  act  as  an  agent, 
thereby  warrants,  to  all  who  deal  with  him  in  that  capacity,  that  he  has  the 
authority  which  he  assumes. 

Cal.  2842. 

§  1377.  Agent  to  third  persons.  One  who  assumes  to  act  as  an  agent 
is  responsible  to  third  persons  as  a  principal  for  his  acts  in  the  course  of  his 
agency,  in  any  of  the  following  cases,  and  in  no  others  : 

1.  When,  with  his  consent,  credit  is  given  to  him  personally  in  a  trans- 
action; .     1     , 

2.  When  he  enters  into  a  written  contract  in  the  name  of  his  prmcipal, 
without  believing,  in  good  faith,  that  he  has  authority  to  do  so;  or, 

8.    Wheu  his  acts  are  wrongful  in  their  nature. 

Cal.  234fc. 

I  1378.  Surrender  to  third  party.  If  an  agent  receives  anything  for 
the  benefit  of  his  principal,  to  the  possession  of  which  another  person  is 
entitled,  he  must,  on  demand,  surrender  it  to  such  person,  or  so  much  of  it 
as  he  hap  unde-  his  control  at  the  time  of  demand,  on  being  indemnified  for 
any  advance  which  he  has  made  to  his  principal  in  good  faith,  on  account  of 
the  same;  and  is  responsible  therefor,  if,  after  notice  from  the  owner,  he 
delivers  it  to  his  principal. 

Cal.  8344. 

§  1379.  Incapacity  to  contract.  The  provisions  of  this  article  are 
subject  to  the  provisions  of  part  one  of  th'i  first  division  of  this  Code. 

Cal.  2345. 

Artiolk  V. — Delegation  of  Agency. 

^  1380.  When  authorized.  An  agent,  unless  specially  prohibited  by 
his  principal  to  do  so,  can  delegate  his  powers  to  another  person  in  any  of  the 
following  cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the  subagent  can, 
lawfully  perform; 

8,     When  it  is  the  usage  of  the  place  to  delegate  such  powers;  or, 

4     When  such  delegation  is  specially  authorized  by  the  principal. 

Cal.  2849. 

6  1381.  Agent  is  principal.  If  an  agent  employs  a  subagent  with- 
out authority,  the  former  is  a  principal  and  the  latter  his  agent,  and  the  prin- 
cipal of  the  former  has  no  connection  with  the  latter. 

Cal.  2350. 

1383.  Rightful  subagent.  A  subagent,  lawfully  appointed,  repre- 
sents the  principal  in  like  manner  with  the  original  agent;  and  the  original 
agent  is  not  responsible  to  third  persons  for  the  acts  of  the  subagent. 

CaL  8851. 


8TATUT0KY    PROVISIONS.  S67 

Article  VI. — Termination  of  Agency. 

§  1383.  Classiflod  causes.  An  agency  is  terminated,  as  to  erery  pep- 
son  having  notice  thereof,  by; 

1.  The  expiration  of  its  term; 

2.  The  extinction  of  its  subject; 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agent  to  act  as  such. 

Cal.  2355. 

§  1384.  Other  causes.  Unless  the  power  of  an  agent  is  coupled  with 
an  interest  in  the  subject  of  the  agency,  it  is  terminated  as  to  every  person 
having  notice  thereof,  by: 

1.  Its  revocation  by  the  principal; 

2.  His  death;  or, 

3.  His  incapacity  to  contract. 
Cal.  2356. 

PARTICULAR   AGENCIES. 

Article  I.    Auctioneers. 

§  1385  Prom  seller,  limited.  An  auctioneer,  in  the  absence  of 
special  authorizalion  or  usage  to  the  contrary,  has  authority  from  the  seller 
only  as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  stU  for  cash  only,  except  such  articles  as  are  usually  sold  on  credit 
at  auction; 

3.  To  warrant  in  like  manner  with  other  agents  to  sell,  according  to 
section  one  thousand  three  hundred  and  sixty-two; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  thing  sold  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatsoever  else  is  necessary,  or  proper  and  usual,  in  the  ordi- 
nary course  of  business  for  effecting  these  purposes. 

Cal.  2362. 

Sj  1386.  To  bind  both  parties.  An  auctioneer  has  authority  from  a 
bidder  at  the  auction,  as  well  as  from  the  seller,  to  bind  both  by  a  memo- 
randum of  the  contract  as  prescribed  in  the  title  on  sale. 

Cal.  2363. 

Article  II.    Factors. 

§  1387.  Defined.  A  factor  is  an  agent  who  is  employed  to  buy  or  sell 
property  in  his  own  name,  and  who  is  intrusted  by  his  principal  with  the 
possession  thereof,  as  defined  in  section  one  thousand  one  hundred  and  sixty- 
eight. 

Cal.  2367. 

§  1388.  Power  beyond  agent.  In  addition  to  the  authority  of  agents 
In  general,  a  factor  has  actual  authority  from  his  principal,  unless  specially 
restricted : 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale,  except  such 
things  as  it  is  contrary  to  usage  to  sell  on  credit;  but  not  to  pledge,  mortgage, 
or  barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but  not  to  any 
person  in  an  independent  employment. 

Cat.  236S. 

§  1389.  Ostensible  authority.  A  factor  has  ostensible  authority  to 
deal  with  the  property  of  his  principal  as  his  own,  in  transactions  with  per- 
sons not  having  notice  of  the  actual  ownership. 

Cal.  2369. 


868  THE    LAW    OF    AGENCY. 


GEORGIA. 

The  first  section  numbers  are  those  of  the  Codes  of  1882  and  1873.    Those  in 
parentheses  are  respectively  those  of  the  Codes  of  1868  and  1863. 

Article  I.     Relation  op  Principal  and  Agent  among  Themselves. 

§2178.  (2153.)  (2157.)  How  it  arises.  The  relation  of  principal  and 
ageul  arises  wherever  one  person,  expressly  or  by  implication,  authorizes 
another  to  act  for  him,  or  subsequently  ratifies  the  acts  of  another  in  his 
behalf, 

§  2179.  (2158.)  (2158.)  What  may  be  done  by  agent.  "Whatever 
one  miiy  do  himself  may  be  done  by  an  agent,  except  such  personal  trusts  in 
which  special  confidence  is  placed  on  the  skill,  discretion,  or  judgment  of  the 
person  called  in  to  act;  so  an  agent  may  not  delegate  his  authority  to  another 
unless  specially  empowered  to  do  so. 

§  2180  (2154.)  [Executors,  etc.,  may  convey  by  attorney  in  fact. 
Executors,  administrators,  guardians  and  trustees  are  authorized  to  sell  and 
convey  property,  by  attorneys  in  fact,  in  all  cases  where  they  may  lawfully 
sell  and  convey  in  person.] 

§  2181.  (2155.)  (2159.)  Who  may  be  agent.  Any  person  may  be 
appointed  an  agent  who  is  of  sound  mind;  so  a  priucipal  is  bound  by  the  acts 
of  his  infant  agent,  but  a  feme  covert  cannot  be  an  agent  for  another  than  her 
husband  except  by  his  consent,  in  which  case  he  is  bound  by  her  acts. 

§2182.  (2156.)  (2161).)  Agency  created,  how— agents  of  corpora- 
tions. The  act  creating  the  agency  must  be  executed  with  the  same  formality 
(and  need  have  no  more)  as  the  law  prescribes  for  the  execution  of  the  act  for 
which  the  agency  is  created.  A  corporation  may  create  an  agent  in  its  usual 
mode  of  transacting  business,  and  without  its  corporate  seal. 

§2183.  (2157.)  (2161.)  Revocation.  Generally,  an  agency  is  revocable 
at  the  will  of  the  principal.  Tiie  appointment  of  a  new  agent  for  the  perform- 
ance of  the  same  act,  or  the  death  of  either  principal  or  agent  revokes  the 
power.  If,  however,  the  power  is  coupled  with  an  interest  in  the  agent  him- 
self it  is  not  revocable  at  will;  and  in  all  cases  the  agent  might  recover  from 
the  principal  for  an  unreasonable  revocation,  any  damages  he  may  have  suf- 
fered by  reason  thereof. 

§  2184.  (2158.)  (2102.)  Agent  limited  by  his  authority.  The  agent 
must  act  within  the  authority  granted  to  him,  reasonably  interpreted;  if  he 
exceeds  or  violates  his  instructions,  he  does  it  at  his  own  risk,  the  principal 
having  the  privilege  of  affirmiug  or  dissenting,  as  his  interest  may  dictate.  In 
cases  where  the  power  is  coupled  with  an  interest  in  the  agent,  unreasonable 
instructions,  detrimental  to  the  agent's  interest,  may  be  disregarded. 

§  2185.  (2159.)  (2163.)  Diligence  of  an  agent.  An  agent  for  hire  is 
bound  to  exercise,  about  the  business  of  his  principal,  that  ordinary  care,  skill 
and  diligence  required  of  a  bailee  for  hire.  A  voluntary  agent,  without  hire 
or  reward,  is  liable  only  for  gross  neglect. 

§2186.  (2160.)  (2164.)  Agent  cannot  buy  or  sell  for  himself.  With- 
out the  express  consent  of  the  priucipal,  after  a  full  knowledge  of  all  the  facts, 
an  agent  employed  to  sell,  cannot  be  himself  the  purchaser;  and  an  agent  to 
buy,  cannot  be  himself  the  seller. 

§  2187.  (2161.)  (2165.)  Personal  profit.  The  agent  must  not  make  a 
personal  profit  from  his  principal's  property  ;  for  all  such  he  is  bound  to 
account. 

§  2188.  (2163.)  (2166.)  Estoppel.  An  agent  cannot  dispute  his  princi- 
pal's title,  except  in  such  cases  where  legal  proceedings,  at  the  instances  of 
others,  have  been  commenced  against  him. 


STATUTORY   PEOVI8ION8.  869 

§2189.  ((2163.)  (2167.)  Agent  of  several.  Where  several  persons 
appoint  an  agent  to  do  an  act  fur  their  joint  benefit,  the  instructions  of  one, 
not  inconsistent  with  the  general  directions,  shall  protect  the  agent  in  his  act. 

§  2190.  (2164.)  (2168.)  Commission  and  expenses.  An  agent  who 
has  discharged  his  duty  is  entitled  to  his  commission  and  all  necessary  expenses 
incurred  about  the  business  of  his  principal.  If  he  has  violated  his  engage- 
ment, he  is  entitled  to  no  comminsion. 

§  2191.  (2165.)  (2169.)  Illegal  purpose.  No  rights  can  arise  to  either 
party  out  of  an  agency  created  for  an  illegal  purpose. 

§  2193.  (2166.)  (2170.)  Effect  of  ratification.  A  ratification  by  the 
principal  relates  back  to  the  act  ratified,  and  takes  effect  as  if  originally  au- 
thorized. A  ratification  may  be  express,  or  implied  from  the  acts  or  silence 
of  the  principal.     A  ratification  once  made  cannot  be  revoked. 

§2193.  (2167.)  (2171.)  Of  mingling  goods.  An  agent,  by  willfully 
mingling  his  own  goods  with  those  of  his  principal,  does  not  create  a  tenancy 
in  common,  but  if  incapable  of  separation  the  whole  belongs  to  the  principal. 

Aetiolk  II.    Rights  and  Liabilities  of  Pkencipal  as  to  Thxbd 

Pehbons. 

§  2194.  (2168.)  (2172.)  Principal,  how  far  bound.  The  principal  is 
bouud  by  all  the  acts  of  his  agent  within  the  scope  of  his  authority;  if  the 
agent  exceeds  his  authority  the  principal  cannot  ratify  in  part  and  repudiate 
in  part;  he  must  adopt  either  the  whole  or  none. 

§2195.  (2169.)  (2173.)  Forms  immaterial.  The  form  in  which  the 
agent  acts  is  immaterial ;  if  the  principal's  name  is  disclosed,  and  the  agent 
professes  to  act  for  him,  it  would  be  held  to  be  the  act  of  the  principal. 

§  2196.  (2170.)  (2174.)  Extent  of  authority.  The  agent's  authority 
will  be  constructed  to  include  all  necessary  and  usual  means  for  effectually 
executing  it.  Private  instructions  or  limitations  not  known  to  persons  dealing 
with  a  general  agent  cannot  affect  them.  In  special  agencies  for  a  particular 
purpose,  persons  dealing  with  the  agent  should  examine  his  authority. 

§2197.  (2171.)  (2175.)  Failing  to  disclose  principal.  If  an  agent 
fails  to  disclose  his  principal,  yet,  when  discovered,  the  person  dealing  with 
the  agent  may  go  directly  upon  the  principal,  under  the  contract,  unless  the 
principal  shall  have  previously  accounted  and  settled  with  the  agent. 

§2198  (2172.)  (2176.)  Credit  given  to  agent.  If  the  credit  is  given 
to  the  agent  by  the  choice  of  the  seller,  he  cannot  afterward  demand  payment 
of  the  principal. 

§  2199.  (2173.)  (2177.)  Representations  by  agent.  The  principal 
is  bound  by  all  representations  made  by  his  agent  in  the  business  of  his  agency, 
and  also  by  his  willful  concealment  of  material  facts,  although  they  are  un- 
known to  the  principal,  and  known  only  by  the  agent. 

§  2200  (2174.)  (2178.)  Notice  to.  Notice  to  the  agent  of  any  matter 
connected  with  his  agency  is  notice  to  the  principal. 

§2201.    (2175.)    (2179.)    Principal  bound  for  neglect  and  fraud. 

The  principal  is  bound  for  the  care,  diligence  and  fidelity  of  his  agent  in  his 
business,  and  hence  he  is  bound  for  the  neglect  and  fraud  of  his  agent  in  the 
transaction  of  such  business. 

§2202.  (2176.)  (2180.)  Injuries  by  another  agent.  The  principal  is 
not  liable  to  one  agent  for  injuries  arising  from  the  negligence  or  misconduct 
of  other  agents  about  the  same  business;  the  exception  in  case  of  railroads  has 
been  previously  stated. 

§  2203.  (2177.)  (2181.)  Trespass  of  agent.  The  principal  is  not  lia- 
ble for  the  willful  trespass  of  his  agent,  unless  done  by  his  command  or  as- 
sented to  by  him. 


870  THE   LAW   OF   AGENCY. 

§2204.  (2178.)  (2182.)  Benefit  of  contract  to  principal.  The  prin- 
cipal shall  have  advantage  of  hia  agent's  contracts  in  the  same  manner  as  he 
is  bound  by  them,  so  far  as  they  come  within  the  scope  of  his  agency.  If, 
however,  the  agency  has  been  concealed,  the  party  dealing  with  him  may  set 
up  any  defense  against  the  principal  which  he  has  against  the  agent. 

§2205.  (2179)  (3183.)  Money  iUegally  paid,  etc.  The  principal 
may  recover  back  money  paid  illegally,  or  by  mistake  of  his  agent  or  goods 
wrongfully  transferred  by  the  agent,  the  party  leceiving  the  goods  having 
notice  of  the  agent's  want  of  authority  or  willful  misconduct. 

§2206.  (2180.)  (2184.)  Agent  is  a  competent  witness.  The  agent 
is  a  competent  witness  either  for  or  against  his  principal.  His  interest  goes  to 
his  credit.  The  declarations  of  the  agent  as  to  the  business  transacted  by  him 
are  not  admissible  against  his  principal,  unless  they  were  a  part  of  the  negoti- 
ation, and  constituting  the  res  gestcB,  or  else  the  agent  be  dead. 

Akticle  III.    Rights  and  Liabilities  of  Agent  as  to  Thikd  Persons. 

§  2207.  (2181.)  (2185.)  Agent  may  act  under  this  Code  for  princi- 
pal. Any  act  authorized  or  required  to  be  done  under  this  Code  by  any  per- 
son in  the  prosecution  of  his  legal  remedies,  mny  be  done  by  his  agents;  and 
for  this  purpose  he  is  authorized  to  make  an  affidavit  and  execute  any  bond 
required,  though  his  agency  be  created  by  parol.  In  all  such  cases,  if  the 
principal  repudiate  the  act  of  the  agent,  the  agent  shall  be  personally  bound, 
together  with  his  sureties. 

§  2208.  (2183.)  (2186.)  Money  paid  by  mistake  may  be  recovered. 
If  money  be  paid  to  an  agent  by  mistake,  and  he  in  good  faith  pays  it  over  to 
his  principal,  he  shall  not  thereafter  be  personally  liable  therefor.  In  all 
other  cases,  he  is  liable  for  its  repayment.  If  money  be  paid  by  an  agent  by 
mistake,  he  may  recover  it  back  in  his  own  name. 

§2209.  (2183)  (2187.)  When  he  has  a  right  of  action.  Generally 
an  agent  has  no  right  of  action  on  contracts  made  for  his  principal.  The  fol- 
lowing are  exceptions: 

1.  A  factor  contracting  on  his  own  credit. 

2.  Where  promissory  notes  or  other  evidences  of  debt  are  made  payable  to 
an  agent  of  a  corporation  or  joint  stock  company. 

3.  In  all  cases  where  the  contract  is  made  with  the  agent  in  his  individual 
name,  though  his  agency  be  known. 

4.  Auctioneers  may  sue  in  their  own  name  for  goods  sold  by  them. 

5.  In  cases  of  agency  coupled  with  an  interest  in  the  agent  known  to  tht 
party  contracting  with  him.  In  all  these  cases,  payment  to  the  principal  bfe 
fore  notice  of  the  agent's  claim  is  a  good  defense. 

§2310.  (2184)  (2188.)  For  interference  with  his  possession.  Aii 
agent  having  possession,  actual  or  constructive,  of  the  property  of  his  princi- 
pal, has  a  right  of  action  for  any  interference  with  that  possession  by  thiro 
persons. 

§  2211.  (2185.)  (2189.)  When  responsible  for  credit  given.  Where 
the  agency  is  known,  and  the  credit  is  not  expressly  given  to  the  agent,  he  ia 
not  personally  responsible  upon  the  contract.  The  question  to  whom  the 
credit  is  given  is  a  question  of  fact  to  be  decided  by  the  jury  under  the  cir- 
cumstances of  each  case. 

§  2312.  (2186.)  (2190.)  Public  agents.  Public  agents  contracting  in 
behalf  of  the  public,  are  not  individually  liable  on  such  contracts. 

§2213.  (2187.)  (2191.)  Liabilityforexcessof  authority.  All  a<'ents, 
by  an  express  undertaking  to  that  effect,  may  render  themselves  individually 
liable.  And  every  agent  exceeding  the  scope  of  his  authority  is  individually 
liable  to  the  person  with  whom  he  deals;  so,  also,  for  his  own  tortious  art, 
whether  acting  by  command  of  his  principal  or  not,  he  is  responsible;  for  the 
negligence  of  his  under-servant,  employed  by  him  in  behalf  of  hia  principal, 
he  is  not  responsible. 


STATUTORY    PKOVISIONS.  871 

g32l4.  (2188.)  (2102.)  Whero  agent  exceeds  authority.  When 
the  aijent  exceeds  his  authority,  so  that  the  principal  is  not  bound,  the  agent 
cannot  enforce  the  contract  in  his  own  name  against  the  person  with  whom  he 
deals,  unless  the  contract  has  been  fully  executed  upon  the  part  of  the  agent, 
or  the  credit  was  originally  given  to  the  agent. 


LOUISIANA. 
The  references  are  to  the  Code  of  1875. 
Chapter  I. 

Art.  2985. — A  mandate,  procuration  or  letter  of  attorney  is  an  act  by  which 
one  person  gives  power  to  another  to  transact  for  him  and  in  his  name,  one 
or  several  affairs. 

Art.  2986. — The  mandate  may  take  place  in  five  different  manners:  for 
the  interest  of  the  person  granting  it  alone;  for  the  joint  interest  of  both 
parties;  for  the  interest  of  a  third  person;  for  the  interest  of  such  third  person 
and  that  of  the  party  granting  it;  and  finally,  for  the  interest  of  the  manda- 
tary and  a  third  person. 

Art.  2987. — The  object  of  the  mandate  must  be  lawful,  and  the  power 
conferred  must  be  one  which  the  principal  himself  has  a  right  to  exercise. 

Art.  2988. — The  contract  of  mandate  is  completed  only  by  the  acceptance 
of  the  mandatary. 

Art.  2989.— a  power  of  attorney  may  be  accepted  expressly  in  the  act 
itself,  or  by  a  posterior  act. 

It  may  also  be  accepted  tacitly;  and  this  tacit  acceptance  is  inferred,  either 
from  the  mandatary  acting  under  it,  or  from  his  keeping  silence  when  the 
act  containing  his  appointment  is  transmitted  to  him. 

Art.  2990. — If  the  proxy  or  attorney  in  fact  pleads  that  he  has  not 
accepted  or  acted  under  the  power,  it  is  incumbent  on  the  principal  to  prove 
ho  has. 

Art.  2991. — The  procuration  is  gratuitous  unless  there  has  been  a  contrary 
agreement. 

Art.  2992. — A  power  of  attorney  may  be  given,  either  by  a  public  act  or 
by  a  writing  under  private  signature,  even  by  letter. 

It  may  also  be  given  verbally,  but  of  this  testimonial  proof  is  admitted 
only  conformably  to  the  title:    Of  Conventional  Obligations. 

Art.  2993. — A  blank  may  be  left  for  the  name  of  the  attorney  in  fact  in 
the  letter  of  attorney. 

In  that  case,  the  bearer  of  it  is  deemed  the  person  empowered. 

Art.  2994. — It  may  be  either  general  for  all  affairs,  or  special  for  one 
affair  only. 

Art.  2995. — It  may  vest  an  indefinite  power  to  do  whatever  may  appear 
conducive  to  the  interest  of  the  principal,  or  it  may  restrict  the  power  given 
to  the  doing  of  what  is  specified  in  the  procuration. 

Art.  2996. — A  mandate  conceived  in  general  terms,  confers  only  a  power 
of  administration. 

If  it  be  necessary  to  alienate  or  give  a  mortgage,  or  do  any  other  act  of 
ownership,  the  power  must  be  express. 

Art.  2997. — Thus  the  power  must  be  express  and  special  lor  the  follow- 
ing purposes: 

To  sell  or  to  buy. 

To  incumber  or  hypothecate. 

To  accept  or  reject  a  succession. 

To  contract  a  loan  or  acknowledge  a  debt. 


872  THE    LAW    OF    AGENCY. 

To  draw  or  indorse  bills  of  exchange  or  promissory  notes. 

To  compromise  or  refer  a  matter  to  arbitration. 

To  make  a  transaction  in  matters  of  litigation;  and  in  general  where 
things  to  be  done  are  not  merely  acts  of  administration,  or  such  as  facilitate 
sucli  acts. 

Art.  2998. — A  power  to  compromise  on  a  matter  in  litigation  does  not 
Include  that  of  submitting  or  referring  to  arbitrators. 

Art.  2999. — A  power  to  receive  includes  that  of  giving  a  receipt  in 
acquittance. 

Art.  3000. — Powers  granted  to  persons,  who  exercise  a  profession,  or 
fulfil  certain  functions,  of  doiag  any  business  in  the  ordinary  course  of 
affairs  to  which  they  are  devoted,  need  not  be  specified,  but  are  inferred  from 
the  functions  which  these  mandataries  exercise. 

Art.  3001. — Women  and  emancipated  minors  may  be  appointed  attorneys; 
but,  in  the  case  of  a  minor,  the  person  appointing  him  has  no  action  against 
him,  except  according  to  the  general  rules  relative  to  the  obligations  of 
minors;  and  in  the  case  of  a  married  woman,  who  has  accepted  the  power 
without  authority  from  her  husband,  she  can  only  be  sued  in  the  manner 
specified  under  the  title:  Of  Marriage  Contract,  and  tlie  Respective  Rig?ds  of 
the  Parties  in  Relation  to  their  Property. 

Chapter  II. — Of  the  Obligations  op  a  Person  acting  under  a  Power 

OF  Attorney. 

Art.  3002. — The  attorney  in  fact  is  bound  to  discharge  the  functions  of 
the  procuration,  as  long  as  he  continues  to  hold  it,  and  is  responsible  to  his 
principal  for  the  damages  that  may  result  from  the  non-performance  of  his 
duty. 

He  is  bound  even  to  complete  a  thing  which  had  been  commenced  at  the 
time  of  the  principal's  death,  if  any  danger  result  from  delay. 

Art.  3003. — The  attorney  is  responsible,  not  only  for  unfaithfulness  in 
bis  management,  but  also  for  his  fault  or  neglect. 

Nevertheless,  the  responsibility  with  respect  to  faults,  is  enforced  less 
rigorously  against  the  mandatary  acting  gratuitously,  than  against  him  who 
receives  a  reward. 

Art.  8004. — He  is  obliged  to  render  an  account  of  his  management,  unless 
this  obligation  has  been  expressly  dispensed  with  in  his  favor. 

Art.  3005. — He  is  bound  to  restore  to  his  principal  whatever  he  has 
received  by  virtue  of  his  procuration,  even  should  he  have  received  it  unduly. 

Art.  3006. — In  case  of  an  indefinite  power,  the  attorney  can  not  be  sued 
for  what  he  has  done  with  good  intention. 

The  judge  must  have  regard  to  the  nature  of  the  affair,  and  the  diflBculty 
of  communication  between  the  principal  and  the  attorney. 

Art.  3007. — The  attorney  is  answerable  for  the  person  substituted  by  him 
to  manage  in  his  stead,  if  the  procuration  did  not  empower  him  to  substitute. 

Art.  3008. — He  is  also  answerable  for  his  substitute,  if,  having  the  power 
to  appoint  one,  and  the  person  to  be  appointed  not  being  named  in  the  pro- 
curation, he  has  appointed  for  his  substitute  a  person  notoriously  incapable, 
or  of  suspicious  character. 

Art.  3009. — Even  where  the  attorney  is  answerable  for  his  substitute,  the 
principal  may,  if  he  thinks  proper,  act  directly  against  the  substitute. 

Art.  8010. — The  attorney  can  not  go  beyond  the  limits  of  his  procuration; 
whatever  he  does  exceeding  his  power  is  null  and  void  with  regard  to  the 
principal,  unless  ratified  by  the  latter,  and  the  attorney  is  alone  bound  by  it  in 
his  individual  capacity. 

Art.  3011. — The  mandatary  is  not  considered  to  have  exceeded  his 
authority,  when  he  has  fulfilled  the  trust  confided  to  him,  in  a  manner  more 
advantageous  to  the  principal,  than  that  expressed  in  his  appointment. 


STATUTORY    PK0VISI0N8.  873 

Art.  .'3012.— The  mandatary,  who  has  communicated  hi.s  authority  to  a 
prson  with  whom  he  contracts  in  that  capacity,  is  not  answerable  to  the 
latter  for  anything  done  beyond  it,  unless  he  has  entered  into  a  personal 
guarantee. 

Art.  8013.— The  mandatary  is  responsible  to  those  with  whom  he  con- 
tracts, onlj^  when  he  has  bound  himself  personally  or  when  he  has  exceeded 
his  authority  without  having  exhibited  his  powers. 

Art.  8014.— When  there  are  several  attorneys  in  fact  empowered  by  the 
same  act,  they  are  not  responsible  insoUdo  for  the  acts  of  each,  unless  such 
responsibility  be  expressed  in  the  procuration. 

Art.  3015.— The  attorney  is  answerable  for  the  interest  of  any  sum  of 
money  he  has  employed  to  his  own  use,  from  the  time  he  has  so  employed  it; 
and  for  that  of  any  sura  remaining  in  his  hands  from  the  day  he  becomes  a 
defaulter  by  delaying  to  pay  it  over. 

Chapter  III.    Op  the  Mandatary  or  Agent  op  Both  Parties. 

Art.  8016. — The  broker  or  intermediary  is  he  who  is  employed  to  negoti- 
ate a  matter  between  two  parties,  and  who,  for  that  reason,  is  considered  as 
the  mandatary  of  both. 

AuT.  3017.— The  obligations  of  a  broker  are  similar  to  those  of  an  ordi- 
nary mandatary,  with  this  difference,  that  his  engagement  is  double,  and 
requires  that  he  should  observe  the  same  fidelity  towards  all  parties,  and  not 
favor  one  more  than  another. 

Art.  3018. — Brokers  are  not  responsible  for  events  which  arise  in  the 
affairs  in  which  they  are  employed;  they  are  only,  as  other  agents,  answer- 
able for  frauds  or  faults. 

Art.  3019. — Brokers,  except  in  case  of  fraud,  are  not  answerable  for  the 
insolvency  of  those  to  whom  they  procure  sales  or  loans,  althouijh  they 
receive  a  reward  for  their  agency  and  speak  in  favor  of  him  who  buys  or 
borrows. 

Art.  8020.— Commercial  and  money  brokers,  besides  the  obligations  which 
they  incur  in  common  with  other  agents,  have  their  duties  prescribed  by  the 
laws  regulating  commerce. 

Chapter  IV.    Op  the  Obligations  op  the  Principal  who  acts   by 
HIS  Attorney  in  Fact. 

Art.  3021.— The  principal  is  bound  to  execute  the  engagements  contracted 
by  the  attorney,  conformably  to  the  power  confided  in  htm. 

For  anything  further  he  is  not  bound,  except  in  so  far  as  he  has  expressly 
ratified  it.  ^ 

Art.  3022.— The  principal  ought  to  reimburse  the  expenses  and  char"-cs 
which  the  agent  has  incurred  in  the  execution  of  the  mandate,  and  pay  his 
commission  where  one  has  been  stipulated. 

If  there  be  no  fault  imputable  to  the  agent,  the  principal  can  not  dispense 
with  this  reimbursement  and  payment,  even  if  the  affair  has  not  succeeded; 
nor  can  he  reduce  the  amount  of  reimbursement,  under  pretense  that  the 
charges  and  expenses  ought  to  have  been  less. 

Art.  3023.— The  mandatary  has  a  right  to  retain  out  of  the  property  of 
the  principal  in  his  hands,  a  sufficient  amount  to  satisfy  his  expenses  and 
costs. 

He  may  even  retain,  by  way  of  offset,  what  the  principal  owes  him, 
provided  the  debt  be  liquidated. 

Art.  3024.— The  attorney  must  also  be  compensated  for  such  losses  as  he 
has  sustained  on  occasion  of  the  management  of  his  principal's  affairs,  when 
he  can  not  be  reproached  with  imprudence. 


8j4  THE    LAW    OF    AGENCY. 

Art.  3025. — If  the  attorney  has  advanced  any  sum  of  money  for  the 
affairg  of  the  principal,  the  latter  owes  the  interest  of  it,  from  the  day  on 
which  the  advance  is  proved  to  have  been  made. 

Art.  3028. — If  the  attorney  has  been  empowered  by  several  persons  for  an 
affair  common  to  them,  every  one  of  these  persons  shall  be  bound  in  tolido 
to  him  for  all  the  effects  of  the  procuration. 

Chapter  V.    How  thb  Procuration  Expires. 

Art.  8027.— The  procuration  expires: 

By  the  revocation  of  the  attorney. 

By  the  attorney's  renunciation  of  the  power. 

By  the  change  of  condition  of  the  principal. 

By  the  death,  seclusion,  interdiction  or  failure  of  the  agent  or  principal. 

Art.  8028. — The  principal  may  revoke  his  power  of  attorney  whenever 
he  thinks  proper,  and,  if  necessary,  compel  the  asrent  to  deliver  up  the  written 
instrument  containing  it,  if  it  be  an  act  under  private  signature. 

Art.  3029. — If  the  principal  only  notifies  his  revocation  to  the  attorney, 
and  not  to  the  persons  with  whom  he  has  empowered  the  attorney  to  transact 
for  him,  such  persons  shall  always  have  the  right  of  action  against  the  prin- 
cipal to  compel  him  to  execute  or  ratify  what  has  been  done  by  the  attorney; 
the  principal  has,  however,  a  right  of  action  against  the  attorney. 

Art.  3030. — The  appointment  of  a  new  attorney  to  transact  the  same 
business  produces  the  same  effect  as  a  revocation  of  the  first,  from  the  day 
such  appointment  is  notified  to  the  first  attorney. 

Art.  8031. — The  attorney  may  renounce  his  power  of  attorney  by  notify- 
ing to  the  principal  his  renunciation. 

Nevertheless,  if  this  renunciation  be  prejudicial  to  the  principal,  he  ought 
to  be  indemnified  by  the  agent,  unless  the  latter  should  be  so  situated  that  he 
can  not  continue  the  agency  without  considerable  injury. 

Art.  3032. — If  the  attorney,  being  ignorant  of  the  death  or  of  the  cessa- 
tion of  the  rights  of  his  principal,  should  continue  under  his  power  of  attor- 
ney, the  transactions  done  by  him.  during  this  state  of  ignorance,  are  con- 
sidered as  valid. 

Art.  8033. — In  the  cases  above  enumerated,  the  engagements  of  the  agent 
are  carried  into  effect  in  favor  of  third  persons  acting  in  good  faith. 

Art.  3034. — In  case  of  the  death  of  the  attorney,  his  heir  ought  to  inform 
the  principal  of  it,  and  in  the  meantime,  attend  to  what  may  be  requisite  for 
the  interest  of  the  principal. 


INDEX. 


References  are  to  Sections. 

ABANDONMENT, 

when  agent  may  abandon  agency,  238. 

what  will  amount  to,  285. 

what  will  justify,  236. 

effect  on  right  to  compensation,  632-644. 

1.  when  abandonment  was  lawful,  633. 

2.  when  abandonment  was  unlawful,  633. 

distinction  between  entire  and  severable  contracts,  634. 
agent  generally  forfeits  all  compensation,  635. 
but  the  rule  of  Britton  v.  Turner  is  more  liberal,  636. 
what  this  rule  is,  636,  637. 

brief  absences  do  not  constitute  abandonment,  638. 
when  principal  is  deemed  to  have  condoned,  639. 
what  will  excuse,  640. 
Imprisonment  of  agent  will  not,  when,  235. 
contracts  not  to  terminate  without  notice,  641. 
forfeiture  of  wages  for  breach,  643. 
what  works  a  forfeiture,  643. 
ACCEPTANCE  OF  AGENCY, 
agent  must  accept,  108, 
when  acceptance  presumed,  108. 
ACCEPTANCES, 

of  negotiable  paper  by  agent. 

See  Authority  to  Make  ob  Indorse  Neqotiablk  Papbb. 
ACCIDENTS, 

agent  not  liable  for,  501. 
ACCOMMODATION  PAPER, 

agent  to  manage  business,  no  power  to  make,  400. 

authority  to  make  negotiable  paper  does  not  authorize  making  of  accom- 
modation paper,  392. 
ACCOUNT, 

copy  of,  no  evidence  of  authority  to  collect,  837. 
ACCOUNT,  ALLOWANCE  OF, 

contracts  to  use  influence  to  secure,  void,  38. 
ACCOUNTING. 

agent  must  account  for  property  and  money  received,  532-537. 
is  bound  to  account  to  principal  only,  533. 
to  whom  suhagent  shall  account,  534. 

all  profits,  benefits  and  advantages  derived  by  agent  belong  to  prin- 
cipal, 469. 

875 


876  ixDEx. 

References  are  to  Sections, 

ACCOUNTING. —Ow:»»w«d. 

principal  is  entitled  to  agent's  earnings — when,  471,  472. 
agent  can  not  dispute  principal's  title,  525. 

nor  allege  illegality  of  transaction  to  defeat  principal's  claim,  528. 
may  not  interplead  principal  and  other  claimants,  527. 
must  keep  coi  rect  accounts,  528. 

must  keep  principal's  property  and  funds  separate  from  his  own,  529. 
at  what  time  he  should  account,  530. 
when  principal  must  make  demand  before  suing,  531. 
when  agent  will  be  charged  with  interest,  532. 
when  ageat's  liability  barred  by  limitation,  533. 
in  what  form  of  action  agent  is  liable,  534. 
when  he  may  set  off  claims  against  principal,  535. 
how  far  principal  may  follow  his  property  and  funds,  536-537. 
by  attorneys. 

See  Attorneys,  826. 


by  auctioneers. 
by  brokers, 
by  factors. 


See  Auctioneers,  907. 
See  Brokers,  955. 
See  Factors,  1023. 


ACCOUNTS, 

agent  must  keep  correct  accounts,  528. 
auctioneer  must  keep  accounts,  907. 
brokers  must  keep  accounts,  955. 
factors  must  keep  accounts,  1021, 
ACQUIESCENCE, 

ratification  may  be  presumed  from,  153, 154. 

the  rules  governing  stated,  157. 

same  rules  apply  to  corporations,  158,  159. 

and  although  assumed  agent  were  mere  stranger,  160-163. 

illustrations  of,  164. 
ACTION, 

in  what  form  of,  agent  liable  to  principal,  534. 

when  trover  will  lie. 

when  right  of,  accrues  to  agent  against  principal,  624. 
agent  liable  to,  to  third  persons,  when,  541  et  seq. 

what  form  of,  maintainable,  549. 
principal  may  maintain  against  third  persons,  when,  768,  777. 

subject  to  what  defenses,  773,  775. 
agent  may  maintain  against  third  persons,  when,  754,  765. 
auctioneer  may  sue,  when,  921,  922. 
broker  may  sue,  when,  983. 
factor  may  sue,  when,  1039,  1010. 
bringing  by  principal,  ratifies  agent's  act,  151. 
agent  to  collect,  may  sue,  when,  386. 


INDEX.  877 

Heferences  are  to  Sections, 

ADMINISTRATION, 

grant  of,  does  not  necessarily  revoke  power  of  attorney  previously  exe- 
cuted by  person  appointed  administrator,  219. 
ADMINISTRATOR. 

can  not  purchase  at  his  own  sale,  463. 
ADMSSIONS  OP  AGENT, 

agent's  authority  can  not  be  established  by  proof  of,  100. 
nor  enlarged,  100. 
nor  renewed,  100. 
cannot  extend  scope  of  written  authority,  100. 
may  be  used  against  himself,  100. 
fact  of  agency  must  be  shown  by  other  means,  100. 

error  in  admission  of,  how  cured,  100,  note, 
agent  must  be  called  as  witness,  101. 

is  a  competent  witness  to  prove  authority,  101. 
bind  principal  only  when  made  witliin  scope  of  authority,  714. 
and  when  they  are  part  of  rrs  gestae,  714. 
what  embraced  within  this  rule,  715. 

agent's  authority  must  be  first  shown  by  other  evidence,  716. 
ADVANCES  AND  DISBURSEMENTS, 
agent  must  be  reimbursed  for,  wlien. 

See  Reimbuusement. 
factor's  lien  for,  see  Factors. 
factor  must  be  reimbursed  for,  1009. 
ADVERSE  INTEREST  IN  AGENT, 

See  Double  Dealing. 
disqualification  by,  66-68,  454,  et  seq.,  795  et  seq. 
person  can  not  be  agent  if  duty  and  interest  conflict,  66. 
cannot  be  agent  for  both  pirties,  when,  67. 
cannot  be  party  and  agent  for  opposite  party,  68. 
must  not  put  himself  in  antagonistic  relations,  455. 
may  not  deal  in  business  of  agency  for  his  own  profit,  456. 
authorized  to  purchase  may  not  purchase  for  himself,  4o7,  458. 

if  he  does,  will  be  held  as  trustee  for  principal.  458,  459. 
authorized  to  sell  may  not  sell  to  himself,  461. 

if  he  does,  principal  not  bound,  461. 
authorized  to  buy,  may  not  buy  of  himself,  462. 

if  he  does,  principal  is  not  bound,  462. 
employed  to  settle  claim,  can  not  buy  and  enforce  it,  467. 
AGENCY, 
defined,  1, 

how  related  to  master  and  servant,  2. 
actual  and  ostensible  agencies,  i. 
other  names  employed  for,  3. 
special  forms  of,  10. 
is  a  contract  relation,  1,  48. 
may  be  created  by  law,  1,  82. 
how  created. 

See  Appointment  op  Agents. 


878  iNDKx. 

References  are  to  Sections. 

IlQ^UCY,— Continued. 
how  terminated. 

See  Tekmtnation  of  Authorttt;  Revocatioh. 
AGENCY— FOR  WHAT  PURPOSES  CREATED, 
may  be  created  for  any  lawful  purpose,  18. 
not  to  perform  act  of  a  personal  nature,  41. 
not  to  dt)  illegal  act,  19. 
not  to  violate  public  policy,  19,  20. 

what  services  in  this  respect  are  lawful,  23. 

whether  contingent  compeasatioa  invalidates,  21. 

to  procure  or  defeat  legislation,  void,  23. 

to  procure  contracts  from  governments,  24,  25. 

to  prosecute  claims,  26. 

to  compromise  crime,  unlawful,  27. 

to  procure  appointment  to  office,  void,  28. 

whether  public  or  private,  29. 
to  improperly  influence  elections,  30,  31. 
to  procure  pardons,  unlawful,  82. 

not  when  conviction  was  illegal,  33. 
to  procure  or  suppress  evidence,  void,  34. 
to  gamble  in  stocks  or  merchandise,  unlawful,  35. 
to  procure  marriage,  unlawful,  36. 
to  corrupt  agents  or  servants,  unlawful,  37. 
to  sell  tickets  in  forbidden  lottery,  unlawful.  38. 
to  procure  discharge  of  drafted  men,  unlawful,  38. 
to  secure  allowance  of  account,  unlawful,  38. 
to  assume  unreal  disinterestedness,  unlawful,  38. 
to  violate  rules  of  war,  unlawful,  38. 
to  carry  on  prohibited  saloon,  unlawful,  33. 
or  billiard  table,  38. 
or  lottery,  38. 
to  work  on  Sunday,  unlawful,  88. 
agent  must  participate  in  unlawful  purp.jse,  39. 
whole  contract  is  void,  when  entire,  40. 
AGENT, 

defined.  1,  6. 
other  names  for,  3. 
how  compares  with  servant,  2. 
AGENT  —  CLASSES  OF, 
how  agents  classified,  5. 
universal,  general  and  special  defined,  6. 
AGENT  — DUTIES  AND  LIABILITIES  OF, 

See  Duties  and  Liabilities  ok  Agent  to  Prtncipat.;  Duties  awd 
Liabilities  of  Agent  to  Thiud  Peesoks. 
AGENT  — RIGHTS  OF, 

Bee  Duties  and  Liabilitles  of  Principal  to  Agent;  Duties  and 
Llabuaties  ok  Third  Persons  to  Agent. 
AGENT  — WHO  MAY  BE, 
any  competent  person,  57. 


INDEX.  879 

Befereuces  are  to  Sections. 

AGENT— WHO  MAY  BE,— Continued, 

infants  may  be,  59. 

slaves  might  be,  60. 

married  women  may  he,  61,  63. 

married  woman  as  agent  for  stranger,  61. 

married  woman  as  agent  for  her  huaband,  63. 

husband  may  be  for  wife,  03. 

corporations  may  be,  64. 

partnerships  may  be,  65. 

aliens  may  be,  67. 

outlaws  may  be,  57. 

monks  may  be,  57. 

villeins  might  be,  57. 
disquali^cation  from  adverse  interest.  66-68. 

one  cannot  be  agent  if  duty  and  interest  conflict,  68. 

one  cannot  be  agent  for  both  parties  without  their  consent,  67. 

one  cannot  be  both  party  and  agent  for  opposite  party,  68. 
AGENT  TO  RECEIVE  SERVICE, 

when  authority  cannot  be  revoked,  233. 
AMBIGUITY, 

in  notice  of  revocation,  construed  against  principal,  230. 
in  instructions,  effect  of,  484. 
APPOINTMENT  OP  AGENT, 

agent  appointed  only  by  the  will  of  the  principal,  80. 
how  principal's  will  may  be  expressed,  81. 
when  authority  created  by  law,  82. 
when  authority  exists  of  necessity,  82. 
when  appointment  will  be  implied,  83. 
when  principal  estopped  to  deny  appointment,  84. 
authority  presumed  from  conduct,  84. 
appointment  implied  only  from  facts,  85. 
inference  must  not  exceed  legitimate  effect  of  facts,  85. 
instances  of  implied  authority.  86. 
when  implied  from  holding  one  out  as  agent,  86. 
inferences  from  repetition  of  acts,  86. 
from  openly  exercising  authority,  86. 

from  placing  one  in  general  charge  of  store,  86. 
from  acquiescence  in  agent's  acts,  86. 
what  will  not  justify  inference,  87. 
making  note  payable  at  bank  does  not  not  make  bank  agent  to  recciv© 

payment,  87. 
copy  of  bill  or  account  does  not  import  authority  to  collect  it,  87. 
may  also  be  express,  88. 

when  parol  sufficient  to  sell  or  lease  lands,  89. 
to  demand  or  collect  rents,  90. 
to  execute  instruments  not  under  seal,  91. 
what  writing  sufficient  when  writing  rtquired,  92. 
to  execute  sealed  instruments,  must  bo  under  seal,  93. 
to  fill  blanks  in  deeds,  94 


880  INDEX. 

References  are  to  Sections. 

A.PPOINTMENT  OF  AG^^T .—Continued. 
how  when  seal  superfluous,  95. 
how  when  instrument  executed  in  principal's  presence  and  by  his  direction, 

96. 
appointment  by  corporations,  97. 

to  execute  deeds  of  realty,  98. 
not  to  be  established  by  agent's  declarations,  100. 
cannot  be  shown  by  general  reputation,  101. 
may  be  shown  by  agent's  testimony,  103. 
when  written  authority  must  be  produced,  103. 
except  on  collateral  inquiry,  103. 
writing  construed  by  the  court,  104. 
undisputed  facts  construed  by  coiiri,  105. 
disputed  facts  are  for  jury,  106. 
ARBITRATION, 

authority  to  settle  does  not  authorize,  405. 
factor  cannot  submit  to,  1000. 
broker  cannot  submit  to,  950. 
attorney  may,  813. 
ARBITRATORS, 

cannot  delegate  their  powers,  188. 

but  may  employ  mechanical  assistance,  188. 
or  obtain  expert  information,  188. 
ASSAULT, 

when  principal  liable  for  by  agent,  741. 
when  principal  may  recover  for,  on  agent,  795. 
ASSIGNEE  FOR  CREDITORS, 

cannot  purchase  at  his  own  sale,  463. 
atrent's,  cannot  hold  against  principal,  536. 
ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS, 

See  Bankuuptct. 
terminates  agent's  authority,  263,  519,  subd.  i. 
ASSOCIATIONS -VOLUNTARY, 
when  bound  by  acts  of  agents,  72. 
how  agents  may  be  appointed  by,  72. 
members  of  when  liable  for  acts  of  assumed  agents,  73. 
mere  membership  does  not  impose  liability,  73. 
must  assent  to  act,  73. 
or  ratify  it,  73. 

or  it  must  have  been  authorized  by  charter  or  by  laws,  73. 
illustrations  of  this  rule,  73. 
the  true  rule  stated,  74. 
are  not  partnerships,  72. 
members  not  liable  as  partners,  73. 
ASSUMPTION  OF  MORTGAGE, 

agent  having  general  authority,  to  deal  in  land,  may  assume.  838. 
ATTORNEYS  AT  LAW, 
I.  Op  the   Office. 
attorney  at  law  defined,  803. 


INDEX.  881 

Beferences  are  to  Seotion& 

ATTORNEYS  AT  liAM .—Continued. 
is  an  oflacer  of  the  court,  803. 
who  may  be,  804. 

"citizen"  as,  804. 
women  as,  804. 
party  may  appear  in  person,  805. 

but  may  not  appear  by  an  agent  who  is  not  an  attorney,  806. 
II.  Ok  the  Relation  of  ATTOiiNST  and  Client. 
ifl  a  relation  of  agency,  807, 

general  rules  of  agency  apply,  807. 
no  formal  retainer  indispensable,  808. 

but  authority  may  be  shown  as  in  other  cases,  808. 
in.  Appeahance  of,  presumptively  authorized,  809. 
this  presumption  is  not  conclusive,  810. 

opposite  party  may  require  him  to  show  authority,  810. 
what  evidence  is  sufficient,  810. 
client  may  dispute  his  authority,  810. 

either  in  actions  on  foreign  judgments,  810. 
or  upon  domestic  judgments,  810. 
IV.  Implied  Authority  op  Attorney. 
has  general  control  of  the  conduct  of  the  suit,  811. 
has  implied  power: — 

to  make  affidavits  in  case,  818. 
to  waive  a  verification,  813. 
to  serve  and  accept  service  of  papers,  etc.,  812. 
to  waive  formal  notices,  812, 

to  waive  or  extend  time  for  proceedings  in  cause,  813. 
to  refer  the  cause,  812, 
to  submit  it  to  arbitrators,  812, 
to  dismiss  or  discontinue  the  action,  813. 
to  consent  to  a  nonsuit,  812, 
to  appeal  the  case,  812. 
to  admit  facts  for  purposes  of  trial,  812. 
to  agree  upon  the  issues,  812. 
to  waive  informalities  and  technicalities,  813. 
to  release  attachment  lien  before  judgment,  813. 
to  stipulate  that  judgment  in  one  action  shall  be  same  as  in  another,  813. 
to  get  briefs  printed  at  client's  expense,  813. 
to  suspend  execution,  813, 
to  remit  damages  after  a  verdict,  812. 
has  no  implied  authority: — 

to  admit  or  accept  service  of  original  process,  813. 
to  confess  or  consent  to  judgment,  813, 
to  enter  a  retraxit  when  it  is  a  final  bar,  813. 

to  agree  that  dismissal  of  action  shall  bar  action  for  malicious  prose- 
cution, 813. 
to  compromise  the  claim  of  his  client,  818. 
to  release  client's  cause  of  action,  813. 
56 


882  INDEX. 

Keferences  are  to  Sections. 

ATTORNEYS  AT  l.^.^ .—Continued. 
has  no  implied  authority; — 

to  stipulate  not  to  appeal  or  move  for  new  trial,  813. 
to  release  defendant's  property  from  levy  or  judgment,  818. 
to  release  client's  security  without  payment,  813. 
to  release  or  discharge  a  surety  or  indorser,  813. 
to  discharge  defendant  from  custody  without  satisfaction,  813. 
to  suspend  proceedings  on  judgment,  813. 
to  release  a  garnishee,  813. 
to  release  interest  of  parties,  813. 
to  grant  extensions  of  time  on  debt,  813. 
to  assign  or  transfer  debt  to  another,  813. 
to  consent  to  stay  execution,  813. 
to  waive  right  to  an  inquisition,  813. 
to  give  up  the  demand  and  take  other  security,  818. 
to  employ  counsel  at  client's  expense,  813. 
to  stipulate  that  cause  shall  not  be  tried  for  a  certain  period,  813, 
to  undertake  journeys  at  client's  expense,  813. 
can  not  delegate  his  powers,  814 

such  a  delegation  confers  no  rights  against  client,  814. 
unless  client  ratifies  it,  814. 

employment  of  one  of  a  firm  is  retainer  of  all,  814. 
but  may  employ  subordinates,  815. 

or  delegate  ministerial  or  mechanical  duties,  815. 
bonds,  authority  to  bind  client  by,  816. 

may  indemnify  sheriff  against  levy,  816. 
but  may  not  execute  appeal  bond,  816. 
or  replevin  bond,  816. 

or  indemnify  surety  on  injunction  bond,  816. 
payment  to  attorney  binds  client,  when,  817. 
may  give  receipts,  817. 
may  accept  partial  payments,  817. 
but  may  not  grant  extensions,  817. 
authority  may  be  terminated  by  notice,  817. 
but  payment  on  securities  binds  only  when  attorney  had  possession 

of  them,  817. 
fact  that  he  negotiated  them  makes  no  difference,  817. 
authority  continues  after  judgment,  818. 
but  only  to  attorney  of  record,  818. 
what  constitutes,  819. 
can  accept  money  only,  and  in  full,  819. 
can  not  accept  notes,  goods,  or  land,  819. 
or  drafts,  county  warrants  or  bonds,  819. 
or  set  off  judgments,  819. 
or  accept  land,  819. 

or  Confederate  or  depreciated  bills,  819. 
or  set  off  his  own  debt,  819, 
or  accept  his  own  note  or  obligation,  819. 


mDEX.  888 

References  are  to  Sections. 

ATTORNEYS  AT  LA.W,— Continued. 

Judgment,  attorney  may  enforce,  820. 
may  sue  out  execution,  820. 
direct  its  service,  820. 
direct  the  time  and  manner  of  enforcing  it,  820. 

but  may  not  direct  levy  on  specific  property,  820. 
may  not  release  lieu  of  judgment  or  execution,  820. 
nor  stay  proceedings  so  long  as  to  lose  lien,  820. 
may  issue  alias  if  necessary,  820. 
V.    Duties  and  Liabilities  to  Client. 
bound  to  highest  honor  and  integrity,  821. 
must  disclose  adverse  interests,  822. 
must  remain  loyal,  823. 
bound  to  use  reasonable  care  and  skill,  824. 

not  liable  for  errors  in  law  or  judgment,  when,  825. 
not  liable  for  "  street  advice,"  497. 
liable  for  negligence  in  collecting,  826. 

what  this  rule  includes,  826. 
liable  for  negligence  in  bringing  suit,  827. 

a.  for  bringing  suit  in  wrong  court,  827. 

b.  for  neglect  in  practice,  827. 

e.  for  using  defective  papers,  827. 
liable  for  negligence  in  trial  of  action,  828. 

what  this  rule  includes,  828. 
liable  for  negligence  in  examining  titles,  829. 

does  not  warrant  title  to  be  good,  82S). 
liable  for  negligence  in  preparing  contracts,  830. 

liability  measured  by  his  undertaking,  830. 
liable  for  neglect  of  partner  or  clerk,  831. 

liability  same  as  in  trading  partnerships,  831. 

but  is  not  liable  for  neglect  or  default  of  associate,  831, 

liable  for  neglect  of  his  substitute  or  subagent,  515. 
liable  for  exceeding  authority,  832. 

or  violnting  instructions,  832. 

for  entering  satisfaction  without  payment  in  full,  833. 

or  delaying  action  whereby  claim  is  lost,  832. 
liable  for  money  collected,  833. 

liable  if  he  uses  it  himself,  883. 

or  commingles  it  with  his  own,  833. 

or  deposits  it  in  his  own  name,  8;33. 

no  action  ordinarily  until  after  demand,  888. 
but  exceptions  to  this  rule,  833. 

liable  for  interest  when,  833. 
liability  though  acting  gratuitously,  834. 

same  as  in  case  of  other  agents,  834. 
measure  of  damages  is  compensation  to  client,  835. 

client  must  show  loss  by  attorney's  default,  835. 


884  INDEX. 

References  are  to  Sections. 

ATTORNEYS  AT  'Lk.YJ ,— Continued. 
VL    Liability  of  Attorney  to  Tjiird  Persons. 
not  liable  for  breach  of  duty  owint?  to  client  only,  836. 
not  liable  for  defective  search  made  for  client,  836. 
or  for  negligence  in  taking  securities,  836. 
cases  of  fraud  rest  on  other  grounds,  886. 
liable  where  he  contracts  personally,  837. 

same  as  in  case  of  other  agents,  558,  837. 
liable  for  clerk's  officer's  and  witness's  fees,  when,  838. 

not  liable  for  referee's  or  stenographer's  fees,  838. 
liable  for  torts  committed  to  third  persons,  839. 

not  liable  for  result  of  suit  if  he  acts  in  good  faith,  839. 
but  liable  for  false  imprisonment,  when  he  directs  arrest,  839. 
or  participates  in  client's  malicious  prosecution,  839. 
or  uses  client's  cause  to  vent  his  own  malice,  839. 
VIL     Liability  op  Client  to  Attorney. 
1.  attorney's  right  to  reimbursement  and  indemnity. 

attorney  entitled  to  reimbursement  and  indemnity,  840. 

unless  rendered  necessary  by  his  own  neglect  or  default,  840. 
3.  attorney's  right  to  compensation, 
is  entitled  to  compensation,  841. 
and  may  sue  for  it,  843. 
parties  may  agree  upon  amount,  843. 

express  agreements  conclusive,  843. 
may  make  compensation  contingent  on  success,  844, 

but  contract  must  not  be  unfair,  844. 
what  contracts  are  champertous,  845. 

various  rules  stated,  845  and  notes. 
Buch  contracts  do  not  prevent  settlement  by  client,  846. 

attorney  can  protect  hira-<elf  only  by  assignment  and  notice,  848. 
but  attorney  may  recover  from  client,  847. 

reasonable  value  at  all  events,  847. 
where  no  express  contract,  reasonable  value  in  rule,  848, 

what  evidence  is  admissible  as  to  value,  849. 

what  is  not  admissible,  850. 
lack  of  success  is  no  defense,  851. 

if  attorney  did  his  duty,  851. 
negligence  or  bad  faith  may  be  shown,  852. 

in  bar  or  mitigation,  852. 
breach  of  trust  forfeits  fees,  853. 

as  where  attorney  refuses  to  pay  over  money  collected,  853. 
abandonment  by  attorney  forfeits  fees,  854. 

unless  he  had  good  reason  for  it,  854. 

what  will  justify  abandonment,  855. 
discharge  by  client,  effect  of,  856. 

attorney's  contract  is  entire,  856. 

but  client's  is  not,  850. 

attorney's  lien  will  bj  protected,  856. 


INDEX.  885 

Heferences  are  to  Sections. 

ATTORNEYS  AT  IjhM ,— Continued. 
■what  will  justify,  857. 

when  attorney's  claim  barred  by  limitation,  858. 
Si.  Attorney's  right  of  Lien. 

two  kinds  —  general  or  retaining,  and  particular  or  charging,  860. 

a.  the  general  or  retaining  lien,  860. 

declared  by  statute  in  some  states,  861. 
adheres  to  papers,  property  and  money,  863. 

papers  must  be  in  his  possession,  863. 

and  as  attorney  at  law,  862. 

lien  does  not  attach  to  papers  received  for  special  purpose, 
863. 

nor  to  public  files,  records  or  documents,  863. 

attaches  to  articles  of  property,  8d3. 

and  to  money  in  attorney's  possession,  863. 

attorney  may  retain  his  own  fees,  883. 
secures  attorney's  general  balance  of  account,  863. 
prevails  against  client's  creditors  or  assignees,  864. 
lost  by  voluntary  surrender,  865. 

cannot  be  transferred,  865. 
waived  by  inconsistent  conduct,  866. 

by  taking  security,  866. 
enforcement  of,  867. 

b.  the  special  or  charging  lien,  868. 

exists  in  what  states,  869,  note. 

protects  what  charges,  870. 

attaches  only  when  judgment  is  rendered,  871. 

before  judgment,  attorney  not  protected,  871. 
attaches  to  judgment  or  decree  only,  873. 

and  not  to  land  recovered,  873. 
protected  against  unlawful  dealings,  873. 
cannot  be  cut  off  by  subsequent  set  off,  873. 
notice  must  be  given,  when,  873. 
enforced  like  other  assignments  of  judgments.  874. 
waived  or  lost  like  other  liens,  875. 
governed  by  law  of  place  where  judgment  obtained,  876. 

VIII.  Dbalinos  between  Attorxet  and  Client. 
good  faith  and  perfect  fairness  required,  877. 
purchases  from,  and  sales  to,  client,  873. 

cannot  buy  client's  land  at  tax  or  execution  sales,  878. 
will  be  charged  as  trustee  of  client,  878. 
attorney  must  show  perfect  fairness  of  transactions,  878. 
but  relation  of  attorney  and  client  must  exist,  879. 

mere  fact  that  opposite  party  was  attorney,  not  enough,  879. 

IX.  PRrVTLEQED  CoMMONICATIONS. 

confidential  communications  privileged,  880. 
under  what  circumstances  privilege  exists,  881. 
must  have  been  made  in  confidence,  881. 


886  INDKX. 

References  are  to  Sections. 

ATTORNEYS  AT  1,KM ,— Continued. 

not  privileged  if  made  in  contemplation  of  a  crime,  881. 

but  mere  fraud  not  to  be  exposed,  881. 
must  have  been  received  in  capacity  of  attorney,  883. 

does  not  apply  to  facts  otherwise  learned,  882. 

nor  to  third  persons  present,  832. 

nor  to  collateral  facts  involving  no  confidence,  883. 
relation  of  attorney  and  client  must  exist,  883. 

but  no  formal  retainer  or  fee  is  necessary,  883. 

communications  to  mere  scrivener  not  privileged,  883. 
communications  must  have  been  made  to  attorney,  884. 

or  to  his  clerk,  agent,  interpreter  or  representative,  884. 

made  to  mere  student  not  privileged,  884. 

nor  to  unlicensed  attorney  where  license  required,  884. 
privilege  is  that  of  a  client,  885. 

but  he  may  waive  it,  885. 
attorney  cannot,  885. 

what  constitutes  a  waiver,  885. 
continues  perpetually,  886. 

death  of  client  or  attorney  does  not  release  It,  886. 
attorney  may  disclose  for  his  own  protection,  887. 

as  when  sued  by  client,  887. 

or  when  suing  him,  887. 
X.  Termination  of  Relation. 
by  operation  of  law,  888. 

death,  insanity  or  bankruptcy  of  principal,  883. 
death,  insanity,  removal,  disbarment  of  attorney,  888. 
by  act  of  parties  as  in  other  cases,  204^237,  889. 

AUCTION, 

See  Auctioneers. 

authority  to  sell  does  not  authorize  sale  at  auction,  894,  358. 
authority  to  sell  at  private  sale  does  not  authorize  auction  sale,  358. 
authority  to  sell  at  auction  does  not  authorize  private  sale,  903. 
Bending  goods  to  auction  room  iiuplies  authority  to  sell  at  auction,  894. 
Bale  of  A's  property  at  B's  sale  does  not  bind  purchaser,  913. 
AUCTIONEERS, 
1.  Of  the  Auctioneer. 
defined,  891. 
who  may  be,  892. 

license  and  bond  required,  893. 
is  agent  of  seller,  893. 

is  bidder's  agent  in  accepting  and  entering  bid,  893. 

such  entry  sufficient  to  satisfy  statute  of  frauds,  893. 

but  must  be  made  at  time  and  place  of  sale,  893. 
%.  How  Authorized. 

authorized  like  other  agents,  894. 

parol  authority  suflicieat  even  to  sell  land,  894. 

authority  to  sell  does  not  authorize,  894. 

gending  goods  to  auction  room  evidence  of,  894. 


INDEX.  887 

Roforences  are  to  Sections, 

A  XJCTIO'SYERS,— Continued. 
'3.  Implied  Powers. 
terms  of  sale,  auctioneer  may  fix,  895. 

not  to  be  inconsistent  with  printed  terms,  895. 
acceptance  of  bid,  auctioneer's  power,  896. 

can  not  in  general  refuse  to  accept  bids,  896, 

but  may  of  incompetent  or  irresponsible  bidder,  896. 
price,  auctioneer's  power  to  receive,  897. 

may  receive  price  of  chattels,  897. 

but  only  deposits  on  sale  of  land,  897, 

can  receive  nothing  but  money,  897. 
sue  for  price,  when  auctioneer  may,  898. 

subject  to  what  set-offs,  898. 
delegate  his  authority,  auctioneer  may  not,  899. 

but  may  employ  another  to  make  outcry,  899. 

or  wield  the  hammer  under  his  direction,  899. 
credit,  has  no  power  to  grant,  900. 

unless  justified  by  usage,  900. 
rescind  sale,  has  no  power  to,  901, 

or  to  permit  bidder  to  withdraw  accepted  bid,  901. 
private  sale  not  warranted  when  authorized  to  sell  at  auction,  903. 

even  though  better  terms  received,  902. 
bidding  for  himself  unauthorized,  903. 

or  to  authorize  another  to  bid  for  him,  903. 
warranty  of  quality  unauthorized,  904. 

in  absence  of  usage  to  that  effect,  904. 
4.  Duties  and  Liabilities  to  Principal. 
bound  for  reasonable  skill  and  diligence,  905. 

but  is  not  charged  with  infallibility  or  highest  care,  905 
obey  instructions,  duty  to,  906. 

liable  for  loss  from  disobedience,  906, 
accounting  for  proceeds,  duty  of,  907. 

may  deduct  his  reasonable  costs  and  charges,  907. 
caring  for  goods,  908. 

bound  to  take  reasonable  care,  908. 
cash  sales,  duty  to  make,  909. 

must  bear  loss  incurred  from  credit  sale,  909, 
third  persons,  must  sell  only  to,  910. 

sale  to  or  for  himself  not  binding,  910. 
Bell  in  person,  duty  to,  911, 

liable  for  losses  from  delegation,  911. 
disclosing  principal,  duty  as  to,  913. 

personally  liable  otherwise,  918, 

sale  of  property  of  A  at  B's  sale  should  be  announced,  912 
6.  Duties  and  Liabilities  to  Third  Persons. 
concealing  his  principal,  liable  as  seller,  913. 

but  not  where  principal  is  disclosed,  913, 
exceeding  his  authority,  liable  where,  914. 

as  if  title  to  goods  fails,  &c.,  914. 


883  INDEX. 

Heferences  are  to  Sections. 

AUCTIONEERS,— Onrtntwd. 

stolen  property,  liable  for  selling,  915. 

or  for  selling  property  of  stranger,  915. 
not  holding  auction,  not  liable  for,  916. 

although  no  notice  given,  916. 

6.  Rights  Against  Pkincipal. 
compensation,  reimbursement,  indemnity,  91T 

is  entitled  to  compensation,  917. 

and  reimbursement  for  lawful  expenses,  917. 

and  indemnity  against  authorized  acts,  917. 
recoupment  of  damages,  918. 

principal  may  recoup  against  auctioneer,  918. 
lien  of.  919. 

may  retain  commissions  and  disbursements,  919. 
principal's  title,  can  not  dispute,  920. 

7.  Rights  against  Thibd  Persons. 
suing  bidder,  auctioneer's  power,  921. 
wrong  doer,  auctioneer  may  sue,  922. 

8.  Pbincipal's  Rigbtts  against  Third  Persons. 
purchase  price,  principal , may  recover,  923. 

even  though  principal  was  not  disclosed,  923. 
how  when  bidder  refuses  to  complete  purchase,  924. 
usual  remedy  is  a  resale,  924. 

9.  Rights  op  Third  Persons  against  Principal. 
principal  liable  for  auctioneer's  acts  and  statements,  when,  925. 

liable  where  be  refuses  to  complete  the  sale,  926. 
AUTHORITY  OF  AGENT. 

in  its  nature,  express  or  implied,  272. 

in  its  extent,  universal,  general  or  special,  272. 

express  authority  exclusive  of  implied,  278. 

persons  dealing  in  view  of,  must  notice  limitations,  273. 

so  where  express  authority  is  required  by  law,  273. 
implied  authority  more  general  in  its  scope,  274. 

but  cannot  exceed  legitimate  limits,  274. 

is  to  be  implied  from  facts  only,  274. 

must  find  its  source  in  act  of  principal,  274. 

must  be  limited  to  acts  of  similar  kind,  274. 
universal  agency  very  rare,  6, 

must  be  created  by  express  language,  275. 
authority  of  agent  must  be  ascertained  by  persons  dealing  with  him, 
276. 

they  deal  with  agent  at  their  risk,  276. 

and  must  prove  his  authority  if  controverted,  276. 
how  authority  to  be  determined,  277. 

different  aspects  of  question,  277. 
authority  is  an  attribute  if  character  bestowed  by  principal,  278. 

principal  estopped  to  deny  attributes,  278. 
the  province  of  instructions,  279,  284. 


INDEX.  889 

References  are  to  Sections. 

AUTHORITY  OF  AGENT,— Con<t/i«ed. 

apparent  authority  cannot  be  limited  by  secret  instructions,  279, 

although  agent  violate  secret  instructions,  principal  is  bound,  279. 
when  instructions  and  authority  coincide,  279. 
implied  powers,  the  doctrine  of,  311. 
usage,  powers  conferred  by,  281. 
must  be  reasonable,  281. 
lawful.  281. 
general,  281. 
when  presumption  not  conclusive,  281. 
usage  cannot  contravene  express  instructions,  281. 
nor  change  intrinsic  character  of  agency,  381. 
nor  authorize  invalid  contract,  281. 
nor  force  on  principal  things  he  did  not  order,  281. 
what  constitutes  authority,  282. 

made  up  of  different  elements,  282. 

1.  powers  directly  conferred,  282. 

2.  powers  incidental  to  main  power,  282. 
8.  powers  conferred  by  usage,  282. 

4.  powers  recognized  by  acquiescence,  282. 

5.  powers  authorized  by  ratification,  282. 

these  principles  apply  to  general  and  special  agencies,  283. 

apparent  authority  is  real  authority,  283. 

how  general  and  special  authority  distinguished,  284,  285. 

general  agency  not  unlimited,  288. 

general  agent  binds  principal  only  when  acting  within  the  scope  of 

his  authority,  287. 
special  agent's  authority  must  be  strictly  pursued,  288. 
third  persons  dealing  with  agent  must  act  in  good  faith,  289. 
and  exercise  reasonable  prudence,  289. 
must  ascertain  whether  necessary  conditions  exist,  290. 
authority  if  public  agent  must  be  ascertained,  291. 
construction  of  the  authority,  293-315. 

construction  of  writings  for  the  court,  294. 

intention  of  parties  is  the  true  test,  295. 

how  intention  to  be  discovered,  296. 

entire  writing  to  be  viewed,  297. 

other  collateral  writings  may  be  used,  297. 

surroundings  of  the  parties  to  be  viewed,  298. 

use  of  parol  evidence  to  explain  ambiguity,  299. 

or  to  identify  subject-matter,  300. 

cannot  enlarge  authority,  301. 

nor  contradict  writing,  302. 
effect  to  be  given  to  every  word  and  clause,  803. 
transaction  to  be  upheld  rather  than  defeated,  804. 
authority  to  be  interpreted  in  light  of  lex  lod,  305. 
general  powers  limited  by  specific  object,  306 

construed  to  apply  only  to  principal's  business,  307. 


800  INDEX. 

References  are  to  Sections. 

AUTHORITY  OF  AQlil^T.— Continued. 

only  those  powers  expressly  given  or  necessarily  implied,  308. 
authority  carries  with  it  the  power  to  effect  the  object,  311. 
implied  authority  not  to  be  extended  beyond  its  scope,  313. 

limited  to  principal's  business,  313. 
ambiguous  authority  construed  against  principal,  314. 
construction  adopted  in  good  faith  binds,  315. 
AUTHORITY  BY  LAW. 

authority  may  be  created  by  law,  82. 
AUTHORITY  OF  NECESSITY. 

when  exists,  82. 
AUTHORITY  TO  DISCOUNT  PAPER. 

implies  authority  to  indorse  same  when  necessary,  391. 
AUTHORITY  TO  FILL  BLANKS, 
in  deeds. 

how  conferred,  94. 

how  in  principal's  presence  and  by  his  direction,  96. 
what  execution  of.  binds  principal,  394. 
in  negotiable  paper. 

principal  bound  to  bona  fide  holder  though  agent  violate  instructions, 
394. 
AUTHORITY  TO  MAKE  OR  INDORSE  NEGOTIABLE  PAPER, 
what  constitutes  such  authority,  389. 
must  be  expressly  conferred,  389. 
authority  is  strictly  construed,  390. 
implied  only  when  necessary,  391. 
cannot  be  delegated  to  subagent,  186. 
terminates  with  principal's  death,  246. 
ageuf.  to  manage  grocery  store  has  not,  391. 

nor  agent  employed  to  manufacture  carriages,  391. 
nor  agent  authorized  to  manage  farm,  391. 
nor  agent  authorized  to  manage  principal's  business,  391. 
nor  agent  authorized  to  buy  goods  and  pay  for  them,  391. 
authority  to  discount  bills  implies  authority  to  indorse  them,  391. 
authority  must  be  confined  to  principal's  business,  392. 
agent  authorized  to  make  or  indorse,  can  not  make  or  indorse  for  his  own 

benefit  or  that  of  third  persons,  392. 
execution  must  be  confined  to  limits  specified,  393. 

authority  to  make  for  one  purpose  does  not  justify  making  for 

another,  393. 
authority  to  make  for  one  sum,  will  not  authorize  making  for  a 

different  sum,  393. 
authority  to  make  for  a  given  time,  will  not  authorize  making  for  a 

different  time,  393. 
authority  to  sign  as  surety  does  not  justify  signing  as  principal,  393. 
authority  to  make  note  does  not  imply  authority  to  pay  it,  393. 
authority  to  draw  bills  on  time  does  not  authorize  post  dated  bills, 
393. 


INDEX.  891 

References  are  to  Sections. 

ACTHORITY  TO  MAKE  OR  INDORSE  NEGOTIiiBLE  PAPER, 

— Continued. 

authority  to  draw  does  not  authorize  indorsing  or  acceptiog  bills. 
393. 

authority  does  not  justify  unusual  paper,  393. 

authority  to  fill  paper  delivered  in  blank,  394. 
AUTHORITY  TO  MANAGE  BUSINESS, 

extent  of  depends  on  nature  of  busioess,  895. 
when  implies  power  to  pledge  principal's  credit,  398. 
when  authorizes  sale  of  product  of  business,  397. 

no  implied  power  to  exchange  product  for  others,  397. 
when  authorizes  hiring  of  workmen,  397. 
does  not  authorize  the  making  of  negotiable  paper,  398. 

such  power  must  be  expressly  conferred,  398. 
does  not  authorize  borrowing  of  money,  399. 
does  not  authorize  making  of  accommodation  paper,  400. 
may  not  pledge  or  mortgage  the  business,  401. 
may  not  sell  principal's  land,  403. 
may  not  embark  in  new  or  different  business,  403. 
may  not  sell  the  business,  404. 
AUTHORITY  TO  PURCHASE, 

agent  may  not  buy  on  credit  if  furnished  with  funds,  363. 

but  may  when  not  supplied  with  funds,  364. 

so  when  he  has  general  authority  to  buy  and  sell,  364. 
implies  power  to  agree  upon  price  and  terms  of  purchase,  365. 

to  determine  time  and  method  of  delivery,  365. 

to  acknowledge  receipt  of  goods,  365. 

to  acknowledge  amount  of  indebtedness  therefor,  365. 
limits  as  to  quantity  are  not  to  be  exceeded,  366. 

discretion  may  be  exercised  where  no  limit  is  fixed,  366. 
limits  as  to  quality  or  species  must  be  observed,  367. 
restrictions  as  to  persons  must  be  observed,  368. 

may  make  representations  as  to  principal's  credit  when  authorized  to  buj 
on  credit,  369. 

but  not  if  unnecessary,  369. 
does  not  authorize  making  negotiable  paper,  370. 
ceases  with  principal's  death,  246. 

but  not  where  order  was  mailed  before  death,  246. 
AUTHORITY  TO  RECEIVE  PAYMENT, 

when  implied  from  having  sold  personal  property,  336. 

not  implied  from  possession  of  bill  or  account,  337. 

not  implied  from  having  negotiated  securities,  372. 

party  paying  must  see  that  securities  are  in  agent's  possession,  373. 

agent  selling  goods  in  his  possession  may  receive  payment,  338. 

agent  merely  to  solicit  orders  cannot,  339. 

when  travelling  salesmen  may  receive  payment,  340. 

how  when  payment  to  agent  is  made  part  of  terms  of  sale,  341. 

how  notice  of  want  of  authority  may  be  given,  342. 


892  INDEX. 

Beferences  are  to  Sections. 

AUTHORITY  TO  RECEIVE  PAYMENT,— amtfn«<»f. 

agent  authorized  to,  can  not  receive  anything  but  money,  375. 
can  not  take  debtor's  note,  375. 
or  note  of  third  petson,  375. 
or  note  of  his  own,  375. 
or  draft  on  a  stranger,  375. 
or  depreciated  currency,  375. 

or  horses,  wheat,  merchandise  or  other  property,  875 
or  set  off  debts  due  from  himself,  375. 
or  take  property  for  his  own  use  in  payment,  375. 
when  may  take  certificates  of  deposit,  375. 
agent  to  receive  payment  has  no  implied  authority  to  take  checks,  853- 
381. 
liable  if  bank  fails  before  payment,  352,  note, 
agent  to  receive  payment  may  not  release  or  compromise  the  debt  with, 
out  full  payment,  376. 
may  receive  part  payment,  377. 
agent  may  not  extend  time,  378. 

authority  to  receive  interest  does  not  authorize  receipt  of  principal,  879. 
does  not  authorize  receipt  of  payment  before  due,  380. 
authority  to  take  check  or  note  in  payment  does  not  imply  authority  to 

indorse  and  collect  it,  882. 
agent  to  collect  note  on  demand  can  not  sell  it,  383. 

or  deal  with  funds  collected,  384. 
implies  authority  to  give  appropriate  discharge,  385. 
when  implies  authority  to  sue,  386. 
when  may  sue  in  his  own  name,  387. 
when  may  employ  counsel,  388. 
not  necessarily  revoked  by  appointment  of  another  agent  to  collect  sam^ 

sum,  219. 
terminates  at  principal's  death,  246. 
AUTHORITY  TO  SELL  LAND, 

what  is  sufficient  for  the  purpose,  318. 
terminates  at  principal's  death,  246. 
when  authority  to  be  exercised,  319. 

authority  to  sell  "immediately,"  319. 
authority  to  sell  "within  a  short  time,"  319. 
what  form  of  execution  authorized,  320. 

when  includes  land  subsequently  acquired,  320. 
implies  right  to  convey,  321. 
to  insert  usual  covenants  of  warranty,  323. 
does  not  imply  power  to  mortgage,  323. 
implies  authority  to  receive  bo  much  of  purchase  price  as  is  to  be  paid 

down,  324. 
does  not  imply  authority  to  give  credit,  325. 
except  where  agent  is  left  to  fix  terms,  325. 

when  no  time  fixed,  agent  authorized  to  give  credit,  may  give  reason- 
able time,  325. 


INDlLX.  Qd^ 

References  are  to  Sections, 

AUTHORITY  TO  SELL  LA.iiD,— Continued. 

does  not  authorize  exchange  or  gift  of  lands,  826. 
does  not  authorize  waste,  327. 

or  sale  of  timber  separate  from  land,  327. 
does  not  authorize  changing  boundaries  of  land,  328. 
does  not  authorize  partition,  329. 
does  not  authorize  dedication  to  public  use,  330. 
does  not  authorize  conveyance  in  payment  of  agent's  debts,  831. 
does  not  imply  power  to  revoke  contract,  332. 
does  not  imply  power  to  discharge  mortgages,  333. 

but  agent  having  general  authority  to  deal  in  land  may  assume  mort- 
gage as  part  of  the  purchase  price,  333. 
does  not  imply  power  to  invest  proceeds,  334. 
AUTHORITY  TO  SELL  PERSONAL  PROPERTY, 
what  constitutes  such  authority,  335. 
can  not  be  delegated  to  subagent,  when,  186. 
termmates  with  principal's  death,  246. 
when  implies  authority  to  receive  payment,  336. 

authority  to  receive  payment  not  implied  from  possession  of  the  bill, 337 
agent  having  possession  or  other  indicia  of  ownership  may  receive  pay- 
ment, 338. 

agent  to  sell  merely  or  to  solicit  orders,  without  possession  of  goods, 
not  authorized  to  receive  payment,  339. 

when  travelling  salesman  may  receive  payment,  340. 

how  when  payment  to  agent  was  part  of  the  terms  of  sale,  841. 

notice  of  want  of  authority,  342. 
has  no  implied  authority  to  sell  his  samples,  343. 
purchaser  from  can  not  set  off  debt  due  from  agent,  344. 
when  implies  authority  to  hire  horses,  345. 

or  authority  to  procure  other  supplies,  346. 
when  implies  authority  to  warrant  quality,  347,  348,  349,  850. 
when  implies  authority  to  warrant  title,  351. 
does  not  imply  power  to  barter  or  exchange,  85a. 
does  not  imply  power  to  give  credit,  353. 
does  not  authorize  appropriation  to  agent's  use,  354. 
does  not  imply  power  to  release  principal's  right  or  to  pay  his  debts,  855. 
does  not  imply  authority  to  pledge,  356. 

or  to  mortgage,  361. 
does  not  imply  authority  to  promise  commissions  on  subsales,  857. 
does  not  imply  authority  to  sell  at  auction,  358. 
when  authority  is  to  be  executed,  359. 
agent  to  sell  has  no  implied  power  to  rescind  sale,  860. 

may  fix  the  price  and  terms  of  sale,  3C2. 
AUTHORITY  TO   SETTLE, 

authority  to  settle  dispute  does  net  authorize  submission  of  it  to  arbitra- 
tion, 405. 
does  not  authorize  assignment  or  pledge  of  demand,  406. 
when  implied,  to  settle  claims  for  corporation,  86,  note. 


394  INDEX. 

References  are  to  Sections. 

BANKS, 

liability  of,  in  collecting,  514. 

liable  for  ueglect  of  its  own  servants  and  agents,  614. 
when  liable  for  neglect  of  notary  public  employed  by  it,  514. 

liable  when  it  employs  the  notary  by  the  year,  514. 
when  liable  for  neglect  of  correspomlent  banks,  514. 

debtor  himself  not  proper  subagent,  514. 
measure  of  damages  against,  518. 
BANKRUPTCY, 

of  principal  terminates  agent's  authority,  263. 
mere  insolvency  not  enough,  264. 

principal  must  voluntarily  or  involuntarily  surrender  control  of  busi- 
ness, 264. 
agent's  authority  not  revoked  when  coupled  with  an  interest,  265. 
agent's  right  to  compensation  not  defeated  by,  638. 
third  persons  dealing  in  ignorance  of  bankruptcy  protected,  266. 
of  agent,  dissolves  general  business  authority,  267. 
but  not  personal  trusts,  267. 
BARTER. 

authority  to  sell  no  authority  to  barter,  353. 
factor  may  not  barter,  997. 
BILL, 

possession  of  no  evidence  of  authority  to  collect,  337. 
BILL  BROKER, 

definition  of,  929. 

liable  as  seller  where  principal  concealed,  939. 
warrants  his  authority  to  sell,  939. 
and  genuineness  of  signatures,  939. 
but  not  solvency  unless  he  indorses,  939. 
BILL  OF  LADING, 

when  principal  bound  by,  though  goods  not  received,  717. 
BILLIARD  TABLE, 

contracts  to  keep,  when  forbidden,  void,  38. 
BLANKS. 

authority  to  fill, 

in  deed,  liow  conferred,  94. 

how  in  principal's  presence  and  by  his  direction,  98. 
what  execution  of,  binds  principal,  394. 
in  negotiable  paper,  principal  bound  to  bona  fide  holder  though  agent  vio- 
late instructions,  394. 
BOARD, 

when  principal  bound  for  board  of  traveling  salesman,  346. 
BOND, 

given  by  agent,  ratified,  how,  151. 
execution  of,  by  agent,  proper  manner,  418,  430. 
when  agent  bound  by,  421. 
when  attorney  may  execute,  816. 
BOND  OF  INDEMNITY, 

against  consequences  of  proposed  unlawful  act,  invalid,  654. 


INDEX.  S95 

Beferenoes  are  to  Sections. 

BOUGHT  NOTE, 

purpose  and  form  of,  by  broker,  933. 
BRITTON  V.  TURNER,  the  rule  in  tke  case  of,  636,  637. 
BROKERS, 
I.  Definitions  and  DrvisiON8. 

brokers  defined,  13,  937. 

how  differ  from  factors  and  auctioneers,  937. 
different  kinds  of,  928. 

bill  and  note  brokers,  939. 

liable  where  principal  is  not  disclosed,  939. 
exchange  brokers,  930. 
insurance  brokers,  931. 

how  different  from  insurance  agent,  931. 
implied  powers  of  insurance  agent,  931. 
implied  power  of  insurance  broker,  931. 
duties  of,  to  principal,  931. 
may  sue  upon  policy,  when,  931. 
have  a  lien  upon  the  policy  and  its  proceeds,  981. 
merchandise  brokers,  933. 
defined,  933. 

bought  aod  sold  notes  given  by,  933. 
pawnbrokers,  933. 

are  not  ordinarily  agents  at  all.  933. 
real  estate  brokers,  934. 

defined,  934. 
ship  brokers,  935. 

definition  and  functions  of,  935. 
stock  brokers,  736. 

definition  and  functions  of,  936. 
mode  of  dealing,  936. 
powers  and  duties  of,  936,  note. 
n.  Appointment  and  Termination. 
appointed  like  other  agents,  937. 

appointment  must  be  shown,  937. 
no  recovery  for  voluntary  services,  937. 
terminated  as  in  other  cases,  939. 
III.  Implied  Powers  op  Brokers. 
limited  by  scope  and  nature  of  undertaking,  939. 
usage  has  largely  developed  them,  940. 

what  usages  are  valid,  940. 
usual  and  necessary  powers  implied,  941. 
effect  of  his  instructions,  943. 
acting  for  both  parties,  943. 

only  with  principal's  consent,  943. 
delegation  of  powers  not  generally  permitted,  944. 

but  usage  may  sanction  it,  944. 
acts  usually  in  name  of  principal,  945. 

but  usage  may  sanction  different  course,  945. 


896  INDEX. 

Beferences  are  to  Sections. 

BROK^B.5,— Continued. 

price  may  be  fixed  by,  when,  946. 

must  be  usual  or  market  price,  946. 
warranty  of  quality  may  be  given,  when,  947. 

may  sell  by  sample,  when,  947. 
credit  may  be  given  on  sales,  948. 

unless  there  be  usage  to  the  contrary,  948. 
payment  to  does  not  generally  bind  principal,  949. 

is  therefore  at  payer's  risk,  949. 
rescission  by,  unauthorized,  950. 

and  so  of  arbitration  of  disputes,  950. 

IV.  Duties  and  Liabilities  to  Principal. 
bound  to  exercise  reasonable  skill  and  diligence,  951, 

is  liable  for  losses  occasioned  by  failure,  951. 
fidelity  to  principal  is  required,  953. 

cannot  buy  of  or  sell  to  principal,  when,  952. 

usage  will  not  justify  it,  953. 
acting  for  both  parties  only  allowed  with  con<?ent  of  principal,  958. 

without  such  consent,  transaction  voidable,  953. 
instructions  must  be  obeyed,  954. 

except  in  case  of  sudden  emergency,  954. 

disobedience  in  other  cases  subjects  broker  to  liability,  954, 

illustrations  of  this  rule.  954. 
accounts  must  be  kept  and  rendered,  955. 

profits  belong  to  the  principal,  951. 

V.  Duties  and  Liabilities  to  Third  Persons. 
not  liable  when  principal  disclosed,  956. 

if  broker  keeps  within  his  authority,  956. 
liable  if  principal  is  concealed,  957. 

actual  knowledge  of  the  principal  will  alone  relieve    W7. 
liable  where  he  expressly  charges  himself,  958. 

whether  he  has  done  so  is  a  question  of  fact,  958. 
liable  where  he  acts  without  authority,  959, 
liable  for  money  received,  960. 
guilty  of  a  conversion,  when,  961. 

VI.  Rights  of  Broker  Against  Principal. 
1.  Eight  to  Compensation. 

broker  is  entitled  to  compensation,  962. 

usually  a  commission,  963. 
amount  determined,  how,  963. 

usage  or  contract  may  fix,  963. 
employment  by  principal  must  be  shown,  964. 

mere  volunteer  can  not  recover,  964. 
performance  of  undertaking  must  be  shown,  965. 

and  upon  the  terms  specified,  965. 
real  estate  broker  entitled  to  compensation,  when,  956. 

is  not  required  to  obtain  binding  contract,  9G6. 


INDEX.  897 

Beferences  are  to  Sections. 

BROKERS, — Continued. 

if  purchaser  produced  is  able,  willing  and  ready  to  buy  on  tenns  pro- 
posed, broker  has  performed,  966. 

not  necessary  that  broker  should  personally  conduct  negotiation,  960. 

nor  that  he  should  have  been  present,  966. 

nor  that  principal  should  know  that  broker  produced  the  purchaser, 
966. 

if  broker's  efforts  were  procuring  cause,  sufficient,  966. 

purchaser  must  be  one  on  terms  proposed,  966. 

and  be  found  within  time  limited,  966. 

pecuniary  ability  of  purchaser  must  be  shown,  966, 

abandonment  by  broker  forfeits  commissions,  966. 

principal  may  efiEect  sale  himself,  967. 

broker's  commissions  not  to  be  defeated  by  principal,  967. 

as  by  changing  his  terms,  967. 

or  refusing  to  sell,  967. 

or  by  selling  to  another  person,  967. 

or  by  80  negligently  dealing  as  to  lose  sale,  967. 

or  by  principal's  title  proving  defective,  967. 

or  by  his  wife's  refusal  to  sign  deed,  967. 

or  by  failure  of  sale  on  account  of  principal's  false  representations, 
967. 
reasonable  time  must  be  given  to  broker  to  sell,  968. 

when  contract  for  implied,968. 
two  or  more  brokers  employed,  rule  as  to,  969. 

sale  by  one  revokes  authority  of  others,  969. 

one  who  first  sells  entitled  to  the  commission,  969. 

abandonment  by  one  forfeits  his  claim,  969. 

broker  who  has  sold  should  notify  principal,  969. 
loan  broker,  commissions  of,  970. 

is  entitled  when  he  has  found  lender  ready  and  able,  970. 

though  principal  neglects  or  refuses  to  borrow,  970. 

or  security  proves  invalid,  970. 
exchange,  broker  to  efiEect  commissions  of,  971. 

not  defeated  by  principal's  neglect  or  default,  971. 
both  parties,  broker  can  not  have  commissions  from,  973. 

unless  with  consent  of  both,  973, 

usage  can  not  justify,  973. 
middle  man,  how  in  case  of,  973. 

these  cases  are  exceptional,  973. 
illegal  undertakings,  no  commissions  for,  974. 

but  broker  must  have  been  pariiceps  eriminis,  974. 
misconduct  of  broker  forfeits  commissions,  when,  975. 

principal  may  recoup  his  damages,  975. 
unlicensed  broker  can  not  recover,  976. 

but  rule  does  not  apply  to  single  sale  by  private  individual,  976L 
3.  Bight  to  Reimbursement  and  Indemnity. 
is  entitled  to  be  reimbursed  for  lawful  expenses,  977. 

57 


898  INDEX. 

References  are  to  Sections. 

BB.OKEB.Q,— Continued. 

and  to  be  indemnified  against  lial^ility,  977. 

as  where  he  buys  property  by  principal's  order,  977. 
or  sells  property  which  proves  to  be  a  stranger's,  977. 
but  liability  must  have  been  incurred   by  principal's   authority  or 
direction,  977. 
expenses  incurred  when  undertaking  not  performed,  978. 
8.  Right  to  a  Lien. 
no  general  lien  possessed  by  brokers,  979. 

reasons  for  the  rule,  779. 
special  lien  exists  in  certain  cases.  ♦ 

as  in  case  of  insurance  broker,  980. 
no  lien  except  for  debt  due  from  principal,  981. 

no  lien  if  broker  knew  he  was  dealing  with  an  agent,  981. 

VII.  Rights  of  Broker  against  Third  Persons. 
no  right  of  action  generally,  982. 

but  may  sue  in  certain  cases,  983. 

VIII.  Rights  of  PaiNCiPAii  against  Third  Persons. 
entitled  to  all  rights  and  remedies,  984. 

IX.  Rights  of  Third  Persons  against  Princxpai* 
same  as  in  other  cases  of  agency,  98o. 

set  off  of  broker's  debts  not  allowed,  986. 

CALIFORNIA, 

code  provisions  respecting  agency.    See  Appendix. 
CARRIERS  OF  PERSONS. 

liability  for  negligence  of  servants  and  agents,  734-738, 

for  malicious  or  willful  acts  of  servants  or  agents,  740-743. 
(~ij^gn  See  Sales  for  Cash. 

CERTIFICATE  OF  DEPOSIT, 

when  agent  may  take  in  payment,  375. 
CHAMPERTY, 

what  contracts  are  champertous,  845. 
CHATTELS— AUTHORITY  TO  SELL, 
when  the  authority  exists,  335. 
when  implies  authority  to  receive  payment.  838. 
not  implied  from  mere  possession  of  bill,  337. 
ao-ent  having  possession  or  other  indicia  of  ownership  may  receire 

payment,  338. 
agent  to  sell  merely  or  to  solicit  order,   not  authorized  to  receive 

payment,  331). 
when  travelling  salesman  may  receive  payment,  840. 
how  when  payment  to  agent,  part  of  terms  of  sale,  341. 
what  notice  of  want  of  avitliority  is  sufficient,  342, 
implies  no  authority  to  sell  his  samples,  343. 
nor  to  set  off  debt  due  from  himself,  344. 
when  may  hire  horses,  345. 
or  procure  other  supplies,  316. 


INDEX.  89^ 

References  are  to  Sections. 

CHATTELS  — AUTHORITY  TO  Si:LL,—Couti7iued. 
when  implies  authority  to  warrant  quality,  347,  348. 

illustrations  of  ibis,  349. 

limits  of  the  rule,  350. 

no  unusual  or  extraordinary  warranty  authorized,  350. 
when  implies  authority  to  warrant  title,  351. 
when  implies  authority  to  fix  price  and  terms  of  sale,  363. 
Implies  no  power  to  exchange  or  barter,  352. 

nor  to  give  credit,  353. 

nor  to  appropriate  goods  to  his  own  use,  354. 

nor  to  pay  principal's  debts,  355. 

nor  pledge  goods,  356. 

nor  to  mortgage  them,  861. 

nor  to  pay  commissions  for  subsales,  357. 

nor  to  sell  at  auction,  358. 

nor  to  rescind  the  sale,  360. 

nor  to  sell  at  other  times  than  those  specified,  359. 
0HECK8, 

agent  to  receive  payment  no  authority  to  take,  353. 

liable  if  bank  fails  before  payment,  853,  note. 
CHURCH. 

members  of,  when  liable  on  contracts  made  in  their  behalf,  78. 

CLAIM, 

agent  to  settle,  canno*;  buy  and  enforce  against  principal,  467. 
discounts  secured  belong  to  principal,  469. 
CLAIMS— PROSECUTION  OF, 

when  undertakings  for,  are  lawful,  26. 
are  lawful  where  no  improper  means  contemplated,  26. 
are  void  if  personal  solicitation  is  to  be  used.  26. 
CLUBS, 

when  boutid  by  acts  of  agents,  72. 

how  agents  may  be  appointed  by,  72. 

when  members  individually  liable  on  contracts,  73. 

mere  membership  does  not  create  liability,  72. 

unless  so  provided  in  charter  or  by-laws,  73,  74. 
member  in  other  cases  must  assent,  72,  73,  74. 

or  ratify,  72. 
illustrations  of  this  rule,  73. 
the  true  rule  stated,  74. 
are  not  partnerships,  72. 
members  not  liable  as  partners,  79. 
COLLECTION  AGENCY, 

See  Collection  Agent;  Mkrcanttle  Aoenct. 
COLLECTION  AGENT. 

when  authorized  to  collect,  371. 

when  authority  implied  from  having  negotiated  contracts,  873. 
from  possession  of  bill  or  securities,  373. 
from  having  sold  the  goods,  374. 


900  INDEX. 

References  are  to  Sections. 

COLLECTION  AQEIHT,— Continued. 

can  receive  nothing  but  money  in  payment,  375. 

cannot  release  or  compromise  the  debt,  876. 

■when  may  receive  part  payment,  877. 

may  not  grant  extensions  of  time,  378. 

authority  to  collect  interest  does  not  warrant  collection  of  principal,  879. 

cannot  receive  before  debt  is  due,  380. 

cannot  accept  checks,  881. 

cannot  indorse  or  collect  checks  or  notes  taken  in  payment,  883. 

cannot  sell  the  demand,  383. 

nor  speculate  with  proceeds,  884. 

may  give  receipt  or  discharge,  385. 

when  may  sue,  386. 

when  may  sue  in  his  own  name,  887. 

may  employ  necessary  counsel,  388. 

liable  for  loss  of  debt  through  his  neglect,  511. 

must  take  all  steps  reasonably  necessary  to  collect,  611. 
must  protest  paper  when  necessary,  511. 
must  give  necessary  notices,  511. 
must  procure  acceptance  without  delay,  511. 
liable  for  negligence  in  remitting  the  money,  513. 
must  notify  principal  of  collection,  530. 

may  then  await  principal's  instructions  as  to  mode  of  sending  the 
money,  530. 
when  his  undertaking  to  collect  is  absolute,  515. 
construction  of  receipt  "for  collection,"  515. 
is  liable  for  correspondents  and  subagents,  518. 
may  limit  his  liability  by  express  stipulations,  516. 
measure  of  damages  against,  518. 
•when  demand  on,  necessary  before  suit,  631. 
when  chargeable  with  interest,  533. 
COMMERCIAL  TRAVELLER, 

See  Travkllino  Aoekt. 
COMMISSION  MERCHANT, 

See  Factobb. 
COMMISSIONS, 

See  Compensation  of  Aqknt. 
of  broker,  963,  et  seq. 
of  auctioneer,  917,  et  seq. 
of  factor,  1027,  et  seq. 
COMMITTEES. 

when  bound  by  member's  act,  73,  73,  74. 

when  members  of,  individually  liable,  73,  73,  74. 

members  liable  who  assent  or  ratify,  73,  73. 

how  assent  shown,  73. 

liable  vfhen  they  represent  an  irresponsible  principal,  557. 


INDEX.  901 

Beferences  are  to  Sections. 

COMPENSATION  OP  AGENT, 
1.  Right  to  Compensation. 
parties  may  make  express  agreements  concerning,  597. 
express  agreement  conclusive,  598. 
agreement  must  be  express,  when,  699. 
when  promise  to  pay  will  be  implied,  600,  601. 

no  recovery  for  mere  friendly  acts,  600. 

or  for  spontaneous  acts  of  kindness,  600. 

or  for  services  rendered  without  expectation  of  reward,  600. 

gratuitous  services  no  consideration  for  promise  to  pay,  600. 
promise  to  pay  implied  where  services  are  requested,  601. 
or  where  rendered  under  circumstances  implying  promise,  601. 
or  where  party  permits  them  to  be  rendered  knowing  that  agent  expecta 

pay,  601. 
unauthorized  agent  entitled  to,  if  act  is  ratified,  602. 
3.  Amount  of  Compensation. 
express  contract  governs,  603. 
may  be  left  for  principal  to  determine,  604. 

where  no  express  agreement,  reasonable  compensation  implied,  605. 
what  elements  may  be  considered  in  fixing,  606. 
what  evidence  of  value  is  admissible,  607. 

agent  continuing  after  expiration  of  term,  presumed  to  be  at  old  rate, 
608. 
8.  When  Compensation  is  Earned. 
earned  when  undertaking  is  fully  completed,  610, 
how  when  full  performance  a  condition  precedent,  611. 
not  defeated  by  principal's  default,  612. 
immaterial  that  principal  realized  no  profit,  613. 
how  when  authority  revoked  before  performance,  614, 

when  agency  at  will  of  principal,  616. 

when  agency  terminable  on  contingency,  617. 

when  terminable  for  breach  of  conditions,  618. 

when  terminated  for  agent's  misconduct,  619.    'v, 
how  when  authority  was  revoked  without  cause,  630. 
agent's  remedies,  621. 
the  measure  of  damages,  622. 
agent's  duty  is  to  seek  other  employment,  623. 

what  this  means,  623. 

what  employment  agent  is  bound  to  accept,  623. 

what  will  excuse  the  acceptance  of  it,  623. 
when  agent's  right  of  action  accrues,  624. 

doctrine  of  present  breach,  624. 
agent  cannot  recover  if  he  acquiesces  in  discharge,  625. 

but  proof  of  his  acquiescence  must  be  clear,  625. 
agent  not  entitled  to  damages  if  agency  revoked  by  principal's  death, 
626. 

nor  by  his  insanity,  627. 

but  principal's  bankruptcy  does  not  excuse,  628. 


902  INDEX. 

Eeferonceg  are  to  Sections, 

COMPENSATION  OF  AG'E.^T,— Continued. 

how  when  agency  revoked  by  agent's  death,  629. 
when  by  insanity  of  agent,  630. 
when  by  agent's  sickness  or  incapacity,  631. 
how  when  agent  abandons  agency,  632. 

no  forfeiture  if  abandonment  lawful,  632. 

but  otherwise  if  abandonment  was  wrongful,  633. 

bow  when  contract  entire,  634 

and  severable,  634. 
the  rules  stated,  635. 

full  performance  a  condition  precedent,  635. 
the  more  liberal  rule  of  Britton  v.  Turner,  636. 
COMPROMISE, 

attorney  at  law  no  implied  authority  to  compromise  client's  claim,  SIS. 
unauthorized  by  agent,  ratified  by  accepting  proceeds,  149. 
COMPROMISE  OF  CRIME, 
contracts  for  are  void,  27. 

to  piiy  for  discontinuing  proceedings,  27. 
to  suppress  indictment,  27. 
to  prevent  escape  of  criminal,  27. 
to  use  personal  influence  with  prosecuting  officers,  27. 
CONDUCTOR  OF  RAILWAY, 

may  not  employ  physician  to  attend  injured  passenger,  396. 
CONSIGNEE, 

See  Factobs. 
CONSIGNOR, 

See  Factorb. 

CONSTRUCTION  OF  AUTHORITY, 
1.  When  Authority  Conferued  by  Writino,  294,  308. 

construction  of  writing  for  court,  294. 

written  authority  must  be  produced,  294. 

intention  of  the  parties  is  the  true  test.  295. 

how  intention  is  to  be  discovered,  296. 

language  to  be  given  its  legal  effect,  296. 

intention  is  to  be  gathered  from  whole  instrument,  297. 

whether  made  up  of  one  paper  or  more  than  one,  297. 
surroundings  of  the  parties  are  to  be  considered,  298. 
parol  evidence  may  be  resorted  to,  to  explain  uncertainties,  299. 

or  to  identify  the  subject-matter,  300. 
parol  evidence  can  not  enlarge  authority,  301. 
nature  and   extent  of  authority  are  to  be  determined  from  the  writing 

itself,  301. 
where  writing  is  not  indispensable,  agent's  powers  may  be  enlarged  or 

extended  by  parol,  301. 
parol  evidence  can  not  contradict  writing,  302. 
effect  is  to  be  given  to  every  word  and  clause  if  possible,  303. 
transaction  is  to  be  upheld  rather  than  defeated,  304. 
lawful  interpretation  preferred  to  unlawful,  304. 


INDEX.  903 

References  are  to  Sections. 

CONSTRUCTION  OF  AUTHORITY,— ConimMed. 
authority  is  to  be  coustrued  in  light  of  lex  loci,  305. 
general  powers  limited  by  specific  object,  306. 

and  by  recitals,  306. 
limited  to  principal's  private  business,  807. 

only  those  powers  expressly  given  or  necessarily'  implied   are  to  be  in- 
cluded, 308. 
formal  written  instruments  strictly  construed,  308. 
2.  Where  Authority  is  Unwritten  or  Implied,  309,  313. 
more  liberal  construction  prevails,  309. 
general  authority  implies   incidental    powers    necessary  to  accomplish 

object,  311. 
implied  authority  not  to  be  extended  beyond  its  legitimate  scope,  312. 
is  to  be  limited  to  performance  of  like  acts  under  like  circumstances, 

312. 
is  to  be  confined  to  principal's  own  business,  313. 
8.  Where  Authority  is  Ambiguous,  314,  315. 
duty  of  principal  to  make  his  instructions  clear,  314. 
where  authority  is  ambiguous,  construction  adopted  in  good  faith,  binds 

the  principal,  315. 
language  to  be  given  its  plain  and  ordinary  meaning,  315. 
CONSTRUCTION  OP  WRITINGS. 

construction  of  writings  is  for  court,  104. 

whether  writing  produced  creates  agency  is  for  court  to  determine,  104. 
and  if  so,  what  is  its  nature  and  extent,  101. 
CONSTRUCTIVE  SERVICE. 

doctrine  of  repudiated  in  the  United  States,  623. 
readiness  to  perform  may  be  shown  by  other  evidence,  622. 
CONSULTING  PHYSICIAN. 

when  may  recover  for  services,  601. 
CONTINGENT  COMPENSATION, 
when  renders  contract  void,  21. 
attorney  may  contract  for,  844. 
CONTRACT. 

agency  a  legal  relation  based  upon,  1. 
what  contracts  of  agency  are  valid,  18  ei  seq. 
how  should  be  executed  by  agent,  408,  418. 
contracts  under  seal,  418,  430. 
negotiable  instruments,  432,  444. 
simple  contracts,  445,  449. 
when  agent  liable  upon  those  made  by  him,  542,  558. 
when  principal  liable,  695,  713. 
■when  agent  may  sue  upon,  755,  759. 
when  principal  may  sue  upon,  768,  773. 
made  by  agent  acting  for  both  parties  is  voidable,  713. 
CONTRACTOR. 

See  Independent  Contractor. 


904  INDEX. 

Beferences  are  to  Sections. 

CONTRACTS— PROCURING  OF. 

undertakings  to  procure  from  government,  when  void,  24. 
void  if  contemplate  use  of  personal  influence,  24. 
especially  when  for  a  contingent  fee,  24. 
such  contracts  are  judged  by  the  natural  tendency,  24. 
are  valid  when  no  improper  means  contemplated,  24. 
illustrations  of  the  rule,  25. 
CONTRIBUTORY  NEGLIGENCE. 
of  agent  defeats  his  recovery,  670. 

what  constitutes,  670. 
of  principal  defeats  recovery  against  agent,  503. 
CONVENIENCE. 

agency  not  presumed  from  mere  considerations  of,  85. 
CONVERSION. 

when  agent  liable  for,  573,  574. 
when  broker  liable  for,  961. 
when  auctioneer  liable  for,  915. 
when  factor  liable  for,  1050. 
CONVEYANCER. 

duties  and  liabilities  in  preparing  contracts,  830. 
communications  to  not  privileged,  883. 
COUNSEL. 

attorney  may  employ  when,  813. 
agent  for  collection  may  employ,  when,  388. 
CORPORATIONS. 

may  appoint  agents,  44. 

appointment  inferred  from  open  exercise  of  authority,  88. 
may  act  as  agents,  64. 
when  bound  by  acts  of  promoters,  75. 
how  its  agents  may  be  appointed,  97. 

to  execute  deed  of  corporate  realty,  98. 
may  ratify  acts  of  agent,  118. 

may  be  done  indirectly,  118. 
may  ratify  acts  of  promoters,  75. 
may  ratify  by  acquiescence,  158. 

same  results  follow  ratification  as  in  case  of  individual,  167 
cannot  delegate  management,  191. 
when  dissolution  dissolves  agency,  221. 
notice  to  agent  of.  Is  notice  to,  729. 
when  notice  to  director  binds,  730. 
when  notice  to  stockholders  binds,  731. 
CORRUPTION  OF  AGENTS. 

contracts  void,  having  this  for  their  purpose,  37. 
CREDIT. 

agent  may  sell  upon,  when,  353. 
auctioneer  has  no  general  power  to  grant,  900. 
broker  may  give  when  usage  justifies,  948. 
factor  may  sell  upon,  unless  usage  forbids,  990. 


INDEX.  905 

Beferenoes  are  to  Sections. 

CKEDTT,—(hntinued. 

agent  may  purchase  on  principal's,  when,  364. 
a^ent  may  pledge  principal's,  396. 
CRIMINAL  ACTS. 

of  agent,  when  principal  civilly  liable,  for,  745. 
when  principal  criminally  liable  for,  746^ 
CUSTOM. 

See  Usage. 
DAKOTA. 

code  of,  as  to  agency. 

See  Appendix. 
DAMAGES. 
1.  Pkincipal  against  Agent. 
agent  liable  in  for  injuries  caused  by  his  disobedience,  474. 
what  constitutes  the  measure  of,  474. 
must  not  be  remote  or  problematical,  474. 

agent  liable  for  failing  to  remit  as  instructed,  475. 
for  failure  to  ship  goods  as  directed,  475. 
for  failure  to  insure  as  instructed,  475. 
for  selling  to  irresponsible  purchaser,  475. 
for  failure  to  cancel  insurance  as  directed,  475. 
for  giving  credit  contrary  to  instructions,  475. 
when  liable  in  trover,  476. 
what  constitutes  a  conversion,  476. 
agent's  intent  is  immaterial,  477. 
liow  when  agency  was  gratuitous,  478. 

not  liable  for  undertaking  performance,  478. 
but  if  undertaken,  must  be  faithfully  executed,  478. 
agent  not  bound  to  perform  illegal  or  immoral  act,  480, 
departure  from  instructions  may  be  justified  by  sudden  emergency,  481. 
when    agency  substantially  executed  agent  not  liable   for  immaterial 

departure,  483. 
how  when  instructions  were  ambiguous,  484. 
effect  of  custom  on  liability,  485. 
agent  liable  for  loss  from  his  negligence,  488-492. 
must  exercise  usual  precautions,  493. 
when  agent  warrants  that  he  possesses  skill,  496. 
rule  when  agency  gratuitous,  497. 
how  when  employed  in  capacity  implying  skill,  498. 
is  bound  to  exercise  the  skill  he  possesses,  499. 
not  liable  for  unforeseen  dangers,  501. 
contributory  negligence  of  principal  releases  agent,  503. 
principal  entitled  to  full  compensation,  506. 

when  judgments,  costs  and  counsel  fees  elements,  507. 
agent  liable  for  neglect  in  making  loans,  509. 

liable  for  not  effecting  insurance  as  directed,  510. 
liable  for  loss  in  making  collections,  511. 
liable  for  neglect  in  making  remittances,  512. 
when  liable  for  subagent's  neglect,  513. 


906  INDEX. 

References  are  to  Sections. 

DAMAGES,— C<?M<mw«(i. 
2,  Agent  against  Piuncipal. 
express  contract  governs,  603. 
may  be  left  for  principal  to  determine,  604. 
where  no  express  a'^reement,  reasonable  compensation,  605. 
what  elements  may  be  considered,  606. 
what  evidence  of  value  admissible,  607. 
agent  continuing  after  expiration   of  agency,   presumed  to  be  at  old 

rates,  608. 
agent's  claim  not  defeated  by  principal's  default,  612. 

nor  by  fact  that  principal  realized  no  profits,  613. 
when  agent  entitled  to  compensation  if  authority  revoked  ■before  perform- 
ance, 614. 
no  future  compensation  if  authority  is  rightly  revoked,  615. 

nor  where  agency  was  at  principal's  will,  616. 

nor  where  agency  was  terminable  on  a  contingency,  617. 
but  where  agent  is  wrongfully  discharged,  he  is  entitled  to  damages,  618. 
how  when  terminated  for  agent's  misconduct,  619. 

what  misconduct  sufficient,  214,  G19. 
how  when  agent  wrongfully  discharged,  620. 

what  remedies  agent  has,  631. 

the  measure  of  damages  to  be  recovered,  623. 

agent's  duty  to  seek  other  employment,  628. 

what  other  employment  he  is  bound  to  accept,  623. 

•when  agent's  right  of  action  accrues,  624. 
the  doctrine  of  a  present  breach,  624. 

no  damages  if  agent  acquiesces  in  discharge,  625. 
no  damages  if  agency  revoked  by  principal's  death,  626. 

nor  where  revoked  by  principal's  insanity,  627. 

but  principal's  bankruptcy  is  no  defense,  628. 
how  when  revoked  by  death  of  agent,  629. 

or  by  agent's  insanity,  630. 

or  by  agent's  sickness  or  incapacity,  631. 
how  when  performance  abandoned  by  agent,  632,  633. 

1.  when  abandonment  was  justifiable,  632. 

2.  when  abandonment  was  unjustifiable,  633. 
entire  and  severable  contracts,  634. 

agent  forfeits  compensation  by  wrongful  abandonment,  835. 
the  rule  of  Britton  v.  Turner  more  liberal,  636,  637. 

brief  absences  no  abandonment,  638. 

condonation  of  abandonment,  639. 

what  will  excuse  abandonment,  640. 
contracts  not  to  terminate  without  notice,  641,  643. 

what  are  lawful,  641,  642. 

must  be  express,  641,  642. 

what  works  a  forfeiture,  642. 
double  agency,  agent  cannot  recover  for,  643. 

unless  fully  known  and  assented  to,  644. 


INDEX.  907 

Heferences  are  to  Sections. 

DA.UAQ'E.S,— Continued. 

unlawful  undertakings,  no  recovery  for,  645. 

what  these  are,  18  et  acq. 
extra  services,  when  recovery  for,  may  be  had,  646. 

none  when  employed  at  regular  salary,  646. 
recoupment,  principal's  right  of,  647. 

what  damages  may  be  recouped,  648. 

limit  of  the  recovery,  649. 

right  not  cut  off  by  assignment  of  claim,  650. 

none  against  an  infant, 
agent  must  be  reimbursed  for  proper  outlays,  653. 

but  not  for  those  caused  by  his  own  default  or  neglect  653. 
agent  must  be  indemnified  against  losses  or  liabilities  incun-ed  in  princl 
pal's  behalf,  653. 

but  agent  is  not  entitled  to  indemnity  if  act  was  unlawful,  654. 

1.  For  Injuries  from  Risks  incident  to  Business. 
principal  generally  not  liable,  656. 

2.  For  Injuries  from  Negligence  of  Principal. 
principal  responsible  for  his  own  negligence,  657. 

for  dangerous  premises,  653. 
for  dangerous  tools  and  machinery,  659. 

for  injuries  resulting  from  failure  to  repair  as  agreed,  660,  661. 
for  employment  of  incompetent  servants,  663. 
for  injuries  outside  of  employment,  663. 
8.  For  Injuries  from  Negligence  of  his  Oeneral  Superintendent. 
principal  cannot  escape  responsibility  by  employment  of  general  agents, 
664. 
is  liable  for  general  agent's  neglect,  665, 
when  liable  to  agents  of  independent  contractor,  666. 
4.  FiM"  Injuries  from  Negligence  of  his  Fellow-servants. 
principal  in  general  not  liable,  667. 
who  is  a  fellow-servant,  668. 
volunteer  assisting  servant  is,  669. 

contributory  negligence  of  servant  defeats  recovery,  670. 
agreements  to  waive  liability  invalid. 
8.  Thikd  Persons  against  PuincipaIj. 
I.  In  Contract. 
1.  undisclosed  principal. 
liable  when  discovered,  on  simple  contracts,  695,  696. 
the  rule  of  liability  stated,  696. 

not  liable   where  he  has  previously  been  misled  by  other  party  into 

settling  with  agent,  697. 
not  liable  where  other  party  has  trusted  agent  exclusively,  698. 
what  constitutes  election  to  hold  agent  alone,  699. 
election  must  be  made  within  a  reasonable  time,  700. 
principal  may  be  charged  although  name  does  not  app.'ar,  701. 
or  although  other  party  supposed  agent  to  be  principal,  701. 
or  although  contract  is  in  writing,  701. 
rule  does  not  apply  to  contracts  under  seal,  703. 


908  INDEX. 

Beferences  are  to  Sections. 

DAMAGES, — Continued. 
t.  disclosed  principal. 
liable  for  all  of  agent's  authorized  acts  and  contracts,  704,  705. 
other  party  must  ascertain  agent's  authority,  706. 
what  constitutes  authority,  707. 

apparent  authority  not  limited  by  secret  instructions,  708. 
of  general  and  special  agents,  709. 
agent's  authority  must  not  be  exceeded,  710. 
effect  of  ratification,  711. 
unlawful  act  not  enforced,  712. 

principal  not  bound  where  agent  had  adverse  interest,  713. 
liable  for  agent's  admissions  and  representations,  714. 

but  only  when  made  in  respect  to  matter  within  his  authority,  714. 
and  when  made  at  the  time  of  the  transaction,  714. 
must  be  part  of  res  gestm,  714. 
what  embraced  within  res  gestm,  715. 
agent's  authority  must  be  shown  before  admissions,  716. 
liable  for  agent's  representation  of  extrinsic  facts  on  which  authority 
depends,  717. 
n.  InTobt. 

liable  for  agent's  wrongful  acts  expressly  directed,  733. 
liable  for  agent's  neglected  act  in  course  of  employment,  734. 

what  acts  are  within  this  rule,  735,  736. 
not  liable  for  negligence  of  agent  not  in  course  of  employment,  737. 

illustrations  of  the  rule,  738. 
liable  for  agent's  fraudulent  acts  in  course  of  employment,  739. 
liable  for  agent's  malicious  act  in  course  of  employment,  740. 

illustrations  of  this  rule,  741, 
liable  for  agent's  use  of  excessive  force,  742. 
liable  for  agent's  false  or  fraudulent  representations,  when,  743. 

third  persons  remedies  in  such  case,  744. 
liable  civilly  for  agent's  criminal  or  penal  act.  when,  745. 
liable  criminally  for  agent's  criminal  or  penal  act,  when,  746. 
liable  for  acts  of  independent  contractor,  when,  747. 

illustrations  of  this  rule,  748. 
effect  of  ratification  on  liability,  750. 
measure  of  damage  recoverable,  751. 

unsatisfied  judgment  against  agent  no  bar  to  holding  principal,  752. 
4.  Principal  against  Third  Persons. 
principal  may  recover  securities  wrongfully  released,  790. 
may  recover  property  wrongfully  sold  by  agent,  791. 
principal  may  recover  for  injuries  from  third  person's  torts,  793. 
for  enticing  agent  away,  793. 

for  preventing  agent  from  performing  his  duty,  794. 
for  personal  injury  to  agent  causing  loss  of  service,  795. 
third  person  not  liable  for  agent's  own  torts  or  neglect,  796. 
cannot  build  up  claim  on  ratification  of  agent's  unauthorized  act,  179. 
principal  entitled  to  enforce  all  rights  against  third  persons,  767. 


INDEX.  909 

References  are  to  Sections. 

DAMAGES,— Continued. 

may  sue  on  contracts  made  in  his  name,  768. 
may  sue  on  contracts  made  in  his  behalf  but  in  aj^ent's  name,  769. 
except  where  contract  was  personal  to  the  a<;enf,  770. 
or  where  it  was  made  with  agent  exclusively.  771. 
principal's  right  to  sue  superior  to  agent's,  772, 

principal  subject  to  defenses  which  could  have  been  made  af,'ainst  agent, 
773. 
unless  other  party  knew  he  was  di'aling  with  an  agent,  774. 
principal  takes  subject  to  defenses  founded  on  agent's  fraud  or  misrepre- 
sentations, 775. 
third  persons  cannot  dispute  principal's  title,  when,  776, 
principal  may  recover  money  wrongfully  paid  or  used  by  agent,  778,  779, 

783. 
principal  may  follow  and  recover  trust  funds  as  long  as  they  can  be 

identified,  780-782. 
principal  may  recover  property  wrongfully  used  or  disposed  of  by  agent, 

784-787. 
principal  may  recover  property  appropriated  to  agent's  use,  789. 

5.  A.GENT  AGAINST   ThIRD   PERSONS, 

agent  may  recover  money  paid  by  him  under  mistake  or  illegal  contract, 

761. 
what  defenses  open  to  third  person,  762. 
what  damages  agent  may  recover  on  contract,  763. 
agent  may  recover  for  personal  trespass,  764, 
when  agent  may  recover  for  injuries  to  ptiucipal's  property,  705. 

6,  Third  Persons  against  Agents. 
A.  Private  Agents. 

1.    In  Contract, 
agent  not  liable  for  non-feasance,  539. 
liable  for  misfeasance,  540. 
liable  where  he  acts  without  authority,  542,  550. 

liable  where  he  expressly  warrants  his  authority,  5 13. 
liable  where  he  makes  false  representations  as  to,  543. 
liable  where,  while  he  knows  he  has  no  authority,  he  yet  contracts 

as  authorized,  544. 
liable  for  assuming  an  authority  he  does  not  possess,  545 
but  other  party  must  have  acted  in  good  faith.  545. 
implied  warranty  limited  to  matters  of  fact,  545. 
how  where  he  fully  discloses  his  authority,  546. 
how  in  case  of  public  agents,  547. 

contract  must  have  been  one  enforceable  against  principal,  if  author- 
ized, 548. 
in  what  form  of  action  agent  is  liable,  549. 
when  agent  is  liable  on  contract  itself,  550. 
liable  where,  though  authorized,  he  fails  to  bind  principal,  552. 
liable  for  breach  of  implied  warranty  of  authority,  553, 
only  when  it  depends  on  questions  of  fact,  553, 
not  liable  for  defect  in  point  of  law,  553  and  note. 


910  INDEX. 

References  are  to  Sections. 

DAMA0T:.S,— Continued. 

liable  where  he  conceals  agency,  554. 

or  name  of  his  principal,  554. 
not  liable  where  he  makes  a  full  disclosure,  555. 
how  when  agtnt  acts  for  a  foreign  principal,  556. 
liable  where  there  is  no  responsible  principal,  557. 
liable  where  he  contracts  personally,  558. 
not  liable  for  money  paid  over  to  principal  before  notice,  561. 

or  where  before  notice  his  situation  has  been  changed,  563. 
but  is  liable  if  agency  was  not  known,  563. 
liable  for  money  illegally  obtained,  564. 

but  not  if  it  was  voluntarily  paid,  565. 
how  when  agent  was  mere  stockholder,  566. 
when  liable  to  third  persons  for  money  received  for  them,  567. 

what  constitutes  assent  in  such  cases,  568. 
2.  In  Tort. 

not  liable  for  non-feasance,  569. 

not  liable  to  stranger  for  breach  of  duty  owing  to  principal,  569,  670. 

malicious  motive  is  not  material,  570. 
liable  for  misfeasances,  571. 
distinction  between  non-feasance  and  misfeasance,  573. 

principal's  knowledge  or  direction  no  defense,  573. 

fact  that  asent  derived  no  benefit,  no  defense,  573. 

nor  that  he  acted  in  good  faih,  573. 
liability  in  respect  to  subagonts,  575. 
B.  Public  Agents. 

See  PCTBLTC   AOENTS. 

In  case  of  attorneys  at  law. 

See  Attohkets  at  Law. 
in  case  of  auctioneers, 

See  AucTiONEEKS. 


in  case  of  brokers, 
in  case  of  factors. 


See  Bkokers. 

Bee  Factoks. 
DEATH, 

1.   Of   PRINCIPAIi. 

terminates  authority  of  agent,  not  coupled  with  intprest.  240. 
except  so  far  as  already  executed,  240. 
agent  not  entitled  to  damages  for  such  terminalicm,  240. 
when  coupled  with  an  interest,  subsequent  execution  will  be  good, 

241. 
what  interest  will  be  sufficient,  243,  243. 
instances  of  this,  243. 

power  to  collect  when  not  terminated,  243, 
power  of  sale  in  mortgage  not  terminated,  343. 
what  interest  not  sufficient,  244. 
bare  power  to  sell  land,  244. 

although  for  purpose  of  paying  debt,  244 


INDEX.  911 

References  are  to  Sections. 

DI^TE.,— Continued. 

interest  In  compensation  not  enough,  244. 
authority  to  occupy  land,  244. 
or  to  sell  a  chattel,  244. 
or  to  make  repairs,  244. 
or  to  demand  payment,  244, 
or  to  receive  notice  of  dishonor,  244. 
or  to  procure  a  patent,  244. 
effect  on  agent's  right  to  compensation,  626. 
that  death  was  unknown  makes  no  difference,  245. 

payment  to  agent  after  death  of  principal,  not  good,  246. 

or  discount  by  agent,  246. 

or  his  sale  of  real  estate,  246. 

or  his  purchase  of  goods,  246. 

or  his  delivery  of  goods  bargained  by  principal  in  his  life-time, 

246. 
but  where  order  was  sent  for  goods  in  principal's  life-time, 
it  may  be  filled  afterwards,  246. 
of  one  partner  or  joint  owner  dissolves  agency,  247. 
dissolves  authority  of  subagent, 
2.  Of  Agent. 
death  of  agent  terminates  agency,  249. 
unless  coupled  with  an  interest,  250. 
effect  of,  on  compensation,  629. 
death  of  one  of  two  joint  agents  terminates  authority  when  asency  wa» 
joint,  251. 
but  not  when  joint  and  several,  251. 
death  of  agent  terminates  authority  of  his  subagent,  252. 

but  not  where  the  subagent  was  appointed  by  the  authority  of  the 
principal,  252. 
DEDICATION  TO  PUBLIC  USE. 

authority  to  sell  land  does  not  authorize,  830. 
DEED. 

authority  to  execute,  how  conferred,  93. 
to  fill  blanks  in,  how  conferred,  94. 
how  when  executed  in  principal's  presence  and  by  his  direction,  96. 
authority  to  execute  deed  of  corporate  realty,  liow  conferred,  98. 
how  unauthorized  execution  of  deed  ratified,  137. 
rule  relaxed  in  partnership  cases,  138. 
Massachusetts  rule,  139. 
modern  rule  more  liberal,  140. 
unnecessary  seal  disregarded,  141. 
hj  authority  subsequently  conferred,  142. 
by  answer  in  chancery,  143. 
how  to  be  executed,  419,  430. 

must  be  made  in  name  of  principal,  419. 

how  question  of  projier  execution  determined,  420. 

not  enough  that  agent  be  described  as  such,  421. 


912  INDEX. 

Befbrenoes  are  to  Sections. 

BliED.—Goniimied. 

illustrations  of  this  rule,  422,  423. 

when  words  continued  as  descriptio  pertona,  424. 

what  form  is  sufficient,  425. 

how  in  case  of  public  agents,  426. 

whether  necessary  that  fact  of  agency  appear,  437. 

rule  of  Wood  v.  Goodridge,  427. 

how  this  rule  considered,  428. 

not  imperatively  necessary,  429. 

parol  evidence  not  admissible  to  discharge  agent,  430. 
but  may  be  used  to  explain  ambiguity,  430. 
DEL  CREDERE  COMMISSION. 
defined,  14,  986a. 

liability  of  factor  who  sells  under,  1014. 
liability  of  agent  who  sells  under,  520. 
not  within  statute  of  frauds,  1014. 
DELEGATION  OF  AUTHORITY, 
delegation  by  principal,  183. 
delegation  by  agent,  184-197. 
agent  may  not  delegate  personal  trusts,  185. 
judgment  and  discretion  cannot  be  delegated,  186. 
attorneys  cannot  delegate,  187. 
auctioneers  cannot  delegate,  899. 
brokers  cannot  delegate,  944. 
factors  cannot  delegate,  998. 
arbitrators  cannot  delegate  their  powers,  188. 
executors,  guardians,  &c.  cannot  delegate  their  trusts,  189. 
same  rule  applies  to  municipal  corporations,  190. 

and  to  private  corporations,  191. 
exceptions  and  modifications,  192-197. 

1.  mechanical  and  ministerial  duties  may  be  delegated,  198. 

2.  may  delegate  when  necessity  requires  it,  194. 

8.  may  delegate  when  usage  or  course  of  trade  justifies  it,  19S. 

4.  when  delegation  originally  contemplated,  196. 
effect  of  appointment  of  subagent,  197. 
DEMAND. 

when  must  be  made  on  agent  before  suit  against  him,  531. 

on  factor  before  suit,  1025. 

on  attorney,  833. 
DISCRETION. 

may  not  be  delegated,  186. 
DISOBEDIENCE. 

when  principal  may  terminate  agency  for,  214,  215. 
agent  must  obey  all  lawful  instructions,  473,  474. 

liable  for  damages  resulting  from  disobedience,  474. 

what  damages  recoverable,  474,  475. 

agent  may  be  discharged,  474. 

illustrations  of  his  liability,  475. 


mDEx.  94.3 

References  are  to  Sections. 

DISOBEDIENCE,— Cowiinwed. 

liable  for  not  shipping  goods  as  directed,  475. 

for  not  insuring  as  directed,  475. 

for  not  remitting  as  directed,  475. 

for  selling  to  irrespousible  parties,  475. 

for  not  selling  for  cash,  475. 
in  what  form  of  action  agent  liable,  476,  479. 
how  when  agency  was  gratuitous,  478. 
how  when  act  illegal,  480. 

departure  from  instructions  may  be  justified  by  sudden  emergency, 481 
limiiatious  upon  this  rule,  482. 

how  when  authority  has  been  substantially  pursued,  483. 
how  when  instructions  were  ambiguous,  484. 
when  usage  or  custom  will  justify  dcpartuie  fnun,  48.5,  486. 
presumption  is  that  agent  did  not  disobey  his  iusUuctioui,  487. 
DISSOLUTION  OF  THE  AGENCY, 
variety  of  methods,  199. 
by  original  agreement,  200-203. 
by  efflux  of  time,  200. 
by  accomplishment  of  object,  201, 202. 
by  act  of  the  parlies,  203. 

revocation  by  the  principal,  204. 

principal  may  revoke  at  any  time  when  not  coupled  with  an 
intent,  204. 

what  interest  is  sufficient,  205. 

instances  of  this,  206. 

what  interest  not  sufficient,  207. 

bare  powers  may  be  revoked,  208. 

how  power  to  revoke  distint;;uished  from  right  to  revoke,  209. 

when  right  to  revoke  exists,  210. 

what  amounts  to  a  contract  for  a  definite  time,  211. 

how  when  contract  unilateral,  211. 

how  when  there  is  no  mutuality,  211. 

when  definite  time  will  be  inferred,  212. 

when  agency  terminable  for  agent's  incompetence,  213. 

when  agency  terminable  for  agent's  misconduct,  214,  215. 

how  the  authority  may  be  revoked,  216. 

when  sealed  instrument  required,  217. 

express  revocation  not  required — when,  218. 

when  revocation  may  be  implied,  219. 

as  by  disposing  of  subject-matter,  220. 

by  dissolution  of  partnership,  221. 

by  severance  of  a  joint  interest,  222. 
notice  of  revocation  must  be  given,  223. 

to  third  persons  when  agency  was  general,  224. 

none  required  when  agency  was  special,  235. 

notice  must  be  gireo  to  agent,  226. 

68 


914  INDEX. 

References  are  to  Sections. 

DISSOLUTION  OP  THE  AQEl^CY,— Continued. 

when  must  be  given  to  subagent,  227. 
how  notice  should  be  given,  228. 

how  when  authority  a  matter  of  record,  229. 

notice  should  be  unequivocal,  230. 

how  its  sufficiency  is  determined,  231. 
public  agency  not  revocable  at  will  of  principal,  232. 
renunciation  by  agent,  233. 

agent  may  renounce  at  any  time,  283. 

by  mutual  consent,  234. 

abandonment  by  agent  may  be  treated  as,  235. 

agent  may  abandon  if  required  to  do  illegal  act,  236. 

notice  of  renunciation  when  required,  237. 
by  operation  of  law,  238. 

by  death  of  principal,  239. 

death  of  principal  terminates  agency  .not  coupled  with  an  interest, 
240,  241. 

except  so  far  as  executed,  240. 
what  interest  is  sufficient,  242. 
Instances  of  sufficient  interest,  248. 
what  interest  not  sufficient,  244. 
how  when  death  unknown,  245. 
illustrations  of  this,  246. 

how  when  partially  executed  before  death,  248. 
death  of  partner  or  joint  owner  dissolves  agency,  247. 

death  of  principal  dissolves  authority  of  subagent  or  substitute, 
248. 
by  death  of  the  agent,  249. 
death  of  agent  usually  terminates  agency,  249. 

not  when  coupled  with  an  interest,  250. 
when  death  of  one  of  two  agents  terminates  agency,  251. 
death  of  agent  terminates  authority  of  his  substitute,  259. 
by  insanity  of  principal,  253. 

insanity  revokes  or  suspends  agency,  254. 

not  when  coupled  with  an  interest,  256. 

what  evidence  of,  sufficient,  257. 

how  when  other  party  was  ignorant  of  it,  255. 
by  insanity  of  agent,  258,  259. 

how  when  insanity  unknown,  260. 

insanity  of  one  of  two  or  more  agents,  261. 

effect  on  subagent,  262. 
by  bankruptcy  of  the  principal,  263. 

mere  insolvency  not  enough,  264. 

agent's  authority  not  dissolved  when  coupled  with  an  Interest,  265. 

how  when  bankruptcy  unknown,  266. 
by  bankruptcy  of  the  agent,  267. 
by  marriage,  268. 
by  war,  269, 


LNDEX,  916 

Heferences  are  to  Sections. 

DOUBLE  DEALING. 

principal  not  bound  by  contracts,  obligations  or  rights  in  action  obtained 
by,  797. 
by  acting  promptly,  principal  may  rescind,  797. 
or  have  appropriate  relief  in  equity,  797. 
principal  not  bound  when  agent  is  in  secret  employment  of  other  party, 
798. 
principal  may  repudiate  contract,  798. 
may  recover  what  he  parted  with,  798. 
that  he  was  not  in  fact  injured  makes  no  difference,  798. 
DRUMMER. 

see  Tbatellino  Agent. 
DRUNKARD. 

when  may  appoint  agents,  49, 
what  degree  of  drunkenness  incapacitates,  49. 
may  appoint  during  sober  interval.  49, 
may  subsequently  ratify  appointment,  50. 
agent  who  becomes,  may  be  discharged,  215. 
DRUNKENNESS. 

principal  may  discharge  agent  for,  215. 
DUTIES  AND  LIABILITIES  OF  AGENT  TO  PRINCIPAL. 
1.  Agent  must  be  loyal  to  his  trust, 
loyalty  to  his  trust  the  first  duty  of  the  agent,  454. 
must  not  put  himself  in  relations  antagonistic  to  principal,  455. 
makes  no  difference  that  principal  not  injured,  455. 
law  has  regard  to  tendency  of  such  transactions,  455. 
may  not  deal  in  business  of  agency  for  his  own  benefit,  458. 
agent  authorized  to  purchase  for  principal  may  not  buy  for  himself  with- 
out principal's  consent,  457. 
cannot  do  indirectly  what  he  cannot  do  directly,  457. 
same  principle  applies  to  leases,  458, 
what  evidence  of  the  trust  is  sufficient,  459. 
when  rule  does  not  apply,  460. 
agent  authorized  to  sell  or  lease  cannot  become  purchaser  or  lessee,  with- 
out principal's  consent,  461. 
if  he  does  so  the  principal  may  repudiate  it  and  recover  back  his  prop. 

erty,  461, 
makes  no  difference  that  principal  was  not  injured,  461. 
agent  authorized  to  purchase  may  not  purchase  of  himself  without  prin- 
cipal's consent,  463. 
if  he  does,  principal  may  repudiate,  462, 
no  difference  that  he  intended  to  benefit  principal,  463. 
to  what  agents  this  rule  applies,  463, 
disabilities  apply  to  clerks,  subagents  and  partners,  463. 
can  not  do  indirectly  what  he  can  not  do  directly,  464. 
principal  may  ratify  act,  464. 
osage  cannot  defeat,  465. 


916  INDEX. 

Referencas  are  to  Sections. 

DUTIES  AND  LIABILITIES  OP  AGENT  TO  PRINCIPAL,— C(?n«7i««i. 
agent  may  sell  to  or  purchase  from  principal  with  the  latter's  knowledge  and 
consent,  466. 
but  the  transaction  will  be  very  closely  scrutinized,  466. 
agent  employed  to  settle  claim  may  not  buy  and  enforce  it  against  his  prin- 
cipal, 467. 
agent  may  not  acquire  rights  against  hi3  principal  based  upon  his  own 
neglect  or  default,  468. 
can  not  t^ke  advantage  of  defects  in  principal's  title,  468. 
must  first  unequivocally  relinquish  agency,  468. 
doubts  resolved  against  agent,  468. 
all  profits  made  in  the  course  of  the  agency  belong  to  the  principal, 

469. 
whether  they  are  the  fruits  of  the  performance  or  the  violation  of  the 

agent's  duty,  469. 
principal  may  require  agent  to  account  for,  469. 
illustrations  of  this  rule,  470. 
principal  entitled  to  agent's  earnings,  471. 

this  rule  does  not  apply  to  mere  gratuities  received  by  agent,  473. 
2.  To  obey  instructions, 
agent  must  obey  all  lawful  instructions,  473,  474. 

liable  for  damages  resulting  from  disobedience,  474. 
what  damages  recoverable,  474,  475. 
agent  may  be  discharged,  474. 
illustrations  of  his  liability,  475. 
liable  for  not  shipping  goods  as  directed,  475. 
for  not  insuring  as  directed,  475. 
for  not  remitting  as  directed,  475. 
for  selling  to  irresponsible  parties,  475. 
for  not  selling  for  cash,  475. 
in  what  form  of  action  agent  liable,  476,  477. 
how  when  agency  was  gratuitous,  478. 
how  when  act  illegal,  480, 
departure  from  instructions  may  be  justified  by  sudden  emergency, 

481. 
limitations  upon  this  rule,  482. 

how  when  authority  has  been  substantially  pursued,  483. 
how  when  instructions  were  ambiguous,  484. 
when  usage  or  custom  will  justify  departure  from,  48.'),  486. 
presumption  is  that  agent  did  not  disobey  his  instruction,  487. 
3.  Not  to  be  negligent, 
duty  of  agent  to  possess  and  exercise  reasonable  care  and  skill  in  the  per- 
formance of  his  undertaking,  490. 
degree  required  depends  upon  nature  of  undertaking,  491,  493. 
agent  bound  to  exercise  ordinary  precaution,  493. 
is  not  bound  to  exercise  the  highest  care,  494. 
but  is  bound  for  good  faith  and  reasonable  diligence,  495. 
when  agent  warrants  possession  of  skill,  496. 


INDEX.  917 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  PRINCIPAL,— a>»<»»M«i. 
how  when  agency  was  gratuitous,  497. 

liable  where  undertaking  requires  skill,  498. 

is  bound  to  exercise  the  skill  he  possesses,  499. 
now  degree  of  skill  is  to  be  determined,  500. 
agent  is  not  liable  for  unforeseen  dangers,  501. 
agent  not  presumed  to  have  been  negligent,  503. 
agent  is  not  liable  if  principal  also  negligent,  503. 
when  agent  is  liable  for  neglect  of  subagent,  504. 
agent  may  be  relieved  by  ratification,  505. 
what  damages  recoverable,  506. 

when  judgments,  costs  and  counsel  fees  may  be  recovered,  507. 
liable  for  negligence  in  making  loans,  509. 
liable  for  negligence  in  effecting  insurance,  510. 
liable  for  negligence  in  making  collections,  511. 
liable  for  negligence  in  remitting  money,  512. 
liable  for  negligence  of  his  correspondents,  513,  614. 

liability  of  banks,  514. 

liability  of  attorneys,  515. 

liability  of  mercantile  agency,  516. 

liability  of  express  company,  517, 

the  measure  of  damages,  518. 
principal's  right  of  action  against  subagent,  519. 
del  credere  agent  how  liable  to  principal,  520. 
when  agent  liable  for  selling  to  irresponsible  party,  631. 
4.  To  account  for  money  and  property, 
agent  must  account  to  principal  for  all  property,  money,  profits  and  ad- 
vantages, 522. 
need  account  only  to  principal,  523. 
to  whom  subagent  accounts,  524. 
agent  may  not  dispute  principal's  title,  525. 

may  not  allege  illegality  of  transaction  to  defeat  principal's  claim, 
526. 
when  agent  may  compel  principal  to  interplead,  527. 
agent  must  keep  correct  accounts,  528. 

should  keep  principal's  property  and  fund  separate  from  his  own,  529. 
liability  for  commingling,  529. 
at  what  time  agent  should  account,  530. 
when  demand  is  necessary  before  action,  531. 
when  agent  liable  for  interest,  532. 
when  liability  barred  by  limitations,  533. 
in  what  form  of  action  agent  is  liable,  534. 
what  set-offs  agent  may  avail  himself  of,  535. 
how  far  principal  may  follow  trust  funds,  536,  537. 
6.  To  give  notice, 
agent's  duty  to  give  principal  notice  of  material  facts,  638. 


918  INDEX. 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  THIRD  PERSONS. 

A.  Private  Agents. 

1.  In  Contract. 

agent  not  liable  for  non-feasance,  539. 

liable  for  misfeasance,  540. 

liable  where  he  acta  without  authority,  542,  550. 

liable  where  he  expressly  warrants  his  authority,  543. 

liable  where  he  makes  false  representations  as  to,  543. 

liable  where,  while  he  know  he  has  no  authority,  he  yet  contracts 
as  authorized,  544. 

liable  for  assuming  an  authority  he  does  not  possess,  545. 
but  other  party  must  have  acted  in  good  faith,  545 
implied  warranty  limited  to  matters  of  fact,  545. 

how  where  he  fully  discloses  his  authority,  546. 

how  in  case  of  public  agents,  547. 

contract  must  have  been  one  enforceable  against  principal,  if  author 
ized,  548. 
in  what  form  of  action  agent  is  liable,  549. 
when  agent  is  liable  on  contract  itself,  550. 
liable  where,  though  authorized,  he  fails  to  bind  principal,  552. 
liable  for  breach  of  implied  warranty  of  authority,  553. 

only  when  it  depends  on  questions  of  fact,  553. 

not  liable  for  defect  in  point  of  law,  553  and  note, 
liable  where  he  conceals  agency,  554. 

or  name  of  his  principal,  554. 
not  liable  where  he  makes  a  full  disclosure,  555. 
how  when  agent  acts  for  a  foreign  principal,  556. 
liable  where  there  is  no  responsible  principal,  557. 
liable  where  he  contracts  personally,  558. 
not  liable  for  money  paid  over  to  principal  before  notice,  561. 

or  where  before  notice  his  situation  has  been  changed,  562. 
but  is  liable  if  agency  was  not  known,  563. 
liable  for  money  illegally  obtained,  564. 

but  not  if  it  was  voluntarily  paid,  565. 
how  when  agent  was  mere  stockholder,  566. 
when  liable  to  third  persona  for  money  received  for  them,  567. 

what  constitutes  assent  in  such  cases,  568. 

2.  In  Tort. 

not  liable  for  non-feasance,  569. 

not  liable  to  stranger  for  breach  of  duty  owing  to  principal,  569,  67(X 

malicious  motive  is  not  material,  570. 
liable  for  misfeasances,  571. 
distinction  between  non-feasance  and  misfeasance,  573. 

principal's  knowledge  or  direction  no  defense,  573. 

fact  that  agent  derived  no  benefit  no  defense,  573. 

nor  that  he  acted  in  good  faith,  573. 
liability  in  respect  to  subagents,  575. 

B.  Public  Agents. 

See  Public  Ageitts. 


INDEX.  919 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO  AGENT, 
L  Payment  op  Compensation. 
1.  Agent's  Right  to  Compensation,  597. 
express  agreement  as  to  payment  is  conclusive,  598, 
when  agreement  must  be  express,  599. 

between  members  of  same  family,  599, 
when  agreement  to  pay  will  not  be  implied,  600, 
not  where  services  were  gratuitous,  600. 
or  were  obtruded  on  party,  600. 
or  were  rendered  as  mere  act  of  kindness,  600. 
or  under  such  circumstauces  as  repel  presumption,  600. 
when  agreement  to  pay  will  be  implied,  601. 

where  party  employed  in  line  of  his  profession,  601. 
or  is  expressly  requested  to  perform,  601, 
when  unauthorized  act  is  ratified,  601. 
8.  Amount  of  Compensation, 
express  contract,  if  any,  governs,  603. 
may  be  left  for  principal  to  determine,  604. 
where  no  agreement,  reasonable  compensation  implied,  605. 
what  elements  may  be  considered,  606. 
what  evidence  of  value  admissible,  607. 

agent  continuing  after  expiration  of  term,  presumed  to  be  at  former  com- 
pensation, 608. 
8.    When  Compensation  is  considered  to  he  earned,  609. 
earned  when  undertaking  is  fully  completed,  610. 
when  full  performance  is  a  condition  precedent,  611. 
agent's  claim  not  defeated  by  principal's  default,  613. 
nor  by  fact  that  principal  realized  no  profits,  613. 
when  agent  entitled  to  compensation  if  authority  revoked  before  perform- 
ance, 614. 
no  future  compensation  if  authority  is  rightly  revoked,  615. 
nor  where  agency  was  at  principal's  will,  616. 
nor  where  agency  was  terminable  on  a  contingency,  617. 
but  where  agent  is  wrongfully  discharged,   he  is  entitled  to  damages, 

618. 
how  when  terminated  for  agent's  misconduct,  619. 

what  misconduct  sufficient,  314,  619. 
how  when  agent  wrongfully  discharged,  620. 
what  remedies  agent  has,  621. 
the  measure  of  damages  to  be  recovered,  623. 
agent's  duty  to  seek  other  employment,  633. 

what  other  employment  he  is  bound  to  accept,  623. 
when  agent's  right  of  action  accrues,  624. 
the  doctrine  of  a  present  breach,  624. 
no  damages  if  agent  acquiesces  iu  discharge,  625. 
no  damages  if  agency  revoked  by  principal's  death,  626. 
nor  where  revoked  by  principal's  insanity,  637. 
but  principal's  bankruptcy  is  no  defense,  628. 


920  INDEX. 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO  AGENT,— Cfo»rt'ni*«i. 
how  when  revoked  by  death  of  ageat,  639. 
or  by  agent's  insanity,  630. 
or  by  agent's  sickness  or  incapacity,  631. 
how  when  performance  abandoned  by  agent,  632,  638. 

1.  when  abandonment  was  justifiable,  632. 

2.  when  abandonment  was  unjustifiable,  633. 
entire  and  severable  contracts,  634. 

agent  forfeits  compensation  by  wrongful  abandonment,  635. 

the  rule  of  Britton  v.  Turner  more  liberal,  636,  637. 
brief  absences  no  abandonment,  638. 
condonation  of  abandonment,  639. 
what  will  excuse  abandonment,  640. 
contracts  not  to  terminate  without  notice,  641,  642. 
what  are  lawful,  641,  642. 
must  be  express,  641,  643. 
what  works  a  forfeiture,  642. 
double  agenc}'',  agent  cannot  recover  for,  643. 
unless  fully  known  and  assented  to,  644. 
unlawful  undertakings,  no  recovery  for,  645. 

what  these  are,  18  et  seq. 
extra  services,  when  recovery  for,  may  be  had,  646. 

none  when  employed  at  regular  salary,  646. 
recoupment,  principal's  right  of,  647. 

what  damages  may  be  recouped,  648. 
limit  of  the  recovery,  649. 
right  not  cut  off  by  assignment  of  claim,  GjO. 
none  ajjainst  an  infant. 
II.  Agent's  Right  to  Reimbttrsement. 
agent  must  be  reimbursed  for  proper  outlays,  652. 

but  not  for  those  caused  by  his  own  default  or  neglect,  652. 
ni.  Agent's  Right  to  Indemnity. 
agent  must  be  indemnified  against  losses  or  liabilities  incurred  in  princi- 
pal's behalf,  653. 
but  agent  is  not  entitled  to  indemnity  if  act  was  unlawful,  654. 
rV.  Agent's  Right  to  Protection  from  Injury. 

1.  FVom  Risks  incident  to  Business. 
principal  generally  not  liable,  656. 

2.  From  Negligence  of  Principal. 

principal  responsible  for  his  own  negligence,  657. 
for  dangerous  premises,  658. 
for  dangerous  tools  and  machinery,  659. 

for  injuries  resulting  from  failure  to  repair  as  agreed,  660,  661. 
for  employment  of  incompetent  servants,  662. 
for  injuries  outside  of  employment,  663. 
8.  For  Negligence  of  Ms  General  Superintendent. 
principal  cannot  escape  responsibility  by  employment  of  general  agents, 
664. 


INDEX.  921 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OP  PRINCIPAL  TO  AQENT.—Oontintud. 
is  liable  for  general  agent's  neglect,  6G5. 
when  liable  to  agents  of  independent  contractor,  668. 
4.  FW  Negligence  of  his  Fellow-servants 
principal  in  general  not  liable,  667. 
who  is  a  fellow-servant,  668, 
volunteer  assisting  servant  is,  669. 

contributory  negligence  of  servant  defeats  recovery,  670. 
agreements  to  waive  liability  invalid,  671. 

V.  Agent's  Right  op  Lisn. 
in  general.  673. 

liens  defined  and  classified,  673. 

foundation  of  the  claim,  674. 

nature  of  the  lien,  675, 

possession  necessary  to,  676, 

possession  must  have  been  lawfully  acquired,  677. 

and  must  be  continuous,  678. 

and  have  been  acquired  in  course  of  employment,  679. 
no  lien  if  contrary  to  agreement,  680. 
waiver  of  by  inconsistent  conduct,  681, 
claim  of  lien  no  waiver  of  personal  remedies,  682. 
how  lien  enforced,  683, 
agent  entitled  to  lien,  684, 
is  ordinarily  a  particular  lien,  685, 
for  what  sums  it  attaches,  686, 

VI.  Agknt's  Right  op  Stoppage  m  Transit. 
agent  liable  for  price  of  goods  may  stop  them,  687. 

right  exercised  as  in  other  cases,  688, 
such  an  agent  may  retain  title  till  goods  are  paid  for,  689 
DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO   THIRD  PERSONa 
I.  In  Contract. 
I.  undisclosed  principal. 
liable  when  discovered,  on  simple  contracts,  695,  696, 
the  rule  of  liability  stated,  696. 

not  liable   where  he  has  previously  been  misled  by  other  party  into 
settling  with  agent,  697, 

not  liable  where  other  party  has  trusted  agent  exclusively,  698. 
what  constitutes  election  to  hold  agent  alone,  699. 

taking  agent's  note  does  not,  699, 

nor,  charging  goods  to  him,  699. 

or  sending  him  the  bill,  699. 

or  filing  claim  against  his  estate,  699, 

nor  commencing  action  against  him,  699. 
election  must  be  made  within  a  reasonable  time,  700. 
principal  may  be  charged  although  name  does  not  appear,  701. 

or  although  other  party  supposed  agent  to  be  principal,  701. 

or  although  contract  is  in  writing,  701. 

rule  does  not  apply  to  contracts  under  seul,  703. 


922  INDEX. 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO  THIRD  PERSONS. 
— Continued. 
%.  disclosed  principal. 
liable  for  all  of  agent's  authorized  acts  and  contracts,  704,  705. 
other  party  must  ascertain  agent's  authority,  706. 
what  constitutes  authority,  707. 

apparent  authority  not  limited  by  secret  instructions,  708. 
of  general  and  special  agents,  709. 
agent's  authority  must  not  be  exceeded,  710. 
effect  of  ratification,  711. 
unlawful  act  not  enforced,  712. 

principal  not  bound  where  agent  had  adverse  interest,  713. 
liable  for  agent's  admissions  and  reiSresentations,  714. 

but  only  when  made  in  respect  to  matter  within  his  authority,  714. 
and  when  made  at  the  time  of  the  transaction,  714. 
must  be  part  of  res  gesta,  714. 
what  embraced  within  res  gesta,  715. 
agent's  authority  must  be  shown  before  admissions,  716. 
liable  for  agent's  representation  of  extrinsic  facts  on  which  authority 

depends,  717. 
notice  to  the  agent  is  notice  to  the  principal— when,  718. 
reasons  for  the  rule,  719. 

notice  acquired  during  agency  binds  principal,  720. 
how  if  notice  acquired  prior  to  agency,  721. 
does  not  bind  where  agent  forbidden  to  communicate,  723. 
does  not  bind  when  agent  is  acting  adversely,  723. 
•what  notice  includes,  724. 
actual  notice,  724. 
constructive  notice,  724. 
notice  binds  only  when  in  reference  to  matter  within  agent's  author 

ity,  725. 
notice  after  authority  terminated  does  not  bind,  726. 
must  be  of  a  material  matter,  727. 
when  notice  to  subagent  binds  principal,  728. 
these  rules  apply  to  corporations,  729. 
when  notice  to  director  binds,  730. 
when  notice  to  stockholder  binds,  731. 
n.  In  Tokt. 

liable  for  agent's  wrongful  acts  expressly  directed,  733. 
liable  for  agent's  neglected  act  in  course  of  employment,  734. 

what  acts  are  within  this  rule,  735,  736. 
not  liable  for  negligence  of  agent  not  in  course  of  employment,  787. 

illustrations  of  the  rule,  738. 
liable  for  agent's  fraudulent  acts  in  course  of  employment,  739. 
liable  for  agent's  malicious  act  in  course  of  employment,  740. 

Illustrations  of  this  rule,  741. 
liable  for  agent's  use  of  excessive  force,  742, 
liable  for  agent's  false  or  fraudulent  representations,  when,  743. 
third  person's  remedies  in  such  case,  744. 


INDEX.  923 

Beferences  are  to  Sections. 

DUTIES  AND  LIABILITIES  OF  PRINCIPAL  TO  THIRD  PERSONS, 
— Continued. 
liable  civilly  for  agent's  criminal  or  penal  act,  when,  745. 
liable  criminally  for  agent's  criminal  or  penal  act,  when,  746. 
liable  for  acts  of  independent  contractor,  when,  747. 

illustrations  of  this  rule,  748. 
effect  of  ratification  on  liability,  750. 
measure  of  damage  recoverable,  751. 

unsatisfied  judgment  against  agent  no  bar  to  holding  principal,  753. 
DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  AGENT, 
right  of  action  on  agent's  contract  generally  in  principal  alone,  753. 
but  agent  may  sue  on  contract  made  with  him  personally,  755. 
or  where  he  has  a  beneficial  interest,  756. 
or  where  the  contract  is  under  seal,  758. 
agent's  right  depends  on  contract,  759. 
right  of  assumed  agent  to  show  himself  principal,  760. 
agent  may  recover  money  paid  by  him  under  mistake  or  illegal  contract, 

761. 
what  defenses  open  to  third  person,  762. 
what  damages  agent  may  recover  on  contract,  763. 
agent  may  recover  for  personal  trespass,  764. 
when  agent  may  recover  for  injuries  to  principal's  property,  765. 
DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  PRINCIPAL, 
principal  may  recover  securities  wrongfully  released,  790. 
may  recover  property  wrongfully  sold  by  agent,  791. 
principal  may  recover  for  injuries  from  third  person's  torts,  793. 
for  enticing  agent  away,  793. 

for  preventing  agent  from  performing  his  duty,  794. 
for  personal  injury  to  agent  causing  loss  of  service,  795. 
third  person  not  liable  for  agent's  own  torts  or  neglect,  796. 
principal  not  bound  where  third  person  colludes  with  agent,  797. 

nor  when  agent  in  secret  employment  of  other  party,  798. 
principal  not  bound  by  judgment  against  agent  to  which  he  was  not  a 

party,  799. 
cannot  be  built  up  on  ratification  of  agent's  unauthorized  act,  179. 
principal  entitled  to  enforce  all  rights  against  third  persons,  767. 
may  sue  on  contracts  made  in  his  name,  768. 
may  sue  on  contracts  made  in  his  behalf  but  in  agent's  name,  769. 
except  where  contract  was  personal  to  the  agent,  770. 
or  where  it  was  made  with  agent  exclusively.  771. 
principal's  right  to  sue  superior  to  agent's,  772. 
principal  subject  to  defenses  which  could  have  been  made  against  agent, 

773. 
unless  other  party  knew  he  was  dealing  with  an  agent,  774. 

principal  takes  subject  to  defenses  founded  on  agent's  fraud  or  misrepre- 
sentations, 775. 

third  persons  cannot  dispute  principal's  title,  when,  776. 

principal  may  recover  money  wrongfully  paid  or  used  by  agent,  778,  779, 
783. 


924  INDEX. 

References  are  to  Sections. 

DUTIES  AND  LIABILITIES  OP  THIRD  PERSONS  TO  PRINCIPAL, 

— Continued. 
principal  may  follow  and  recover  trust  funds  as  long  as  they  can  bo 
identified,  780. 
and  it  makes  no  difference  that  form  has  been  changed,  780. 
unless  funds  come  into  the  hands  of  a  bona  fide  holder  without 

notice,  780,  781. 
where  indorsement  is  restrictive  third  persons  are  charged  with 
notice,  783. 
principal  may  recover  property  wrongfully  used  or  disposed  of  by  agent, 

784. 
principal's  title  not  divested  without  his  consent,  785. 
mere  possession  of  property  no  evidence  of  authority  to  dispose  of  it, 
786. 
but  may  be  when  coupled  with  indicia  of  ownership,  787. 
principal  may  recover  property  appropriated  to  agent's  use,  789. 
EARNINGS  OF  AGENT, 

prinoipal  entitled  to,  when,  471-472 
ELECTION, 

principal's  right  of,  whether  to  ratify  or  not,  154. 

right  must  be  exercised  within  a  reasonable  time,  155. 
third  person's  right  of,  whether  to  hold  principal  or  agent,  696,  698. 
what  constitutes  a  binding  election,  699. 
taking  agent's  note,  does  not,  699. 
charging  goods  to  him,  does  not,  699. 
sending  bill  to  him,  does  not,  699. 
filing  claim  against  his  estate,  does  not,  699. 
commencing  action  against  him,  does  not,  699. 
right  must  be  exercised  within  reasonable  time,  700. 
ELECTIONS, 

services  to  improperly  influence,  unlawful,  30. 
what  services  are  legitimate,  31. 
EMBEZZLEMENT  BY  AGENT, 

terminates  his  authority,  215. 
EMERGENCY, 

may  justify  departure  from  instructions,  when,  481. 
ENTICING  AGENT  AWAY, 

principal  may  recover  damages  for,  793. 
ENTIRE  CONTRACT, 

all  void  when  part  void,  40. 
when  contract  is  entire,  634. 
attorney's  contract  to  serve  is  entire,  856. 
client's  contract  to  employ,  is  not,  856. 
ESTOPPEL, 

when  principal  estopped  to  deny  agency,  83,  84. 

illustrations  of  its  application,  86,  87. 

limitations  upon  this  rule,  85. 

when  tbx-d  persot  estopped  from  suing  principal,  698,  700. 


INDEX.  825 

References  are  to  Soctions. 

EVIDENCE, 

authority  caDnot  be  established  by  agent's  declarations,  100. 

nor  be  enlarged,  extended  or  renewed,  100. 
fact  of  agency  must  be  first  established,  100. 
agent's  statements  and  admissions  evidence  against  himself,  100. 
principal's  recognition  of  agency  pertinent,  100. 
agent's  authority  not  established  by  general  reputation,  101. 
agent's  authority  may  be  shown  by  agent's  testimony,  103. 
when  in  writing,  writing  must  be  produced,  103. 

except  on  collateral  issue,  103. 

writing  to  be  construed  by  court,  104. 

undisputed  facts  to  be  construed  by  court,  105. 
when  disputed,  question  of  authority  is  for  the  jury,  106. 
whatever  has  a  tendency  to  prove  agency,  admissible,  108. 

although  not  full  or  satisfactory,  106. 
sufficiency  of  is  for  jury,  106. 
parol  evidence,  admissibility  of. 

See  Parol  Evidence. 
ETTDENCE— CONTRACTS  TO  PROCURE, 
contracts  to  procure  evidence,  when  void,  34. 
contracts  to  suppress,  are  void,  34. 

to  procure  witnesses  to  testify  in  certain  manner,  void,  84. 

to  furnish  evidence  to  win  a  case,  void,  34. 

to  destroy  evidence,  void,  34. 
EXCESSIVE  EXECUTION, 

when  excess  may  be  disregarded  414,  416. 
EXCESSIVE  FORCE, 

by  agent,  when  principal  liable  for,  743. 
EXCHANGE, 

broker  to  eCect,  entitled  to  commissions,  when,  971. 
unauthorized,  ratified  by  keeping  proceeds,  150. 
authority  to  sell,  does  not  justify,  353. 
factor  cannot  exchange  property,  997 
EXCHANGE  BROKERS, 
defined,  930. 

entitled  to  commissions,  when,  971. 
EXECUTION, 

power  of  attorney  at  law  to  issue  and  control,  820,  812,  818. 
EXECUTION  OP  AUTHORITY, 

primary  purpose  of,  is  to  bind  principal,  408. 

agent  must  act  within  scope  of  his  authority,  409. 

necessity  of  proper  execution,  410. 

how  question  determined,  411. 

execution  within  and  exceeding  authority,  413. 

slight  deviations  do  not  invalidate,  413. 

when  separable,  authorized  part  may  stand,  414. 

when  execution  lacks  essential  elements  principal  is  not  bound,  415. 

summary  of  rules,  416. 


926  INDEX. 

Beferences  are  to  Seotiona. 

EXECUTION  OF  AVTKOniTY,— Continued. 

execution  should  be  in  name  of  principal,  417. 
EXECUTION  OP  NEGOTIABLE  PAPER, 
the  proper  manner,  432. 
the  general  rule,  433. 

not  necessary  that  agent's  name  appear,  434. 

not  enough  that  principal  be  named  only  in  body  of  instrument,  485. 
how  where  intent  to  charge  principal  is  manifest,  486. 
when  no  principal  is  disclosed,  agent  is  bound,  488. 
how  when  drawn  payable  to  agent's  order  and  indorsed  by  him,  439. 
how  when  made  by  public  agents,  440, 
admissibility  of  parol  evidence  to  show  intent,  441, 
what  rules  applied,  442. 
the  true  rule,  443. 
EXECUTION  OF  SEALED  INSTRUMENTS, 

must  purport  to  be  made  and  sealed  in  name  of  principal,  419. 

how  of  this  rule,  419. 
how  determined  whether  agent's  deed  or  principal's,  420. 
not  enough  that  agent  be  described  as  such,  421. 
illustrations  of  this  rule,  422,  423,  424. 
when  addition  mere  descriptio  personae,  424. 
what  form  is  suflacient,  425. 
distinction  in  case  of  public  agents,  426. 
whether  necessary  that  deed  should  purport  to  be  executed  by  an  agent, 

427. 
rule  of  Wood  v.  Goodridge,  427. 
how  of  this  rule,  427,  428. 
not  generally  approved,  428. 
how  should  be,  429. 
parol  evidence  not  admissible  to  discharge  agent,  430. 
EXECUTION  OF  SIMPLE  CONTRACTS, 
the  proper  manner,  445. 
intention  of  parties  is  the  true  test,  446. 
agent  may  bind  himself  by  express  words,  447. 
how  when  contrary  intention  manifest,  448. 
admissibility  of  parol  evidence  to  show  intent,  449. 
EXECUTOR, 

can  not  purchase  at  his  own  sale,  463. 
can  not  delegate  his  trust,  189. 
EXEMPLARY  DAMAGES, 

when  awarded  against  principal  for  agent's  acts,  74L 
EXPRESS  COMPANY, 

liable  for  default  in  collecting  claims,  517. 
liable  for  default  of  notary  employed  by  it,  617. 
measure  of  damages  against,  618. 
EXTENSION  OF  TIME, 

agent  to  receive  payment  cannot  give,  878. 
factor  may  not  grant,  1002. 


INDEX.  927 

Beferences  are  to  Sections. 

EXTRA  SERVICES, 

wbeD  extra  compensation  may  be  recovered  for,  646. 

FACTORS. 

L    DKFrNlTIONS  AND   DISTINCTIONS. 

factor  defined,  986a. 

differs  from  broker  how,  986a. 

synonymous  with  commission  merchant,  986a. 

del  credere  commission  defined,  986a. 

super  cargo  defined,  986a. 

consignee,  use  of  term,  986a. 

II.    How  APPOINTED. 

like  other  agents,  987. 

no  formal  authorization  necessary,  987. 

appointment  may  be  inferred  from  conduct,  987. 
in.  Implied  powers  op  factors. 
possess  the  implied  and  incidental  powers  necessary  to  accomplish  object, 

988. 

provided  they  are  not  forbidden,  988. 
usage  confers  what  powers,  989. 

factor  presumed  to  be  authorized  to  observe,  989. 

must  perform  in  the  usual  manner,  989. 
credit  sales  may  be  made  in  absence  of  usage  otherwise,  990. 

factor  may  take  note  for  price,  990. 

and  collect  or  discount  it  for  principal,  990. 

but  if  discounts  for  himself,  makes  paper  his  own,  990. 
may  sell  in  his  own  name,  991. 

unless  instructed  otherwise,  991. 
warranty  of  quality,  factor  may  give  when  usual,  993. 
payment  may  be  received  by  factor,  992. 

he  may  give  proper  receipt,  992. 
pledge,  factor  has  no  implied  authority  to,  for  his  own  debts,  994 

can  not  deposit  bill  of  lading  in,  994. 

usage  can  not  confer  power,  994. 

may  pledge  to  pay  charges  on  goods,  994. 
or  to  meet  principal's  drafts,  994. 

bona  fide  pledgee  protected  to  amount  of  factor's  lien,  994 
unauthorized  pledge  may  be  ratified,  994. 

Factor's  Acts  confer  power  to  pledge,  995. 

in  what  States  they  exist,  995,  note. 

construction  of  these  acts,  995. 
pay  his  own  debts,  factor  can  not  use  principal's  property  to,  998L 

5ona./?de  holder  gets  no  title,  996. 
barter  or  exchange,  factor  not  authorized  to,  997. 

such  transaction  does  not  divest  principal's  title,  997. 
delegate  his  authority,  factor  can  not,  998, 

unless  usage  or  necessity  justifies  it,  998. 
compromise  of  debt  unauthorized,  999. 

or  discharge  of  it  without  full  payment,  999. 


928  INDEX. 

Beferenoes  are  to  Sections. 

FACTORS.— Continued. 

arbitration,  factor  has  no  power  to  submit  to,  a  dispute  arising  out  of  hii 

transactions,  1000. 
rescission  of  sale,  by  factor  is  unauthorized,  1001. 

or  a  discharge  of  purchaser  from  his  liability  to  buy,  lOOL 
extending  time,  by  factor  unauthorized,  1002. 

his  authority  terminates  with  the  sale,  1002. 
payment,  factor  can  receive  nothing  but  money  in,  1003. 
cannot  receive  goods  or  depreciated  currency,  1003. 
negotiable  paper,  factor  can  not  bind  principal  by  making,  accepting  or 

indorsing,  1004. 
insurance,  factor  not  bound  to  effect  unless  instructions  or  usage  require 

it,  1005. 
may  effect  insurance  in  his  own  name,  1005. 
and  to  full  amount  of  goods,  1005. 
IV.    Duties  and  Liabilitiks  to  Principal. 
care  and  prudence  must  be  exercised  by  factor,  1006. 

liable  for  loss  from  negligence,  when,  1006. 
good  faith  is  required,  1007. 

must  not  put  himself  in  antagonistic  position,  1007. 
obedience  to  instructions  is  required,  1008. 

advances  or  sudden  emergency  may  excuse,  1008. 
liable  for  loss  occasioned  by  disobedience,  1008. 

not  if  instructions  were  ambiguous,  1008. 
acceptance  of  consignment  binds  factor,  1008. 
damages  recoverable  against,  1008. 
instructions  to  sell,  factor's  general  duty  to  obey,  1009. 

liable  for  loss  from  disobedience,  1009. 
reimbursing  himself,  factor's  right  to  sell  for,  1009. 
must  not  exceed  the  necessity  of  the  case,  1009, 
right  to,  may  be  waived,  1009. 
measure  of  damages  against  factor,  1009. 

during  what  period,  prices  may  be  considered,  1009. 
cash,  instructions  to  sell  for,  1010. 

usage  can  not  justify  violation  of,  1010. 
insurance,  instructions  to  effect,  1011. 

factor  liable  as  insurer,  for  disobedience,  1011. 
informing  principal,  duty  of  factor  as  to,  1012. 

illustrations  of  this  duty,  1012. 
responsible  purchaser,  duty  to  sell  only  to,  1013. 

factor  liable  as  guarantor,  1013. 
del  credere  commissions,  effect  of,  1014. 
factor  liable  as  principal  debtor,  1014. 
does  not  extend  his  powers  or  relieve  him  from  duty,  1014 
undertaking  of  not  within  statute  of  frauds,  1014. 
caring  for  property,  duty  of,  1015. 

must  exercise  reasonable  care  and  prudence,  1015. 
discretion  as  to  sales,  1016. 

factor  may  exercise,  when,  1016. 


INDEX.  929 

References  are  to  Sections. 

TACTOUS.— Continued. 

place  of  sale,  what  to  be,  1017. 

presumed  to  be  at  place  where  factor  resides,  1017. 
time  of  sale,  must  be  reasonable,  1018. 

liable  if  he  neglects  to  sell  within,  1018. 
price,  must  sell  at  market,  1019. 

liable  for  loss  from  under  sale,  1019. 
collection  of  price,  duty  as  to,  1020. 

liable  if  lost  by  negligence,  1020. 
accounts,  duty  of  factor  to  keep,  1021. 

of  different  principals  to  be  kept  separate,  1021. 
should  not  take  one  note  for  several  debts,  1021. 
acceptance  of,  when  final,  1023, 
conclusiveness  of,  1030. 
funds,  not  obliged  to  keep  separate,  1028. 

but  makes  himself  debtor  by  commingling,  1023. 
accounting  for  money  and  property,  1023. 
is  bound  to  account,  1023. 
at  what  time,  1023. 
what  covered  by,  1023. 
demand  necessary  when,  1023. 
can  not  dispute  principal's  title,  1023. 
or  allege  illegality  of  transaction,  1023. 
remitting  profeeds,  duty  as  to,  1024. 
should  obey  instructions  as  to,  1024. 
liable  for  loss  when,  1024. 
action  against,  when  principal  may  bring,  1025. 
only  after  demand,  1025. 
interest  may  be  charged  when,  1025. 
aubagent,  factor  liable  for,  when,  1026. 
V.    Rights  of  Factor  against  Principal. 
a.  eommisstons. 
factor  is  entitled  to  commissions,  1027. 
amount  of,  how  determined,  1027. 
forfeited  by  gross  fraud,  1027. 

or  by  rendering  false  accounts,  1027. 
or  by  embezzling  proceeds,  1027. 
or  by  violating  his  instructions,  1027. 
no  compensation  if  payment  would  reduce  below  amount  guaranteed 

by  factor,  1027. 
double  commissions  can  be  recovered  only  when  double  agency  fully 
understood  and  agreed  to,  1028. 
h.  reimbursement. 
factor  is  entitled  to  reimbursement  for  lawful  advances  and  disbursements, 
1029. 
has  personal  claim  therefor  against  principal,  1029. 
not  obliged  to  wait  until  goods  are  sold,  1029. 
del  eredere  commission  does  not  defeat  this  right,  1029. 

59 


930  mDEx. 

Heferences  are  to  Sections. 

FAOTO'RS.—Cbniimud. 
e.  indemnity. 
factor  must  be  indemnified  against  liability,  when,  1031. 

what  this  rule  covers,  1031. 
d.  lien. 
factor  is  entitled  to  a  lien  for  his  advances  and  disbursements.  1033. 
lien  does  not  exist  if  balance  of  account  is  against  factor,  1033. 

nor  tf  it  would  be  contrary  to  intention  of  parties,  1033. 
lien  is  special  interest  only,  1034. 

principal  not  deprived  of  his  ownership  by,  1034. 

principal  may  remove  at  any  time  by  payment,  1034. 

is  a  privilege  personal  to  the  factor,  1034. 

cannot  be  transferred  to,  or  set  up  by  another,  1034. 
lien  attaches  only  on  lawful  possession,  1035. 

what  constructive  possession  will  support,  1035. 
who  may  confer  lien,  1036. 

statutes  enlarging  this  rule,  1036. 
how  lien  may  be  lost,  1037. 

Buperior  to  claims  of  creditors  and  purchasers,  1037. 

garnishment  of  factor  does  not  defeat,  1037. 

factor  may  waive  his  lien,  how,  1037. 
enforcement  of  lien  in  what  manner,  1009,  1088. 

VI.  Rights  of  Factor  against  Third  Persons. 
may  sue  for  price  of  goods  sold  by  him,  1039. 

his  right  to  sue  subordinate  to  principal's,  1039. 

unless  factor's  lien  equals  or  exceeds  value  of  goods,  1039. 
factor  may  stop  money  in  hands  of  purchaser,  1039. 

whether  factor  must  offer  purchaser  indemnity,  1039. 
may  sue  on  contracts  made  in  his  own  name,  1040. 
as  for  breach  of  contract  of  purchaser,  1040. 
or  of  contract  of  storage,  1040. 
or  in  tort  for  conversions  of  or  injuries  to  the  goods,  1041. 

VII.  Rights  op  Principai.  against  Third  Persons. 
may  sue  for  and  recover  price  of  goods,  1042. 

right  of  principal  superior  to  that  of  factor,  1042. 

except  as  to  extent  of  factor's  lien,  1042. 

fact  that  factor  took  note  does  not  defeat  principal's  action,  1043. 

except  that  where  one  note  is  talien  for  goods  of  several  principals,  one 
can  not  sue  on  it,  1042. 

nor  can  one  of  several  principals  sue  for  his  proportion  of  entire  price 
though  no  note  was  taken,  1042. 
what  defenses  may  be  made  against  principal,  1043. 

no  set-off  if  purchaser  knew  or  had  reason  to  believe  factor  was  sell- 
ing goods  of  another,  1043. 

mere  knowledge  that  he  acted  aa  factor  not  enough,  1043. 

but  where  factor  permitted  to  sell  as  apparent  principal,  real  principal 
is  subject  to  defenses,  1043. 
right  to  follow  and  recover  hia  property,  1044. 


INDEX.  931 

Keforencos  are  to  Sections. 

FACTORS,— Continued. 

factor  holds  as  trustee  of  principal,  1044. 

principal  may  follow  and  recover  goods  or  proceeds  so  long  as  he  can 

trace  them,  1044, 
unless  they  come  into  hands  of  bona  fide  holder,  1044. 
cash  can  not  ordinarily  be  followed,  1044. 
loan  of  by  factor,  when  principal  can  recover,  1044. 
may  sue  for  injuries  to  couversions  of  the  goods.  1045. 

VIII.  Rights  op  Third  Persons  aq  vmsT  Princifai,. 
same  as  in  other  cases  of  agency,  1046. 

undisclosed  principal  liable  when  discovered,  1047. 
not  liable  where  exclusive  credit  given  to  factor,  104S. 

IX.  Rights  of  Third  Persons  against  Factor. 
same  as  in  other  cases  of  a;^ency,  1049. 

when  factor  liable  for  selling  goods  of  a  stranger,  1050. 
how  in  case  of  foreign  factor,  1051. 
who  is  a  foreign  factor,  1051. 

X.  How  Relation  Terminated. 
same  as  in  other  cases  of  agency,  1052. 

factor's  power  coupled  with  an  interest  when,  1053. 
may  renounce  agency,  when,  1052. 

authority  terminated  by  completion  of  undertaking,  1053. 
FACTORS'   ACTS. 

power  of  factor  to  pledge  under,  995. 

in  what  States  exist,  995,  note. 

construction  of  these  acts,  995. 
FALSE  IMPRISONMENT, 

by  agent  when  piincipal  liable  for,  741. 

attorney  at  law  is  liable  for  when,  839. 
FALSE  REPRESENTATIONS, 

by  agent,  when  principal  liable  for,  743. 

what  elements  must  concur,  743. 

remedies  of  the  other  party,  744. 
FELLOW  SERVANTS, 

principal  not  liable  to  one  servant  for  injury  by  fellow-servant,  867. 

who  are  fellow-servants,  668. 

volunteer  assisting  servant  is,  669. 
FIRE, 

factor  not  liable  for  loss  from  accidental,  1018. 
but  may  be  if  he  disobeyed  instructions,  1015. 
FOREIGN  AGENT. 

liability  of,  556. 
FOREIGN  FACTOR, 

liability  of,  1051. 

who  deemed  to  be,  1051. 
FOREIGN  INSURANCE  COMPANY, 

cannot  revoke  statutory  agency  to  receive  service  of  process  without 
appointing  another,  232. 


932  INDEX. 

Beferenoes  are  to  Sections. 

FOREIGN  PRINCIPAL, 

liability  of  agent  who  acts  for,  656. 

who  deemed  to  be,  1051, 
FORGERY, 

when  may  be  ratified,  116. 
"FUTURES," 

contracts  for  purchase  of,  when  void,  8S. 

GAMBLING, 

principal  may  discharge  agent  for,  215. 
GARNISHMENT, 

of  factor  does  not  defeat  his  lien,  1037. 

principal's  title  not  cut  oft  by  proceedings  in,  against  agent,  536,  784-791. 
GIFTS, 

agent  cannot  make,  of  principal's  property,  784-791. 

from  client  to  attorney  closely  scrutinized,  877,  878. 
GENERAL  AGENCY, 

defined,  6. 

how  distinguished  from  special  agency,  6,  275,  883. 

uses  of  these  distinctions,  7,  284, 

difficulty  of  determination,  8. 

how  determined,  9,  285. 

the  true  distinction,  285. 

is  not  an  unlimited  agency,  286. 

general  agent  binds  principal  only  when  acting  within  the  scope  of  hi* 
authority,  287, 
GENERAL  POWERS, 

must  be  limited  by  specific  object,  806. 

must  be  confined  to  principal's  business,  807. 
GENERAL  WORDS, 

limited  by  recitals,  200. 

by  context  and  evident  purpose,  806. 
GEORGIA, 

code  provisions  respecting  agency, 
see  Appendix, 
GRATUITOUS  AGENCY, 

agent  not  liable  for  not  entering  upon,  478. 

but  if  he  undertakes  or  enters  upon  the  performance  he  Is  liable  for 
breach  of  instructions,  478. 

when  gratuitous  agent  liable  for  negligence,  497. 

liable  where  employed  in  a  capacity  requiring  skill,  498. 

such  an  agent  is  bound  to  exercise  the  skill  he  possesses,  499. 
GRATUITOUS  SERVICES, 

no  recovery  of  compensation  for,  600. 

not  good  consideration  for  subsequent  promise  to  pay,  600i 

but  may  be  when  not  intended  to  be  gratuitous,  600. 

HOMESTEAD, 

authority  to  sell  terminated  by  owner's  marriage,  268. 


INDEX.  933 

Beferenoes  are  to  Sections. 

HORSE, 

when  agent  may  warrant,  850. 
HOTEL, 

agent  to  manage,  may  buy  necessary  supplies,  896. 

but  not  bind  for  care  and  safe  keeping  of  horses   and  carriages  for 
guests,  896. 
HUSBAND, 

may  appoint  wife  as  agent,  63.  / 

when  her  agency  implied,  63. 

when  authorized  binds  him  like  other  agents,  63. ' 

may  be  agent  for  his  wife,  63. 

his  authority  must  come  from  her,  63. 

evi  Icnce  of  his  appointment  must  be  very  clear,  63. 
so  of  her  ratification  of  his  acts,  63. 

cannot  establish  his  authority  by  his  own  declarations,  68,  note. 

limits  to  his  authority,  63,  note. 

when  authority  will  be  implied  to  act  for  wife,  86. 

IDIOT, 

can  not  appoint  an  agent,  47. 
ILLEGAL  ACTS, 

cannot  be  delegated,  19. 

what  are,  19-88. 

cannot  be  ratified,  115. 

agent  not  bound  to  perform,  480, 

no  compensation  for  performing,  685. 
ILLEGALITY, 

agent  can  not  set  up,  to  defeat  principal's  claim  against  him,  536. 
"  IMMEDIATELY," 

authority  to  sell  land  immediately  when  may  be  exercised,  319 
IMPLIED  POWERS, 

general  doctrine  of,  380. 
INCHOATE  CORPORATIONS, 

when  corporation  bound  by  acts  of  promoters,  76. 
INCOMPETENCY— IN  GENERAL. 

how  it  may  arise,  46. 

of  what  kind  it  is,  46. 

natural  incompetency,  46. 

legal  incompetency,  46. 

idiots,  lunatics  and  other  persons  of  unsound  mind  cannot  enter  into 
relations  of  agency,  47. 

who  included  within  this  rule,  47. 

innocent  party  dealing  with,  protected  when,  48. 

drunkenness,  when  incapacitates,  49. 

how  when  act  done  during  sober  interval,  49. 

acts  done  while  incompetent  may  be  ratified,  50. 
or  disaflarmed,  50. 

who  may  ratify  or  disaffirm  for,  50. 


934  INDEX. 

Beferences  are  to  Sections. 

INCOMPETENCY— IN  GENERAL,— Conitwttei. 
infants  cannot  appoint  an  agent,  51. 
nor  ratify  an  appointment,  52. 
■what  acts  by  infant's  agent  are  void,  53. 

what  are  valid,  54. 
how  rule  should  be  in  reason,  55. 
married  women  may  act  by  agent — when,  56. 
how  their  capacity  affected  by  modern  statutes,  56. 
how  she  may  appoint  agents,  56. 
any  competent  person  may  be  agent,  57. 

monks,  infants,  married  women,  slaves,  aliens,  etc.,  may  be  agents,  87. 
less  degree  of  competency  required  in  agent  than  in  principal,  53. 
degree  required  depends  on  nature  of  duties,  58. 
what  persons  interested  in  question  of  agent's  competency,  58. 
infants  may  be  agents,  59. 

but  the  relation  not  a  perfect  one,  59. 
slaves  were  competent,  60. 
married  women  may  be  agent  for  third  person,  61. 

or  for  her  husband,  62. 
how  her  competency  affected  by  modern  statutes,  61. 
what  liabilities  agency  imposes  upon  her,  62. 
husband  may  be  agent  for  wife,  63. 

his  power  as  such  must  be  derived  from  her  appointment,  63. 
evidence  of  husband's  agency  should  be  clear,  63. 

so  of  her  ratification  of  his  acts,  63. 
corporations  may  be  principals,  54. 

or  agents,  64. 
partnerships  may  be  principals,  55. 
or  agents,  65. 
INCOMPETENCY  FROM  ADVERSE  INTEREST, 
one  cannot  be  agent  if  duty  and  interest  conflict,  66. 
one  cannot  be  agent  for  both  parties, — when,  67. 

may  be  with  knowledge  and  consent  of  both,  67. 
where  both  knowingly  employ  him,  bound,  67. 
one  cannot  be  party  and  agent  for  opposite  party,  when,  68. 

may  be  with  full  knowledge  and  consent  of  other  party,  68. 
INCOMPETENCY  OF  AGENT. 

when  will  justify  his  discharge,  618. 
INDEMNITY. 

agent  must  be  indemnified  against  consequences  of  lawful  acts,  653. 

where  agent  believes  act  to  be  right  law  implies  promise  to  hold  him 

harmless.  653. 
entitled  to  indemnity  where  by  principal's  order  he  takes  property  of 
a  stranger,  653. 
or  cuts  timber  on  stranger's  land,  653. 
or  sells  stranger's  property,  653. 
or  ejects  passenger  from  train,  653. 
or  makes  contract  which  principal  repudiates,  653. 
or  buys  property  for  principal,  6G3. 


INDEX.  935 

References  are  to  Sections. 

INDEMNITY,— Continued. 

need  not  wait  to  be  sued  by  person  injured,  653. 
may  pay  at  once,  and  recover  of  priDcipal,  653. 
but  can  only  recover  actual  amount  of  injuiy  done,  858, 
immaterial  whether  sued  with  principal,  or  alone,  653. 
no  Indemnity  where  agent  knows  act  to  be  unlawful,  6o4. 
not  even  express  bond  is  good,  654. 
but  this  rule  does  not  apply  to  act  done  in  good  faith  with  honest 

motives,  654. 
indemnity  for  past  act  is  good,  654. 
factor's  duty  to  furnish  to  purchaser  before  recovery  of  price,  1039. 
attorney  entitled  to,  840. 
auctioneer  entitled  to,  917. 
broker  entitled  to,  977. 
factor  entitled  to,  1031. 
INDEPENDENT  CONTRACTOR, 

when  principal  liable  for  negligence  of,  747. 
INFANT— AS  PRINCIPAL, 
can  not  appoint  agent,  51. 
reasons  for  this  rule,  51. 
cannot  ratify  his  appointment  of  an  agent,  53. 
In  what  cases  infant's  appointment  of  agent  is  void,  58. 
his  power  of  attorney  to  sell  his  lands,  void,  53. 
to  confess  judgment  against  him,  void,  53. 
to  represent  him  in  court,  void,  53. 
to  buy  real  estate,  void,  53. 
modern  dissent  from  general  rule,  54. 
may  appoint  attorney  to  do  act  for  his  advantage,  54. 
how  the  rule  should  be  in  reason,  55. 
INFANT— AS  AGENT, 

above  seven  years,  may  be  agent,  59. 
his  agency  not  a  perfect  one,  59. 
INSANE  PERSONS, 

when  can  act  by  agents,  47. 

how  when  opposite  party  ignorant  of  insanity,  48. 
may  act  during  sane  interval,  48. 
ratification  or  disafflrraance  of  appointment,  50. 
INSANITY, 

of  principal,  revokes  agency,  253,  254. 
how  when  other  party  ignorant,  255. 
not  when  coupled  with  an  interest,  256. 
what  evidence  of,  sufficient,  257. 
effect  on  agent's  right  to  compensation,  637. 
of  agent,  terminates  agency,  258,  259. 
how  when  insanity  unknown,  261. 
insanity  of  one  of  two  or  more  agents,  261. 
effect  on  agent's  right  to  compensation,  630. 


936  INDEX. 

Beferenoes  are  to  Sections. 

INSOLVENCY, 

of  principal,  terminates  agency,  when,  263. 
must  be  followed  by  assignment,  264. 
does  not  terminate  when  coupled  with  an  interest,  366. 
third  persona  dealiag  in  ignorance  of,  protected,  266. 
does  not  defeat  agent's  right  to  compensation,  628. , 
of  business  agent,  dissolves  authority,  267. 

except  so  far  as  personal  trust  is  concerned,  267. 
of  agent  may  be  considered  in  determining  whether  credit  was  given  to 
agent  or  principal,  558. 
INSTRUCTIONS, 

the  province  of,  in  limiting  authority,  279,  284. 

secret  cannot  aflEect  apparent  powers,  279,  282. 
agent  must  obey,  478. 

liable  for  losses  occasioned  by  his  disobedience,  474,  476. 

when  liable  in  trover.  476. 

agent's  intent  immaterial,  when,  477. 

how  when  agency  gratuitous,  478. 

agent  not  bound  to  perform  illegal  or  immoral  act,  480. 

departure  from  instructions  may  be  justified  by  sudden  emergency, 

481. 
but  departure  must  not  be  greater  than  emergency  demands,  482. 
where  authority  has  been  substantially  pursued  agent  not  liable  for  im- 
material departure,  483. 
where  instructions  are  ambiguous,  construction  adopted  in  good  faith, 

sufficient,  484. 
how  affected  by  custom,  485,  486. 
no  presumption  of  disobedience,  487. 
INSURANCE, 

when  agent  should  effect,  474,  510. 

agent  must  exercise  reasonable  care  and  prudence  in  effecting,  610. 
must  insure  in  solvent  companies,  510. 
and  secure  proper  policies,  510. 
and  cover  the  proper  risks,  510. 
and  insure  in  proper  amounts.  510. 
agent  must  give  notice  of  his  inability  to  insure,  510. 
amount  of,  how  determined,  510. 
factor  should  insure,  when,  1011. 
INSURANCE  AGENT, 

how  distinguished  from  insurance  broker,  981. 
may  waive  forfeitures,  931. 

or  performance  of  conditions,  931. 
or  prepayment  of  premium,  931. 
notice  to  him  binds  company,  931. 
may  consent  to  prior  or  subsequent  insurance,  931. 
facts  correctly  stated  to  him  sufficient  though  he  mis-states  to  com- 
pany, 931. 
cannot  be  made  agent  of  insured  merely  by  stipulation  in  policy,  931. 


INDEX.  937 

Beferenoes  are  to  Sections. 

INSURANCE  BROKER, 

defined,  931. 

how  differs  from  iasiirance  agent,  931. 

is  usually  a  special  agent,  981. 

binds  principal  only  wilhln  scope  of  authority,  981. 

has  no  authority  to  surrender  or  substitute  policies,  931. 

subsequent  notice  to  him  does  not  bind  principal,  931. 

bound  to  reasonable  care  and  diligence,  931. 

may  sue  upon  the  policy,  when,  931. 

lien  of,  980. 
INTEREST, 

when  agent  chargeable  with,  533. 

when  attorney  chargeable  with,  833. 
JOINT  AGENTS, 

when  may  be  appointed,  76. 

when  agency  is  private,  all  must  join  in  execution,  77. 

public  trust  or  agency  may  be  executed  by  majority,  78. 

but  all  must  be  present  or  have  opportunity  to  be  present,  78. 
no  unfair  means  or  practice  must  be  resorted  to,  78. 

when  death  of  one  terminates  agency,  251. 

when  insanity  of  one  terminates  agency,  261. 

authority  of,  not  necessarily  revoked  by  subsequent  authorization  of  one 
of  them,  219. 
JOINT  PRINCIPALS, 

when  power  of  appointing  agents  is  joint,  69. 

when  joint  in  partnership  cases,  70. 

how  in  cases  of  joint  tenants  and  tenants  in  common,  71. 

how  in  cases  of  associations,  clubs  and  committees,  72. 

how  in  case  of  inchoate  corporations,  75. 

when  severance  of  interest  dissolves  agency,  222. 

death  of  one  dissolves  agency,  247. 

one  of  two  or  more  can  not  sue  purchaser  where  factor  has  taken  note 
for  entire  price  payable  to  himself,  1042. 

nor  can  one  sue  for  his  proportion  of  entire  price,  though  no  note  was 
taken,  1042. 
JOINT-TENANTS, 

appointment  of  agents  by,  71. 

when  one  may  appoint  for  all,  71. 

severance  of  interest  revokes  agency,  233. 

death  of  one  dissolves  agency,  247. 
JOURNEYS, 

attorney  no  Implied  power  to  go  on  at  client's  expense,  818. 
JUDGE, 

See  Judicial  Ofpicerb. 
JUDGE  OF  PROBATE, 

cannot  purchase  at  his  own  sale,  463. 
JUDGMENT, 

against  agent  not  binding  on  principal  if  not  a  party,  799. 


938  INDEX. 

References  are  to  Sections. 

JUDGMENT,— Continued. 

when  judgment  against  principal  for  agent's  wrong,  conclusive  in  action 
by  principal  as^ainst  agent  for  indemnity,  507. 
JUDICIAL  OFFICERS, 

not  liable  to  individuals  for  act  within  his  jurisdiction,  580l 
their  liability  is  not  affected  by  motives  alleged,  581. 
this  immunity  extends  to  judicial  officers  of  all  grades,  583. 
but  jurisdiction  is  essential  to  this  immunity,  583. 
what  jurisdiction  means,  583. 

jurisdiction  of  the  person,  583. 
jurisdiction  of  the  subject-matter,  583. 
act  must  have  been  confined  within  his  jurisdiction,  584. 
when  jurisdiction  will  be  presumed^  585. 

distinction  between  courts  of  general  and  those  of  limited  jurisdic- 
tion, 585. 
limitations  upon  these  rules,  586. 
not  liable  when  jurisdiction  is  assumed  through  mistake,  587. 
what  duties  are  judicial,  588. 

KNOWLEDGE, 

See  Notice. 
LAND,  AUTHORITY  TO  SELL, 
what  authority  is  sufficient,  318. 
when  it  may  be  exercised,  319. 
what  execution  is  justified  by,  320. 
implies  right  to  convey,  when,  321. 

and  to  insert  usual  covenants  of  warranty,  333. 
but  not  to  mortgage  land,  323. 
implies  authority  to  receive  payment,  when,  324. 
implies  no  authority  to  give  credit,  325. 
does  not  authorize  exchange  or  gift,  326. 
nor  waste,  or  sale  of  timber,  327. 
nor  changing  boundaries  of  land,  328. 
nor  a  partition  of  land,  329. 
nor  dedication  to  public  use,  330. 
nor  conveyance  in  payment  of  agent's  debts,  331. 
does  not  authorize  rescission  of  contract,  332. 
implies  no  authority  to  discharge  mortgages,  333. 
nor  to  reinvest  proceeds,  334. 
LANDLORD, 

cannot  oust  tenant  on  unauthorized  notice  to  quit  given  by  an  agent,  179. 
LAWYER, 

See  Attoknbys  at  Law. 

LEASE, 

agent  employed  to  obtain  for  principal  can  not  obtain  for  himself,  458. 

agent  employed  to  grant  a  lease,  can  not  lease  to  himself,  461. 
LEGISLATIVE  OFFICERS, 

exempt  from  action  by  private  individuals,  589. 


INDEX.  939 

Beferences  are  to  Seotions. 

LEGISLATIVE  OFFICERS,— Continued. 

exemption  extends  to  lesser  grades,  as   supervisor,  city  councils,  com- 
missioners, etc.,  589. 
LEGISLATION, 

contracts  for  services  in  securing  or  defeating,  void,  23,  23. 
LETTER, 

authority  may  be  conferred  by,  318. 
information  as  to  agent's  act,  communicated  by,  163. 
revocation  by,  of  agent's  autliority,  takes  effect  when  it  reaches  him,  3S6. 
LEX  LOCI, 

authority  of  agent  to  be  construed  in  light  of,  305. 
LIABILITIES, 

of  various  parties  to  the  relation. 

See  Duties  ako  LiABiLiTisa. 
LIEN, 

defined,  673. 

general  and  particular,  673. 
foundation  of  the  right,  674. 
nature  of  the  lien,  675. 

is  right  of  retainer  merely,  675. 
cannot  be  assigned  or  attached,  675. 
is  purely  personal  to  lien  holder,  675. 
cannot  be  set  up  by  stranger,  675. 
possession  is  requisite  to,  676. 

mere  workman  or  servant  not  entitled  to  lien.  678. 
possession  must  have  been  continuous,  678. 
possession  must  have  been  lawfully  acquired,  677. 
possession  must  have  been  continuous,  678. 
voluntary  relinquishment  defeats  lien,  678. 
possession  lost  by  fraud  or  misrepresentation  does  not,  678. 
no  change  of  possession  for  temporary  purpose,  678. 
possession  must  have  been  acquired  in  course  of  employment,  679. 
no  lien  if  contrary  to  intention  of  parties,  680. 
taking  security  waives  lien,  680. 
or  taking  note  in  payment,  680. 

or  agreement  to  deliver  property  before  time  for  payment,  680. 
or  special  contract  as  to  payment,  680. 
agreement  for  fixed  price  no  waiver,  680. 
may  be  waived  by  inconsistent  conduct,  681. 
by  general  refusal  to  deliver  property,  681. 
or  claim  on  other  grounds  than  lien,  681. 
claim  of  lien  no  waiver  of  personal  remedies,  683. 
may  resort  to  principal  as  well  as  to  lien,  682. 
hold  lien  enforced,  683. 

no  right  of  sale  in  general,  683. 

unless  transaction  amounts  to  pledge  or  bailment,  683. 
agent  has  particular  lien  for  reimbursement,  684. 

so  where  he  accepts  drafts  on  consignments,  684. 


940  INDEX. 

References  are  to  Sections. 

LIEN, — Ooniinued. 

or  obtains  loan  on  commission,  684. 
has  no  general  lien  except  in  special  cases,  685. 
lien  attaches  only  foi  lawful  charges,  686. 
not  for  unliquidated  damages,  686. 
only  for  debts  arising  in  course  of  employment,  686. 
subagent  is  entitled  to  a  lien,  when,  693. 
LIMITATIONS, 

See  Statute  of  Limitatioks. 
LIQUORS, 

agent  to  sell  may  warrant  quality,  but  not  that  they  will  not  be  seized  for 
violation  of  revenue  laws,  350. 
LOAN, 

negligence  of  agent  in  making,  liability  for,  509. 
of  principal's  money  by  agent,  when  principal  may  recover,  586,  1044. 
LOAN  BROKER, 

entitled  to  commissions,  when,  970. 
has  a  lien  upon  loan  for  commissions,  684 
LOTTERY, 

employment  to  sell  tickets  in  forbidden,  void,  88. 
contracts  to  men,  void,  38. 
LOUISIANA, 

code  of  as  to  agency. 

See  Appendix. 
LOYALTY  TO  TRUST, 

loyalty  to  his  trust  the  first  duty  of  the  agent,  454, 
must  not  put  himself  in  relations  antagonistic  to  principal,  455. 
makes  no  difference  that  principal  not  injured,  455. 
law  has  regard  to  tendency  of  such  transactions,  455. 
may  not  deal  in  business  of  agency  for  his  own  benefit,  458. 
&gent  authorized  to  purchase  for  principal  may  not  buy  for  himself  with- 
out principal's  consent.  457. 
cannot  do  indirectly  what  he  cannot  do  directly,  457. 
same  principle  applies  to  leases,  458. 
what  evidence  of  the  trust  is  sufficient,  459. 
when  rule  does  not  apply,  460. 
agent  authorized  to  sell  or  lease  cannot  become  purchaser  or  lessee,  with- 
out principal's  consent,  461. 
If  he  does  so  the  principal  may  repudiate  it  and  recover  back  his 

property,  461. 
makes  no  difference  that  principal  was  not  injured,  461. 
■  agent  authorized  to  purchase  may  not  purchase  of  himself  without  prin 
cipal's  consent,  463. 
if  he  does,  principal  may  repudiate,  463. 
no  difference  that  he  intended  to  benefit  principal,  463. 
to  what  agents  this  rule  applies,  463. 
disabilities  apply  to  clerks,  subageats  and  partners,  463. 
can  not  do  indirectly  what  he  can  not  do  directly,  464. 


INDEX.  941 

References  are  to  Sections. 

LOYALTY  TO  TBJJST,— Continued. 
principal  may  ratify  act,  464. 
usage  cannot  defeat.  465. 

agent  may  sell  to  or  purchase  from  principal  with  the  latter's  knowledge 
and  consent,  466. 
but  the  transaction  will  be  very  closely  scrutinized,  466. 
agent  employed  to  settle  claim  may  not  buy  and  enforce  it  against  his 

principal,  467. 
agent  may  not  acquire  rights  against  his  principal  based  upon  his  own 
neglect  or  default,  468. 
can  not  take  advantage  of  defects  in  principal's  title,  468. 
must  first  unequivocally  relinquish  agency,  468. 
doubts  resolved  against  agent,  468. 
LUNATICS, 

can  not  in  general  act  by  agent,  47. 

how  when  opposite  party  ignorant,  48. 

may  act  during  sane  interval,  48. 

ratification  or  disaffirmance  of  appointment,  60. 

MACHINERY, 

principal's  duty  to  furnish  that  which  is  safe,  659. 
principal  liable  for  negligence  in  this  regard,  659. 
MACHINES, 

agent  to  sell  may  warrant  quality,  349. 

may  sell  with  privilege  of  return  if  not  satisfactory,  349. 
may  sell  on  condition  that  it  does  good  work,  349. 
may  waive  return  of  machine,  349. 

custom  or  instructions  not  to  warrant  immaterial,  if  purchaser  igno- 
rant of  them,  349. 
fact  that  principal  gave  agent  printed  warranty  does  not  preclude  oral 
one,  unless  purchaser  knew  of  it,  349. 
MAIL, 

when  agent  may  remit  by,  612. 
MAJORITY, 

may  execute  public  trust  or  agency,  78. 
MALICE, 

of  agent,  when  imputable  to  principal,  740. 

principal  liable  for  agent's  malicious  act  within  scope  of  his  employment, 
740. 
MALICIOUS  PROSECUTION, 

when  attorney  liable  for,  by  client,  839. 
by  agent,  when  principal  liable  for,  741. 
MANAGER, 

extent  of  his  authority  depends  on  nature  of  business,  395. 
authority  as,  implies  power  to  pledge  principal's  credit,  when,  398. 
when  authorizes  sale  of  product  of  business,  397. 

no  implied  power  to  exchange  product  for  others,  397. 
when  authorizes  hiring  of  workmen,  397. 


942  INDEX. 

References  are  to  Sections. 

M.ANJlQ'EIR,— Continued. 

does  not  authorize  the  making  of  negotiable  paper,  898. 
such  power  must  be  expressly  conferred,  898. 

does  not  authorize  borrowing  of  money,  399. 

does  not  authorize  making  of  accommodation  paper,  400. 

may  not  pledge  or  mortgage  the  business,  401. 

may  not  sell  principal's  land,  403. 

may  not  embark  in  new  or  different  business,  403. 

may  not  sell  the  business,  404. 

negligence  of,  principal  liable  for,  when,  665. 
"MARGINS," 

contracts  for  purchase  of,  when  void,  85. 
MARRIAGE, 

of  principal  revokes  authority  to  do  act  which  would  defeat  marital 
rights,  268. 
as  to  sell  the  homestead,  268. 
marriage  of  fetne  sole  revokes  general  authority  to  contract,  268. 

contracts  to  procure,  void,  36. 
MARRIAGE  BROKERAGE, 

contracts  to  procure  marriage,  void,  38. 
MARRIED  WOMAN, 

could  not  appoint  agent  at  common  law,  56. 

may  act  by  agent  under  modern  statutes  in  reference  to  her  sole  pr(^ 
erty,  56. 

to  this  extent  is  competent  as  though  unmarried,  56. 

her  agent  can  bind  her  only  where  she  could  bind  herself,  66. 

appoints  agent  in  same  manner  as  other  persons,  56. 

bound  by  her  agent's  acts,  like  other  principals,  56. 

may  be  agent  for  third  persons,  61. 
but  relation  not  a  perfect  one,  61. 

effect  of  modern  statutes  on  her  capacity,  61. 

may  be  agent  for  ber  husband,  62. 

this  agency  of  two  kinds,  62. 

no  authority  merely  as  wife  to  contract  generally,  63. 

may  bind  her  husband  like  other  agents,  62. 

how  if  duties  to  husband  and  stranger  conflict,  61. 

may  appoint  her  husband  her  agent,  63. 

husband  has  no  general  powers  merely  as  husband,  63. 

when  duly  authorized  he  binds  her  like  other  agents,  68. 

evidence  of  wife's  appointment  must  be  clear,  63. 

husband's  agency  cannot  be  established  by  his  declarations,  63,  note. 

may  not  bind  her  by  negotiable  paper,  when,  63,  note. 
MASTER, 

how  compares  with  principal,  3. 
1.  LiABrLiTT  TO  Servant. 

not  liable  to  servant  for  risks  incident  to  business,  6SS. 

is  responsible  for  his  own  negligence,  657. 
for  dangerous  premises,  658. 


INDEX.  &43 

Beferences  are  to  Sections. 

MASTER, — Goniinued. 

for  dangerous  tools  and  machinery,  659. 

for  failure  to  repair  as  agreed,  660,  661. 

for  employment  of  incompetent  servants.  663. 

for  employing  servant  outside  of  bis  employment,  663. 
is  responsible  for  negligence  of  bis  general  superintendent,  665. 
when  liable  to  servants  of  contractor,  66G. 
not  liable  for  negligence  of  a  fellow-servant,  687. 

who  is  a  fellow-servant,  668. 

volunteer  assisting  servant,  is,  669. 
contributory  negligence  of  servant  defeats  recovery,  670. 

what  constitute,  670. 
waiver  of  master's  liability,  invalid,  671. 

3.   LlABFLITY  TO   TEttRD    PERSONS. 

liable  for  servant's  contracts,  when,  695-713. 

for  servant's  statements  and  representations,  when,  714-717. 
notice  to  servant  is  notice  to  master,  when,  718-731. 

for  servant's  negligence,  when,  733-738.  , 

for  servant's  fraud,  when,  739. 

for  servant's  malicious  act,  when,  740,  741. 

for  servant's  use  of  excessive  force,  when,  742. 

for  servant's  false  or  fraudulent  representation,  when,  748. 

for  servant's  criminal  or  penal  act,  when,  745,  746. 

for  acts  of  independent  contractor,  when,  747,  748. 

for  acts  of  a  subagent,  when,  749. 
8.  Rights  against  Third  Persons. 
may  sue  on  contracts  made  by  servant,  when,  768-777. 
may  recover  money  paid  or  used  by  servant,  when,  778-788. 
may  recover  property  disposed  of  by  servant,  when,  784-791. 
may  recover  for  injuries  to  his  property,  792. 

for  enticing  servant  away,  793. 

for  preventing  servant  from  performing,  794. 

for  personal  injury  to  servant  causing  loss  of  service,  795. 

for  conspiring  with  servant  to  defraud  him,  797. 
4.  Rights  against  Servant. 
servant  must  be  loyal  to  his  master's  interests,  454  et  acq. 

must  not  deal  with  business  for  his  own  benefit,  456. 

earnings  of  servant  belong  to  master,  471. 
servant  must  obey  instructions,  473. 

is  liable  for  losses  occasioned  by  his  disobedience,  474  et  seq. 
servant  must  use  reasonable  care  and  diligence,  490  et  seq. 

is  liable  for  injuries  from  his  negligence,  490  et  seq. 
for  detailed  rights  and  obligations  of  master. 
See  Principal. 
MEASURE  OP  DAMAGES, 

See  Damages. 
for  agent's  negligence,  506. 

agent's  negligence  in  making  loans,  609. 


944  INDEX. 

References  are  to  Sections, 

MEASURE  OF  DA^AQ^S,— Continued. 

agent's  negligence  in  effecting  insurance,  510. 
agent's  negligence  in  making  collections,  518. 
for  wrongful  discharge  of  agent,  622. 
what  damages  may  be  recouped  against  agent,  648. 
in  action  by  third  persons  against  principal,  751. 
in  action  by  agent  against  third  persons,  763-765, 
in  action  by  principal  against  factor,  1009. 
MECHANICAL  POWERS  AND  DUTIES, 

may  be  delegated,  193, 
MERCANTILE  AGENCY, 

liable  for  default  or  neglect  of  its  subagents,  516. 
unless  limited  by  express  stipulartion,  516. 
such  limitations  not  opposed  to  public  policy,  516. 
liable  where  it  reserves  control  of  methods  to  be  pursued,  516. 
MERCHANDISE  BROKERS, 
defined,  932. 

are  governed  by  ordinary  rules  of  agency,  933. 
mode  of  dealings  by,  932. 
bought  and  sold  notes  by,  932. 
MIDDLEMAN, 

when  broker  stands  in  attitude  of,  943,  973. 
when  entitled  to  commissions  from  both  parties,  973. 
MINING  SUPERINTENDENT, 

may  buy  and  sell  property  for  use  about  the  mine,  396. 
may  not  bind  his  principal  for  debts  of  third  person,  396. 
MINISTERIAL  OFFICERS, 

liable  for  neglect  or  default  to  party  specially  injured,  500. 
no  defense  that  officer  mistook  his  duty,  590. 
or  acted  in  good  faith,  590. 
or  that  penalty  is  also  imposed  by  law,  590. 
nature  of  duty  governs  liability,  591. 
what  duties  are  ministerial,  592. 

those  which  are  required  by  law  and  which  are  not  dependent  on  of- 
ficer's judgment  or  discretion,  592. 
MINISTERIAL  POWERS  AND  DUTIES, 

may  be  delegated,  193. 
MISCONDUCT  OF  AGENT, 

agency  may  be  terminated,  because  of,  214. 
for  disobedience  of  instructions,  214. 
for  dishonesty,  215. 

for  embezzlement  of  principal's  funds,  215. 
for  engaging  in  trade  in  opposition  to  principal,  215. 
for  being  in  secret  employment  of  others,  215,  note, 
for  assaulting  principal's  servant,  215. 
for  seducing  principal's  daughter,  215. 
for  becoming  or  being  a  drunkard,  215. 
for  gambling  on  stock  exchange,  215. 


INDEX.  945 

Befarences  are  to  Sections. 


MISCONDUCT  OF  AGENT —Continued. 
what  must  be  nature  of  offense,  215. 
of  attorneys. 


of  auctioneers, 
of  brokers, 
of  factors. 


See  Attohnets  at  Law. 

See  Auctioneers. 

See  Brokers. 


See  Factors. 
AI18FEASANCE  OP  AGENT, 

distinction  between,  and  non-feasance,  572. 
agency  no  excuse  for,  571. 

principal's  knowledge  or  directions  no  defease,  573,  574. 
MISREPRESENTATIONS, 

by  agent,  when  principal  liable  for,  743. 
principal's  right  of  action  affected  by,  775. 
MISTAKE, 

money  paid  to  agent  under,  may  be  recovered,  when,  561,  563. 
agent  may  recover  money  by  him  under,  when,  761. 
MONEY, 

agent  not  liable  for  money  paid  over  to  principal,  when,  ."iSl,  562. 
liable  if  agency  was  not  known,  56:i. 
liable  for  money  illegally  obtained,  564. 
but  not  for  that  voluntarily  paid,  "iGo. 
agent  when  liable  for  money  paid  to  him  for  third  persons,  .>87,  568. 
principal  may  recover  that  wrongfully  paid  out  by  agent,  783. 
or  that  illegally  exacted  from  agent,  780,  791. 
may  recover  money  loaned  by  his  agent,  when,  5l>6,  1044. 
MONTHLY  HIRING, 

not  implied  from  monthly  salary,  merely,  212. 
but  may  be  implied  from  other  circumstances,  213. 

instances  of  this  rule,  212. 
continuance  for  second  month  implies,  on  same  terms,  213. 
MORTGAGE. 

power  to  sell  conveys  no  power  to,  323. 
discharge,  agent  to  sell  land  has  no  power  to,  333. 
assumption  of  by  agent,  333. 
MORTGAGEE, 

death  of,  does  not  defeat  power  of  sale,  250. 
nor  does  his  insanity,  256. 
MORTGAGOR, 

death  of  does  not  terminate  power  of  sale,  243. 
nor  his  insanity,  250. 
nor  his  bankruptcy,  365. 
MUTUALITY, 

in  contracts  of  employment,  necessary  for,  211. 
how  under  statute  of  frauds,  311. 

60 


946  INDEX. 

Beferenoes  axe  to  Sections. 

NECE88ART  POWERS, 

when  implied,  283,  311, 

limitations  upon,  274. 
NECESSITY, 

authority  by,  83. 

will  justify  appointment  of  subagents,  when,  194. 

will  excuse  departure  from  instructions,  when,  481. 
NEGLIGENCE, 
1.  Of  Agents. 

difficulty  in  defining,  489. 

a.  liability  of  agent  to  principal  for. 

the  true  rule  as  to,  490. 

agent  bound  to  exercise  reasonable  precautions,  493. 

not  bound  to  exercise  highest  care,  494. 

bound  for  good  faith  and  reasonable  diligence,  496. 

warranty  of  skill,  when  implied,  496. 

how  when  agency  gratuitous,  497. 

how  when  agent  employed  in  capacity  which  implies  skill,  498 

agent  bound  to  exercise  skill  he  possesses,  499. 
how  degree  of  skill  required  to  be  determined,  500. 
contributory  negligence  of  principal  excuses,  503. 
agent  not  liable  for  unforeseen  dangers,  501. 
no  presumption  of  negligence,  502. 
when  agent  liable  for  neglect  of  subagent,  504. 
ratification  by  principal  relieves  agent,  505. 
measure  of  damages,  principal  entitled  to,  506-508. 
neglect  in  making  loans,  509. 
negligence  in  effecting  insurance,  510. 
negligence  in  making  collections,  511. 
negligence  in  making  remittances,  512. 
liability  for  neglect  for  negligence  of  subagents,  618. 

liability  of  banks,  514. 

liability  of  attorneys,  515. 

liability  of  mercantile  agencies,  510. 

liability  of  express  companies,  517. 
the  measure  of  damages,  518. 

when  principal  may  proceed  against  subagents,  519. 
negligence  in  selling  to  irresponsible  parties,  521. 

b.  liability  of  agent  to  third  person. 

not  liable  for  neglect  of  duty  owing  solely  to  principal,  569,  570. 
but  is  liable  for  misfeasance,  571. 
distinction  between  non-feasance  and  misfeasance,  572. 
principal's  knowledge  or  direction,  no  defense,  573,  574. 
when  liable  for  negligence  of  subagents,  575. 
3.  Of  Principal. 
principal  is  responsible  to  agent  for  his  own  negligence,  657. 
liable  for  injury  from  dangerous  premises,  658. 
agent  must  be  given  warning  of  dangers,  658. 


INDEX.  947 

Befereuces  are  to  Seotions. 

■NEGLIGENCE.— Cora^mtfed. 

but  has  no  remedy  for  injury  happening  in  place  where  he  had 
no  right  to  be,  658. 
liable  for  injury  from  dangerous  tools  and  machinery,  659. 
but  only  where  principal  is  to  furnish  them,  659. 
principal  not  obliged  to  furnish  newest  and  best  tools,  859. 
duty  performed  if  he  furnishes  reasonably  safe  and  proper  ones, 

659. 
must  give  agent  warning  of  hidden  or  unusual  dangers,  659. 
that  agent  was  young  or  inexperienced  must   be  considered, 

659. 
principal's  knowledge  of  dangers  must  be  shown,  659. 
liable  for  not  repairing  as  agreed,  660. 

agent  must  give  principal  notice  of  defects.  660,  661. 

may  give  principal  reasonable  opportunity  to  repair,  660. 

if  he  remains  after  promise  is  broken,  he  assumes  the  risk  660 

661. 
whether  he  was  negligent  in  remaining  is  question  for  jury,  661. 
liable  for  employing  incompetent  servants,  662. 

or  for  retaining  them  with  knowledge  of  incompetence,  662. 
duty  is  measured  by  reasonable  care  and  prudence,  662. 
liable  for  injuries  happening  while  he  is  employing  agent  outside  the 
scope  of  his  undertaking,  663. 

agent  must  not  go  into  palpable  danger,  663. 
but  fact  of  principal's  order  must  be  considered,  663. 
liable  for  negligence  of  general  superintendent,  664. 

principal  can  not  relieve  himself  from  liability  by  delegating  his 

duties  to  general  agent  or  manager,  664. 
negligence  of  such  general  agent  is  negligence  of  principal,  665. 
such  general  agent  is  not  a  fellow-servant,  665. 
principal  not  liable  to  agents  of  contractor,  666. 
unless  he  has  agreed  to  furnish  part  of  the  labor  or  machinery, 
666. 
not  liable  for  negligence  of  fellow-aervants,  667. 
who  are  fellow-servants,  668. 
volunteer  assisting  servant  is,  669. 
contributory  negligence  of  servant  defeats  his  recovery,  670. 

when  excused  by  master's  orders,  670. 
agreements  to  waive  liability  invalid,  671. 
for  negligence  of  attorney. 

See  Attorneys  at  Law. 
for  negligence  of  auctioneer. 

See  Auctioneers. 
for  negligence  of  brokers. 

See  Brokers. 
for  negligence  of  factor. 

See  Factors. 


948  iNPEX. 

References  are  to  Sections. 

NEGOTIABLE  INSTRUMENTS, 
execution  of,  432-444. 

the  proper  manner,  432,  433. 
not  necessary  that  agent's  name  appear,  434. 
not  enough  that  principal  be  named  in  body  of  note  only,  435. 
principal  bound  when  that  intent  is  manifest  436,  437. 
•where  no  principal  disclosed,  agent  liable,  438. 
how  when  payable  to  agent's  order  and  indorsed  by  him,  439. 
how  when  made  by  public  agents,  440. 
admissibility  of  parol  evidence  to  show  intent,  441-444. 
■what  rules  applied,  442. 
the  true  rule,  443,  444. 
authority  to  execute,  389-394. 

what  constitutes  such  authority,  389. 
must  be  expressly  conferred,  389. 
authority  is  strictly  construed,  390. 
implied  only  when  necessary,  391. 
cannot  be  delegated  to  subagent,  186. 
terminates  with  principal's  death.  246. 
agent  to  manage  grocery  store  has  not,  391. 

nor  agent  employed  to  manufacture  carriages,  391. 
nor  agent  authorized  to  manage  farm,  391. 
nor  agent  authorized  to  manage  principal's  business,  391. 
nor  agent  authorized  to  buy  goods  and  pay  for  them,  391. 
authority  to  discount  bills  implies  authority  to  indorse  them,  391. 
authority  must  be  confined  to  principal's  business,  893. 
agent  authorized  to  make  or  indorse  can  not  make  or  indorse  for  his 

own  benefit  or  that  of  a  third  person,  392. 
execution  must  be  confined  to  limits  specified,  393. 

authority  to  make  for  one  purpose  does  not  justify  making  for 

another,  393. 
authority  to  make  for  one  sum,  will  not  authorize  making  for  a 

different  sum,  398. 
authority  to  make  for  a  given  time,  will  not  authorize  making 

for  a  different  time,  393. 
authority  to  sign  as  surety  does  not  justify  signing  as  principal 

393. 
authority  to  make  note  does  not  imply  authority  to  pay  ii.  393. 
authority  to  draw  bills  on  time  does  not  authorize  po^t-dated 

bills,  393. 
authority  to  draw  does  not  authorize  indorsing  or  uctxpiing  bills, 

393. 
authority  does  not  justify  unusual  paper,  393. 
authority  to  fill  paper  delivered  in  blank,  894. 
agent  to  sell  negotiable  instruments,  liability  of,  929. 
NEGOTIABLE  PAPER, 

See  Negotiable  Instruments. 
factor  may  take,  990. 


INDEX.  949 

References  are  to  Seotiono. 

NEGOTIABLE  PAVEB.,— Continued. 

may  collect  or  discount  it  for  principal,  990. 
but  if  he  discounts  for  himself,  liable,  990. 
NON-FEASANCE  OF  AGENT, 

agent  not  liable  to  third  person  for,  639,  569. 
illustrations  of  this  rule,  570. 
NOTARY  PUBLIC, 

when  bank  liable  for  negligence  of,  employed  by  it,  514. 
NOTE, 

See  Negotiable  Instruments. 
factor  should  not  take  one  for  several  debts,  1021. 
agent  for  collection  cannot  receive  in  payment.  375. 
NOTE  BROKERS, 
definition  of,  939. 

liable  as  seller  where  principal  is  concealed,  929. 
warrants  his  authority  to  sell,  929. 
and  genuineness  of  signatures,  929. 
but  not  solvency,  unless  he  indorses,  929. 
NOTICE, 

notice  to  the  agent  is  notice  to  the  principal — when,  718. 
reasons  for  the  rule,  719. 

notice  acquired  during  agency  binds  principal,  720. 
how  if  notice  acquired  prior  to  agency,  721. 
does  not  bind  where  agent  forbidden  to  communicate,  729, 
does  not  bind  when  agent  is  acting  adversely,  723, 
what  notice  includes,  724. 
actual  notice,  724. 
constructive  notice,  724. 
notice  binds  only  when  in  reference  to  matter  within  agent's  author- 
ity, 725. 
notice  after  authority  terminated  does  not  bind,  726. 
must  be  of  a  material  matter,  727. 
when  notice  to  subagent  binds  principal,  728. 
these  rules  apply  to  corporations,  729. 
when  notice  to  director  binds,  730. 
when  notice  to  stockholder  binds,  731. 
NOTICE  OF  REVOCATION, 
must  be  given,  223. 

to  third  persons  where  authority  was  general,  224. 

but  not  where  authority  was  special,  235, 
to  agent,  notice  must  be  given,  226, 
when  takes  effect,  226. 
how  when  given  by  letter,  226. 
to  subagent,  notice  must  be  given  when  he  derives  his  authority  from 
the  principal,  227. 
but  not  when  he  is  merely  agent's  agent,  227. 
how  notice  shall  be  given,  228. 

rule  similar  to  that  applicable  in  partnership  cases,  228. 


950  INDEX. 

References  are  to  Sections. 

NOTICE  OF  REVOCATION,— CoTKmwed. 

actual  notice  to  those  who  have  had  notice  of  agency,  328w 
constructive  notice  may  be  given  to  others,  228. 
when  notice  by  publication  is  sufficient,  238. 
how  when  evidence  of  authority  was  recorded,  229. 
notice  should  be  unequivocal,  230. 

any  ambiguity  construed  against  principal,  230. 
how  sufficiency  of  the  notice  is  to  be  determined,  281. 
undisputed  facts  are  for  the  court,  231. 
disputed  facts  are  for  the  jury,  231. 
NOTICE  NOT  TO  PAY  TO  AGENT, 

effect  of,  when  printed  on  bills  of  goods  sold  by  him,  343. 
what  is  sufficient  notice,  342. 
NOTICE  OF  INTENTION  TO  TERMINATE  AGENCY, 
agent  may,  by  contract,  be  required  to  give,  641. 

contract  may  provide  for  forfeiture  of  wages  if  notice  is  not  given, 

642. 
such  contracts  must  be  reasonable  and  fair,  642. 
what  will  work  a  forfeiture,  643. 
NOTICE  TO  QUIT, 

ratification  of  unauthorized,  not  effective  in  behalf  of  principal,  179. 
NUISANCE. 

principal  liable  for  creation  of,  by  independent  contractor,  747 

OFFICE— APPOINTMENT  TO, 

■er vices  to  secure,  when  lawful,  28. 

only  when  they  contemplate  open  and  fair  means,  28,  29. 
contracts  to  procure  are  void,  28. 
void,  where  party  is  to  feign  disinterestedness,  29. 
or  to  conceal  his  agency,  29. 
or  to  violate  trust  reposed,  29. 
same  rules  apply  to  private  as  to  public  officers,  29. 

contract  void  to  procure  appointment  as  cashier  of  bank,  29.. 
or  treasurer  of  corporation,  29. 
or  to  pay  for  personal  recommendation,  29. 
OFFICERS— PUBLIC, 

See  Public  Officers. 

"OPTIONS," 

contracts  for  purchase  of,  when  void,  35. 
OTHER  EMPLOYMENT, 

agent  wrongfully  discharged  must  seek,  623. 

what  other  employment  he  is  bound  to  accept,  623. 
OWNERSHIP-APPARENT, 

agent  having,  may  receive  payment,  338. 

persons  dealing  with  agent  having,  protected,  887.  388. 

PARDONS, 

services  in  procuring,  when  lawful,  32. 


INDEX.  951 

References  are  to  Sections. 

PARDONS,— Continued. 

how  when  conviction  was  illegal,  38. 
PAROL  AUTHORITY, 

sufficient  for  what  purposes,  83-91. 

to  sell  or  lease  lands,  89. 

to  demand  and  collect  rents,  90. 

to  execute  instruments  not  under  seal,  91. 
AROL  EVIDENCE, 

admissible,  to  show  assent  to  contract  by  member  of  club  or  committee 
78. 

to  show  authority  of  agent,  84-107. 

of  agent,  competent  to  prove  or  disprove  his  authority,  103. 

to  identify  parties  or  subject-matter,  298,  300. 

to  explain  ambiguities,  299. 

to  show  intent  of  parties  to  contract,  441,  449. 

to  establish  trust  in  real  estate,  459. 

to  charge  undisclosed  principal,  695,  701. 
inadmissible,  of  agent's  statements  to  show  authority,  100. 

of  general  reputation  to  prove  authority,  101. 

of  agent,  to  prove  authority  required  to  be  in  writing,  103. 

to  enlarge  or  vary  written  authority,  801 ,  802. 

to  discharge  agent  from  contract,  430,  441. 

to  establish  trust  in  real  estate,  459. 

See  EviDKNCB. 
PARTITION, 

authority  to  sell  landg  does  not  authorize,  829. 
PARTNERSHIP, 

may  appoint  agents,  45. 

may  act  as  agents,  65, 

when  one  partner  may  appoint  agents,  70. 

when  partnership  is  agent  either  partner  may  act,  65. 

in  such  case,  act  of  one  is  act  of  all,  65. 
may  ratify  acts  of  agent,  119. 
when  dissolution  revokes  agency,  221. 
when  death  of  partner  revokes  agency,  247. 
notice  of  agency  to  one  partner  when  notice  to  firm,  554. 
PAWNBROKERS, 

definition  and  functions  of,  933. 
PAYMENT, 

when  payment  to  agent  binds  principal,  336,  352. 

authority  to  receive,  when  implied  from  having  sold  goods,  336. 

not  implied  from  possession  of  bill  or  account,  337. 

not  implied  from  having  negotiated  securities,  372. 

party  paying  must  see  that  securities  are  in  agent's  possession,  373. 

agent  selling  goods  in  his  possession  may  receive  payment,  338. 

agent  merely  to  solicit  orders  cannot,  339. 

when  travelling  salesmen  may  receive  payment,  340. 

how  when  payment  to  agent  is  made  part  of  terms  of  sale,  341. 


952  INDEX. 

References  are  to  Sections. 

PAYMENT, — Continued. 

how  notice  of  want  of  authority  may  be  given,  343. 
agent  authorized  to.  can  not  receive  anything  but  money,  376. 
can  not  take  debtor's  note,  375. 
or  note  of  third  person,  875. 
or  note  of  his  own,  875. 
or  draft  on  a  stranger,  375. 
or  depreciated  currency,  375. 

or  horses,  wheat,  merchandise  or  other  property,  375. 
or  set  off  debts  due  from  himself,  375. 
or  take  property  for  his  own  use  in  payment,  375. 
when  may  take  certificates  of  deposit,  375. 
agent  to  receive  payment  has  no  implied  authority  to  take  checks,  853- 
881. 
liable  if  bank  fails  before  payment,  353,  note, 
agent  to  receive  payment  may  not  release  or  compromise  the  debt  with- 
out full  payment,  376. 
may  receive  part  payment,  377. 
agent  may  not  extend  time,  378. 

authority  to  receive  interest  does  not  authorize  receipt  of  principal,  379. 
does  not  authorize  receipt  of  payment  before  due,  880. 
authority  to  take  check  or  note  in  payment  does  not  imply  authority  to 

indorse  and  collect  it,  382. 
agent  to  collect  note  on  demand  can  not  sell  it,  383. 

or  deal  with  funds  collected,  384. 
Implies  authority  to  give  appropriate  discharge,  385. 
when  implies  authority  to  sue,  386. 
when  may  sue  in  his  own  name,  887. 
when  may  employ  counsel,  388. 
not  necessarily  revoked  by  appointment  of  another  agent  to  collect  same 

sum,  219. 
terminates  at  principal's  death,  246. 
PECUNIARY  ABILITY, 

of  purchaser,  when  broker  must  show,  966. 
PERSONAL  CONFIDENCE, 

can  not  be  delegated,  41. 
PERSONAL  DUTY, 

can  not  be  delegated,  41. 
PERSONAL  TRUST, 

can  not  be  delegated,  41. 
PHYSICIAN, 

contract  to  pay  one  for  feigning  disinterestedness,  void,  38. 
consulting  may  recover  for  services,  when,  601. 
PLANTATION, 

agent  to  carry  on,  powers  of,  396. 
may  sell  product  of,  397. 

but  may  not  exchange  for  product  of  another  plantation,  397. 


INDEX.  958 

Beferences  are  to  Sections. 

PLEDGE, 

authority  to  sell  does  not  justify.  358. 

factor  has  no  implied  authority  to.  for  his  own  debts,  994. 

can  not  deposit  bill  of  lading  in,  994. 

usage  cannot  confer  power,  994, 

may  pledge  to  pay  charges  on  goods,  994. 
or  to  meet  principal's  drafts,  994. 

bona  Jtde  pledgee  protected  to  amount  of  factor's  lien,  994. 

unauthorized  pledge  may  be  ratified,  994. 

factor's  acts  confer  power  to  pledge,  995. 

in  what  States  they  exist,  995,  note. 

construction  of  these  acts,  995. 
POSTMASTER. 

not  liable  for  neglect  or  default  of  clerks  and  assistants,  594. 

unless  negligent  in  selecting  them,  594. 

or  in  requiring  them  to  properly  qualify.  594. 

or  in  superintending  affairs  of  his  office,  594. 

or  unless  he  co-operates  in,  or  authorizes  the  act,  594. 
POST  OFFICE, 

contracts  to  procure  location  of,  when  valid,  24,  note. 
PRESUMPTION, 

when  authority  presumed,  83,  84. 
limitations  upon,  85. 
illustrations  of,  86,  87. 
that  agent  is  to  conform  to  custom,  224. 

that  general  agency  continues  until  notice  of  its  reyocation,  224. 
PRICE, 

agent  to  purchase  may  agree  upon,  when,  365. 
agent  to  sell  may  fix,  when,  862. 
factor  must  sell  at  what  price,  1019. 
broker  may  agree  upon,  when,  946. 
auctioneer  may  receive,  when,  897. 

may  sue  for  when,  898. 

See  Authority  to  Receiye  Payment, 
PRINCIPAL— WHO  MAY  BE, 

every  person  competent  to  act  in  his  own  behalf,  43. 

must  have  capacity  to  contract,  43. 

corporations  may  be,  44. 

partnership  may  be,  45. 

each  partner  may  appoint  necessary  agents,  45. 

idiots  and  lunatics  cannot  be ,  47. 

how,  when  appointed  during  sane  interval,  48. 

drunkard  may  be,  when,  49. 

ratification  of  appointment  by,  50. 

infants  can  not  generally  act  by  agent,  51. 

infants  can  not  ratify  appointment,  53. 

what  acts  by  infant's  agent  are  void,  53. 

modern  dissent  from  general  rule  as  to  infant's  incapacity,  54. 


954  INDEX. 

References  are  to  Sections. 

PRINCIPAL— WHO  MAY  B^,— Continue 
how  the  rule  should  be  in  reason,  55. 
married  woman  may  be,  56. 
how  appointment  may  be  made  by  her,  56. 
PRINCIPAL,  DUTIES  AND  LIABILITIES  OP, 
to  agent, 

See  Duties  and  Liabilities  of  PRiNCiPAii  to  Agent. 
to  third  persons, 

See  Duties  and  Liabilities  of  Principal  to  Third  Persons. 
PRINCIPAL— RIGHTS  OF, 

See  Rights  op  PRiNCiPAii. 
PRIVILEGED  COMMUNICATIONS, 

confidential  communications  to  attorney  at  law  are  privileged,  880. 
under  what  circumstances  privilege  exists,  881. 
must  have  been  made  in  confidence,  881. 
not  privileged  if  made  in  contemplation  of  a  crime,  881. 

but  mere  fraud  not  to  be  exposed,  881. 
must  have  been  received  in  capacity  of  attorney,  883. 
does  not  apply  to  facts  otherwise  learned.  882. 
nor  to  third  persons  present,  882. 
nor  to  collateral  facts  involving  no  confidence,  883. 
relation  of  attorney  and  client  must  exist,  883. 

but  no  formal  retainer  or  fee  is  necessary,  883. 
communications  to  mere  scrivener  not  privileged,  883. 
communications  must  have  been  made  to  attorney,  884. 
or  to  his  clerk,  agent,  interpreter  or  representative,  884. 
made  to  mere  student  not  privileged,  884. 
nor  to  unlicensed  attorney  where  license  required,  884. 
privilege  is  that  of  a  client.  885. 
but  he  may  waive  it,  885. 
attorney  cannot,  885. 
what  constitutes  a  waiver,  885. 
continues  perpetually,  886. 

death  of  client  or  attorney  does  not  release  it,  886. 
attorney  may  disclose  for  his  own  protection,  887. 
or  when  sued  by  client,  887. 
or  when  suing  him,  887. 
PROFITS, 

all  profits  of  agency  belong  to  principal,  469. 
PROMOTERS  OF  CORPORATION, 

when  corporation  bound  by  contracts  of,  75. 
PUBLIC  AGENCY, 

may  be  executed  by  a  majority,  78. 

but  all  must  be  present  or  have  opportunity  to  be  present,  78w 
and  no  unfair  means  resorted  to,  78. 
when  not  revocable  at  will  of  principal,  233. 
PUBLIC  AGENTS, 
how  classified,  577. 


INDEX.  965 

Beferenoes  are  to  Sections. 

PUBLIC  AQ-ETHT8.— Continued. 

third  persons  dealing  with  must  ascertain  his  authority,  291. 
presumed  not  to  intend  to  bind  himself  personally,  426. 
when  bound  on  negotiable  paper,  440. 
cannot  purchase  at  his  own  sale,  463. 
nor  let  contract  to  himself,  463. 
when  liable  for  acting  without  authority,  547. 
liable  where  he  expressly  binds  himself,  559. 
liable  for  money  illegally  exacted,  564. 

but  not  if  it  was  voluntarily  paid,  565. 
not  liable  to  individual  for  breach  of  duty  owing  solely  to  public,  578. 
liable  for  wrongs  committed  in  private  capacity,  579. 
not  liable  for  torts  of  official  subordinates,  593. 
See  Public  Officers. 
PUBLIC  OFFICERS, 

See  Public  Agents;  Judicial  Officers;  Legislative  Officbbs  and 
Ministerial  Officers. 
PUBLIC  POLICY, 

agencies  for  purposes  opposed  to,  void,  20. 
the  element  of  contingent  compensation,  31. 
procuring  or  defeating  legislation,  22,  23. 
procuring  contracts  from  governments,  24,  25. 
services  in  prosecuting  claims,  26. 
attempts  to  compromise  crime,  27. 
procuring  appointments  to  office,  28,  29. 
services  in  Improperly  influencing  elections,  30,  31. 
services  in  procuring  pardons,  32,  33. 
services  in  procuring  or  suppressing  evidence,  84. 
services  in  unlawful  dealings  in  stocks  or  merchandise,  36. 
services  in  procuring  marriage,  36. 
services  in  attempting  to  corrupt  agents,  37. 
selling  tickets  in  forbidden  lottery,  38. 
procuring  discharge  of  a  drafted  soldier,  38. 
securing  allowance  of  account,  38. 
posing  as  assumed  disinterested  party,  88. 
violating  rules  of  war,  38. 
keeping  forbidden  saloon,  88. 
or  billiard  table,  38. 
or  lottery,  38. 
working  upon  Sunday,  38. 
whole  contract  is  void  when  entire,  40. 
PUBLIC  USE, 

authority  to  sell  land  implies  no  power  to  dedicate  to,  330. 
but  authority  to  plat  or  lay  out  land  does,  330. 
PURCHASE, 

agent  may  not  buy  on  credit  if  furnished  with  funds,  363. 
but  may  when  not  supplied  with  funds,  364. 
■o  when  he  has  general  authority  to  buy  and  sell,  364.  ^' 


956  INDEX. 

Beferences  are  to  Sections. 

FTJECRABE,— Continued. 

authority  to,  implies  power  to  agree  upon  price  and  terms  of  purchase, 
865. 

to  determine  time  and  method  of  delivery,  865. 

to  acknowledge  receipt  of  goods,  365. 

to  acknowledge  amount  of  indebtedness  therefor,  865. 
limits  as  to  quantity  are  not  to  be  exceeded,  366. 

discretion  may  be  exercised  where  no  limit  is  fixed,  366. 
limits  as  to  quality  or  species  must  be  observed,  367. 
restrictions  as  to  persons  must  be  observed,  368. 

may  make  representations  as  to  principal's  credit  when  authorized  to  buy 
on  credit,  369. 

but  not  if  unnecessary,  369. 
does  not  authorize  making  negotiable  paper,  870. 
ceases  with  principal's  death,  246. 

but  not  where  order  was  mailed  before  death,  246. 
agent  who  has  bought  with  his  own  money  may  stop  goods  in  transit, 

687. 
may  retain  title  of  goods  until  paid  for,  689. 
unauthorized,  is  ratified  by  keeping  property,  150. 

or  by  claiming  title  to  it,  150. 

RAILWAY  SUPERINTENDENT, 

authority  to  employ  physician,  396. 
RATIFICATION, 

what  is  meant  by,  110. 

what  acts  may  be  ratified,  111. 

any  act  principal  could  do  in  person,  111,  113. 

torts  may  be,  113. 

void  acts  cannot  be,  114. 

voidable  acts  may  be,  114. 

illegal  acts  cannot  be,  115. 

when  forgery  may  be,  116. 
who  may  ratify,  117. 

any  person  capable  of  doing  act,  117. 

corporations  may  ratify,  118. 

partners  may  ratify,  119. 

infant  cannot  ratify,  52,  120. 

agent  cannot  ratify  his  own  acts,  121. 

superior  agent  may  ratify  inferior  agent's  acts,  131. 

when  incompetent  person  may,  50. 

when  guardian  or  executor  may,  50. 
conditions  of  ratification. 

principal  must  have  been  identified,  124. 

not  necessary  that  he  should  be  known  to  agent,  124. 
nor  that  he  should  have  been  named,  134. 
but  must  have  been  capable  of  identification,  124. 

principal  must  have  been  in  existence,  125. 


INDEX.  957 

Beferences  are  to  Sections. 

RATIFICATION.— C<?»rtraM«Z. 

principal  must  have  present  ability,  126. 

act  must  have  been  done  as  agent,  137. 

principal  must  have  knowledge  of  material  facts,  128.  129. 

or  voluntarily  assume  act  without  inquiiy,  12»,  129. 
no  ratification  of  part  of  act,  130. 

must  ratify  all  or  none,  130. 
rights  of  other  party  must  have  been  prejudiced,  131. 
burden  of  proof  of,  upon  party  alleging  it,  132. 
relief  of  principal  when  facts  are  fully  known.  138. 
what  amounts  to  a  ratification,  134. 
may  be  express  or  implied,  135. 
when  facts  are  undisputed,  question  is  for  court,  185. 
otherwise  for  the  jury,  135. 

act  of  ratification  must  be  of  same  nature  required  for  authorization 
136. 

where  sealed  authority  requisite,  sealed  ratification  must  be  shown 
186. 

where  statute  requires  authority  in  writing,  written  ratification  musi 

appear,  186. 
how  deed  ratified  at  common  law,  137. 

rule  relaxed  in  partnership  cases,  188. 

Massachusetts  rule,  189. 

modern  rule  more  liberal,  140. 

unnecessary  seal  may  be  disregarded,  141. 

by  authority,  subsequently  conferred,  142. 

by  answer  in  chancery,  143. 
contract  for  sale  of  land  ratified  by  parol,  144 
how  under  Statute  of  Frauds,  145. 
implied  ratification,  in  general,  146. 
Tariety  of  methods,  147. 

by  accepting  benefits,  148. 

one  who  appropriates  fruits  of  agent's  act  ratifies,  148. 

must  have  knowledge  of  the  facts,  148. 

instances,  149,  150. 
by  bringing  suit  based  on  agent's  acts,  151. 

mere  delay  in  suing,  no  ratification  when,    153. 
by  acquiescence  or  silence,  158. 

principal  has  election  to  ratify  or  not,  154. 

must  elect  within  reasonable  time,  165. 

must  not  sleep  on  his  rights,  156. 

different  rules  adopted,  157. 

some  rules  apply  to  corporations,  158. 

and  to  municipal  and  quasi-municipal  corporations,  159. 

how  when  assumed  agent  is  a  mere  stranger,  160. 

the  true  rule,  161. 

■ilence  does  not  ratify  if  stranger  acted  in  his  own  name.  162 

information  from  letter,  163. 


958  INDEX. 

Beferences  are  to  Sections. 

RATIFICATION.— C<m<mwed. 

illustrations  of  rule,  164. 
rule  applies  only  to  principal's,  165. 
results  of  ratification,  equivalent  to  prior  authorization,  167. 

cannot  form  basis  of  affirmative  right  or  part  of  principal,  167. 
cannot  affect  intervening  rights,  167. 
ratification  is  irrevocable,  169. 

results  of  ratification  as  between  principal  and  agent,  170,  171. 
agent's  motives  unimportant,  172. 
principal's  efforts  to  avoid  loss,  no  ratification,  178. 
ratification  must  be  of  whole  act,  174, 
ratification  of  appointment  of  subagent,  175. 
does  not  discharge  agent's  liability  to  third  persons  in  tort,  176. 
acts  of  ratification  liberally  construed,  177. 
as  between  principal  and  other  party,  178,  179. 
other  party  against  principal,  178. 
principal  against  other  party,  179. 

principal  can  not  build  up  affirmative  rights  on  ratification,  179. 
as  between  agent  and  other  party,  180,  181,  183. 
releases  agent  in  contract,  181. 
but  not  in  tort,  182. 
RECEIPT, 

agent  to  receive  payment  may  give  proper  receipt,  385. 
RECOUPMENT, 

principal's  right  of,  against  agent,  647. 
how  distinguished  from  set-oflf,  647. 
when  proper  remedy,  647. 
what  damages  may  be  recouped,  648. 

limit  of  recovery  allowed,  649. 
right  of,  not  cut  off  by  assignment,  650. 
none  against  an  infant,  651. 
against  broker,  975. 
against  factor,  1010. 
REFERENCE. 

attorney  may  consent  to,  813. 
authority  to  settle  does  not  justify,  405, 
ste  Arbitration. 
REIMBURSEMENT, 

agent  must  be  reimbursed  for  proper  outlays,  652. 

cannot  claim  reimbursement  for  wrongful  expenditures,  653. 
nor  for  those  incurred  in  violation  of  instructions,  652. 
right  attaches  only  to  honest  management,  653. 
attorney  entitled  to,  840. 
auctioneer  entitled  to,  917. 
broker  entitled  to,  977. 
factor  entitled  to,  1029. 
RELIGIOUS  SOCIETY, 

when  members  of,  personally  liable  on  contracts,  73. 


INDEX.  959 

Beferenoes  are  to  Sections. 

RENUNCIATION  OF  AGENCY, 

agCDt  may  in  general  renounce  at  any  time,  333. 
liable  for  damages  if  he  renounces  contrary  to  agreement,  288. 
not  liable  where  agency  for  indefinite  time,  233. 
may  renounce  by  mutual  consent,  234. 
abandonment  treated  as  renunciation,  when,  235. 
agent  may  abandon  if  required  to  do  unlawful  act,  236. 
agent  must  give  notice  of  his  renunciation,  237. 
principal  must  also  notify  third  parties,  237. 
REPLEVIN, 

factor  may  maintain,  when,  1041. 
REPRESENTATIONS. 

principal  liable  for  agent's  representations,  when,  714. 

only  when  made  in  respect  to  matter  otherwise  his  authority,  714. 
and  when  made  at  time  of  transaction,  714. 
must  be  part  of  res  gestae,  714. 
what  embraced  within  res  gestos.  715. 
liable  for  agent's  representation  of  extrinsic  fact  on  which  his  authority 

depends,  417. 
liable  for  agent's  false  or  fraudulent  representations,  743. 
RESCISSION, 

agent  to  sell,  cannot  rescind  sale,  360. 
auctioneer  has  no  authority  to  rescind,  901. 
nor  broker,  950. 
nor  factor,  1001 . 
principal  may  rescind,  when  agent  deals  with  himself,  454-468. 

or  where  agent  was  in  secret  employment  of  other  party,  797,  798. 
or  where  agent  had  an  adverse  interest,  713. 
third  persons  may  rescind  because  of  agent's  false  representations,  744. 
RES  GEST^, 

what  embraced  within,  714,  715. 
RESIGNATION, 

request  for  equivalent  to  discharge,  218. 
RESPONSIBLE  PURCHASER, 
duty  of  agent  to  sell  to,  521. 
factor's  duty  to  sell  only  to,  1018. 
RESTRICTIVE  INDORSEMENTS, 

charge  third  persons  with  owner's  rights,  782. 
principal  may  claim  and  recover  proceeds,  783. 
REVOCATION  OF  AUTHORITY, 
I.  By  ORiGtNAii  Agreement. 
agency  may  be  terminated  in  pursuance  of  stipulation  to  that  effect,  200, 

note, 
agency  may  be  terminated  by  expiration  of  time,  200. 

by  accomplishment  cf  object  for  which  it  was  created,  201,  203. 
n.  By  Act  op  the  Parties. 
principal  may  revoke  authority  at  any  time,  204. 
if  not  coupled  with  an  interest  in  the  agent,  204. 


960  INDEX. 

References  are  to  Sections. 

REVOCATION  OF  AJJTROBITY,— Continued. 

fact  that  authority  was  declared  exclusive  or  irrevocable  makes  no 
difference,  204. 
what  interest  will  sufllce,  205,  206. 

must  be  an  estate  or  interest  in  the  thing,  205. 
illustrations  of  this  interest,  206. 

mere  interest  in  result  or  proceeds  of  execution  not  enough,  207. 
commissions  for  sale  of  property  not  interest,  207. 
or  for  collection  of  debt,  207. 
bare  powers  revokable  at  any  time,  208. 
illustrations  of  this,  208. 
State  may  revoke  like  private  individual,  204. 
potoer  to  revoke  to  be  distinguished  from  right  to  revoke,  209. 

principal  who  revokes  contrary  to  his  agreement  liable  in  damages. 
209,  210. 
when  right  to  revoke  exists,  210. 

where  no  definite  lime  agreed  upon,  210. 
where  authority  was  to  cease  in  certain  event,  210. 
where  agent  was  to  give  satisfaction,  210. 
what  amounts  to  a  contract  for  a  definite  time,  211. 

no  damages  for  discharge  of  principal  not  bound  to  retain,  211. 
when  there  is  a  corresponding  and  correlative  obligation  to  retain,  211. 
how  when  the  contract  lacked  mutuality,  211. 
when  both  parties  must  but  bound  or  neither,  211. 
when  engagement  for  definite  time  will  be  implied,  212. 
not  from  yearly  or  monthly  salary  merely,  212. 
but  may  be  from  other  circumstances,  212. 
from  continuance  for  second  year  or  month,  212. 
authority  may  be  revoked  for  agent's  incompetence,  213. 

unless  principal  employed  agent  knowing  him  to  be  incompe- 
tent, 213. 
authority  may  be  terminated  for  agent's  misconduct,  214. 
for  disobedience  of  instructions,  214. 
for  dishonesty,  214,  215. 
for  embezzlement,  215. 

for  engaging  in  trade  in  opposition  to  principal,  215. 
for  being  in  secret  employment  of  otliers,  215,  note, 
for  assaulting  principal's  servants,  215. 
for  seducing  principal's  daughter,  215. 
for  becoming  or  being  a  drunkard,  215. 
for  gambling  on  stock  exchange,  215. 
what  must  be  nature  of  offense,  215. 
by  what  means  authority  may  be  revoked,  216. 
may  be  by  writing  under  seal,  216. 
when  sealed  instrument  required,  217. 
or  by  parol,  216. 

or  may  be  inferred  from  circumstances,  216. 
must  be  co-extensive  with  knowledge  of  agency,  216. 


INDEX.  UOi 

Beferences  are  to  Sections. 

REVOCATION  OF  AVTRORITY,— Continued. 
must  be  recorded  when,  217. 
need  not  be  express,  218. 
request  to  resign  amounts  to,  218. 
revocation  may  be  implied,  219.- 

where  same  power  is  conferred  on  another,  219. 
other  illustrations,  219. 
authority  revoked  by  disposal  of  subject-matter,  220. 

as  where  principal  himself  sells  thing  agent  was  authorized  to 
sell,  220. 
authority  may  be  revoked  by  dissolution  of  corporation,  231. 
or  by  dissolution  of  partnership,  221. 
but  not  by  mere  change  in  name,  221. 
authority  will  be  revoked  by  severance  of  joint  interest,  222. 
notice  of  revocation  must  be  given,  223. 

where  authority  was  general  must  be  given  to  third  persons,  224. 

or  agent  will  continue  to  bind  principal,  224. 
no  notice  required  to  third  persons  when  agency  was  special,  225. 

unless  agent  has  entered  upon  its  performance,  225. 
notice  of  revocation  must  be  given  to  agent,  226. 

takes  effect  from  time  he  receives  it,  226. 
when  notice  must  be  given  to  subagents,  227. 
how  notice  is  to  be  given,  228 

rule  analogous  to  that  in  partnership  cases,  228. 
when  it  should  be  recorded,  229. 
notice  should  be  unequivocal,  230. 
how  sufficiency  of  notice  to  be  determined,  231. 
agent  may  renounce  authority  at  any  time,  233. 

but  will  be  liable  in  damages  at  any  time  if  he  renounces  contrary  to 

his  agreement,  233. 
must  give  reasonable  notice  of  his  intention,  233. 
authority  may  be  terminated  by  mutual  consent,  234, 
abandonment  by  agent  terminates  authority,  235, 

agent  may  abandon  if  required  to  do  illegal  act,  236. 
notice  of  renunciation  must  be  given,  237. 
m.    By  operation  op  law,  238. 
death  of  principal  terminates  agency,  240. 
unless  coupled  with  an  interest,  241. 
what  interest  is  sufficient,  242,  243. 
what  interest  is  not  sufficient,  244. 
that  death  was  unknown  makes  no  difference,  245. 
instances  in  which  rule  was  applied,  246. 
death  of  partner  or  joint  owner  dissolves  agency,  247. 

but  does  not  relieve  firm  from  liability  to  agent,  247. 
death  of  principal  dissolves  authority  to  subagent,  248. 

whether  appointed  with  principal's  authority  or  not,  248. 
death  of  agent  terminates  agency,  249. 
unless  coupled  with  an  interest,  250. 

61 


II 


962  INDEX. 

References  are  to  Sections. 

REVOCATION  OF  KJITUORITY— Continued. 

how  when  one  of  two  or  more  agents  dies,  251. 

effect  of  subagent's  authority,  253. 
insanity  of  principal  dissolves  agency,  253,  254. 

how  when  other  party  ignorant  of  insanity,  255. 

not  dissolved  when  coupled  with  an  interest.  256. 

what  evidence  of  the  insanity  is  sufflci'^nt,  257 
insanity  of  agent  terminates  agency,  258,  259. 

unless  coupled  with  an  interest,  259. 

how  when  insanity  unknown,  260. 
insanity  of  one  of  two  or  more  agents,  261. 

effect  on  subagents,  262. 
bankruptcy  of  principal  terminates  agency,  263. 

mere  insolvency  not  enough,  264. 

not  terminated  when  coupled  with  an  interest,  265. 

how  when  bankruptcy  was  unknown,  266. 
bankruptcy  of  agent  generally  terminates  authority,  267. 

not  where  act  is  of  personal  nature,  267. 
marriage  of  principal  may  terminate  agency,  263. 

how  in  case  of  feme  sole,  268. 
war  terminates  business  agencies,  269. 

what  cases  exempt,  260. 
principal's  removal  from  ofllce  terminates  authority  of  subordinates. 

270. 

See  Dissolution  op  Agency. 
RIGHTS  OP  AGENT  AGAINST  PRINCIPAL, 
L  Payment  op  Compensation. 
1.  Agent's  Bight  to  Compensation,  597. 
express  agreement  as  to  payment  is  conclusive,  598. 
when  agreement  must  be  express,  599. 

between  members  of  same  family,  599. 
when  agreement  to  pay  will  not  be  implied,  600. 
not  where  services  were  gratuitous,  600. 
or  were  obtruded  on  party,  600. 
or  were  rendered  as  mere  act  of  kindness,  600. 
or  under  such  circumstances  as  repel  presumption,  600. 
when  agreement  to  pay  will  be  implied,  601. 

where  party  employed  in  line  of  his  profession,  601. 
or  is  expressly  requested  to  perform,  601. 
when  unauthorized  act  is  ratified,  601. 
3.  Amount  of  Compensation. 
express  contract,  if  any,  governs,  603. 
may  be  left  for  principal  to  determine,  604. 
where  no  agreement,  reasonable  compensation  implied,  605. 
what  elements  may  be  considered,  606. 
what  evidence  of  value  admissible,  607. 

agent  continuing  after  expiration  of  term,  presumed  to  be  at  former  com- 
pensation, 608. 


INDEX.  9t>3 

Beferences  are  to  Sections. 

RIGHTS  OF  AGENT  AGAINST  PRINCIPAL —Con<mu«l 
8.    When  Compensation  it  considered  to  be  earned,  G09. 
«amed  when  undertaking  is  fully  completed,  610. 
when  full  performance  is  a  condition  precedent,  Cll. 
agent's  claim  not  defeated  by  principal's  default,  613. 

nor  by  fact  that  principal  realized  no  profits,  613. 
when  agent  entitled  to  compensation  if  authority  revoked  before  perform- 
ance, 614. 
no  future  compensation  if  authority  is  rightly  revoked,  615. 

nor  where  agency  was  at  principal's  will,  616. 

nor  where  agency  was  terminable  on  a  contingency,  617. 
but  where  agent  is  wrongfully  discharged,   he  is  eu tilled  to  damages, 

618. 
how  when  terminated  for  agent's  misconduct,  619. 

what  misconduct  sufficient,  214,  619. 
how  when  agent  wrongfully  discharged,  620, 

what  remedies  agent  has,  621. 

the  measure  of  damages  to  be  recovered,  622. 

agent's  duty  to  seek  other  employment,  633. 

what  other  employment  he  is  bound  to  accept,  623. 

when  agent's  right  of  action  accrues,  624. 
the  doctrine  of  a  present  breach,  624. 

no  damages  if  agent  acquiesces  in  discharge,  625. 
no  damages  if  agency  revoked  by  principal's  death,  626. 

nor  where  revoked  by  principal's  insanity,  627. 

but  principal's  bankruptcy  is  no  defense,  628. 
how  when  revoked  by  death  of  agent,  629. 

or  by  agent's  insanity,  630. 

or  by  agent's  sickness  or  incapacity,  631. 
how  when  performance  abandoned  by  agent,  632,  633. 

1.  when  abandonment  was  justifiable,  632. 

2.  when  abandonment  was  unjustifiable,  633. 

agent  forfeits  compensation  by  wrongful  abandonment,  635. 

the  rule  of  Britton  v.  Turner  more  liberal,  636,  637. 
brief  absences  no  abandonment,  638. 
condonation  of  abandonment,  639. 
what  will  excuse  abandonment,  640. 
double  agency,  agent  cannot  recover  for,  643. 
unless  fully  known  and  assented  to.  644. 
unlawful  undertakings,  no  recovery  for,  645. 

what  these  are,  18  ei  seq. 
extra  services,  when  recovery  for,  may  be  had,  646. 
none  when  employed  at  regular  salary,  646. 
IT.  Agent's  Right  to  Reimbursement. 
agent  must  be  reimbursed  for  proper  outlays,  652. 

but  not  for  those  caused  by  his  own  default  or  neglect,  652. 
ni.  Agent's  Right  to  Indemnity. 
agent  must  be  indemnified  against  losses  or  liabilities  incurred  in  princi- 
pal's behalf,  653. 


964  INDEX. 

Beferences  are  to  Sections. 

RIGHTS  OF  AGENT  AGAINST  PRllH CIF Ah— Contimied. 

but  agent  is  not  entitled  to  indemnity  if  act  was  unlawful,  654. 

IV.  Agent's  Right  to  Protection  from  Injury. 

1.  FYom  Risks  incident  to  Business. 
principal  generally  not  liable,  656. 

2.  FVom  Negligence  of  Principal. 

principal  responsible  for  his  own  negligence,  657. 

for  dangerous  premises,  658. 

for  dangerous  tools  and  machinery,  659. 

for  injuries  resulting  from  failure  to  repair  as  agreed,  660,  661» 

for  employment  of  incompetent  servants,  663. 

for  injuries  outside  of  employment,  663. 
8.  For  Negligence  of  his  General  Superintendent. 
principal  cannot  escape  responsibility  by  employment  of  general  agents, 
664. 

is  liable  for  general  agent's  neglect,  665. 

when  liable  to  agents  of  independent  contractor,  666. 
4.  For  Negligence  of  his  Fellow-servants. 
principal  in  general  not  liable,  667. 
who  is  a  fellow-servant,  668. 
volunteer  assisting  servant  is,  669. 

contributory  negligence  of  servant  defeats  recovery,  670. 
agreements  to  waive  liability  invalid,  761. 

V.  Agent's  Right  op  Lien. 
agent  entitled  to  lien,  684, 

is  ordinarily  a  particular  lien,  685. 
for  what  sums  it  attaches,  686. 

See  Lien. 

VI.  Agent's  Right  of  Stoppage  en  Transit. 
agent  liable  for  price  of  goods  may  stop  them,  687. 

right  exercised  as  in  other  cases,  688. 
such  an  agent  may  retain  title  till  goods  are  paid  for,  689. 
RIGHTS  OF  AGENT  AGAINST  THIRD  PERSONS. 

right  of  action  on  agent's  contract  generally  in  principal  alone,  753. 
but  agent  may  sue  on  contract  made  with  him  personally,  755. 
or  where  he  has  a  beneficial  interest,  756. 
or  where  the  contract  is  under  seal,  758. 
agent's  right  depends  on  contract,  759. 
right  of  assumed  agent  to  show  himself  principal,  760. 
ao-ent  may  recover  money  paid  by  him  under  mistake  or  illegal  contract. 
°761. 

what  defenses  open  to  third  person,  762. 
what  damages  agent  may  recover  on  contract,  763. 
agent  may  recover  for  personal  trespass,  764. 
when  agent  may  recover  for  injuries  to  principal's  property,  765. 
RIGHTS  OF  PRINCIPAL  AGAINST  AGENT, 

See  Duties  and  Liabilities  of  Agent  to  Prencipau 


INDEX.  965 

References  are  to  Sections. 

RIGHTS  OF  PRINCIPAL  AGAINST  THIRD  PERSONS, 
principal  may  recover  securities  wrongfully  released,  790. 
may  recover  property  wrongfully  sold  by  agent,  791. 
principal  may  recover  for  injuries  from  third  person's  torts,  792. 
for  enticing  agent  away,  793. 

for  preventing  agent  from  performing  his  duty,  794. 
for  personal  injury  to  agent  causing  loss  of  service,  795. 
third  person  not  liable  for  agent's  own  torts  or  neglect,  796. 
principal  not  bound  where  third  person  colludes  with  agent,  797. 

nor  when  agent  in  secret  employment  of  other  party,  798. 
principal  not  bound  by  judgment  against  agent  to  which  he  was  not  a 

party,  799. 
cannot  be  built  up  on  ratification  of  agent's  unauthorized  act,  179. 
principal  entitled  to  enforce  all  rights  against  third  persons,  767. 
may  sue  on  contracts  made  in  his  name,  768 
may  sue  on  contracts  made  in  his  behalf  but  in  agent's  name,  769. 
except  where  contract  was  personal  to  the  agent,  770. 
or  where  it  was  made  with  agent  exclusively,  771. 
principal's  right  to  sue  superior  to  agent's,  772. 

principal  subject  ';o  defenses  which  could  have  been  made  against  agent, 
773. 
unless  other  party  knew  he  was  dealing  with  an  agent,  774. 
principal  takes  subject  to  defenses  founded  on  agent's  fraud  or  misrepre 

sentations,  775. 
third  persons  cannot  dispute  principal's  title,  when,  776. 
principal  may  recover  money  wrongfully  paid  or  used  by  agent,  778,  779, 

788. 
principal  may  follow  and  recover  trust  funds  as  long  as  they  can  be 
identified,  780. 
and  it  makes  no  difference  that  form  has  been  changed,  780. 
unless  funds  come  into  the  hands  of  a  bona  fide  holder  without 

notice,  780,  781. 
where  indorsement  is  restrictive  third  persons  are  charged   with 
notice,  782. 
principal  may  recover  property  wrongfully  used  or  disposed  of  by  agent, 

784. 
principal's  title  not  divested  without  his  consent,  785. 
mere  possession  of  property  no  evidence  of  authority  to  dispose  of  it, 
786. 
but  may  be  when  coupled  with  indicia  of  ownership,  787. 
principal  may  recover  property  appropriated  to  agent's  use,  789. 
RIGHTS  OP  THIRD  PERSONS  AGAINST  AGENT. 
1.  In  Contkact. 
agent  not  liable  to  third  persons  for  non- feasance,  539. 
liable  for  misfeasance,  540. 
liable  where  he  acts  without  authority,  542,  550. 

liable  where  he  expressly  warrants  his  authority,  543. 
liable  where  he  makes  false  representations  as  to,  543. 


966  INDEX. 

References  are  to  Sections. 

RIGHTS  OF  THIRD  PERSONS  AGAINST  AGENT,— Continued. 

liable  where,  while  he  know  he  has  no  authority,  he  yet  contracte 

as  authorized,  544. 
liable  for  assuming  an  authority  he  does  not  possess,  545. 
but  other  party  must  have  acted  in  good  faith.  545. 
implied  warranty  limited  to  matters  of  fact,  545. 
how  where  he  fully  discloses  his  authority,  546. 
how  in  case  of  public  agents,  547. 

contract  must  have  been  one  enforceable  against  principal,  if  author 
Ized,  548. 
in  what  form  of  action  agent  is  liable,  549. 
when  agent  is  liable  on  contract  itself,  550. 
liable  where,  though  authorized,  he  fails  to  bind  principal,  552. 
liable  for  breach  of  implied  warranty  of  authority,  553. 
only  when  it  depends  on  questions  of  fact,  553. 
not  liable  for  defect  in  point  of  law,  553  and  note, 
liable  where  he  conceals  agency,  554. 

or  name  of  his  principal,  554. 
not  liable  where  he  makes  a  full  disclosure,  555. 
how  when  agent  acts  for  a  foreign  principal,  556. 
liable  where  there  is  no  responsible  principal,  557. 
liable  where  he  contracts  personally,  558. 
not  liable  for  money  paid  over  to  principal  before  notice,  561. 

or  where  before  notice  his  situation  has  been  changed,  563. 
hut  is  liable  if  agency  was  not  known,  563. 
liable  for  money  illegally  obtained,  564. 

but  not  if  it  was  voluntarily  paid,  565, 
how  when  agent  was  mere  stockholder,  566. 
when  liable  to  third  persons  for  money  received  for  them,  567. 
what  constitutes  assent  in  such  cases,  563. 
2.  Ik  Tort. 
not  liable  for  non-feasance,  569. 
not  liable  to  stranger  for  breach  of  duty  owing  to  principal,  569,  570. 

malicious  motive  is  not  material,  570. 
liable  for  misfeasances,  571. 

distinction  between  non-feasance  and  misfeasance,  573. 
principal's  knowledge  or  direction  no  defense,  573. 
fact  that  agent  derived  no  benefit  no  defense,  573. 
nor  that  he  acted  in  good  faith,  578. 
liability  in  respect  to  subagents,  575. 
RIGHTS  OF  THIRD  PERSONS  AGAINST  PRINCIPAL. 

See  Duties  and  LiABrLiTiES  op  PmncipaIi  to  Third  Persons. 
RISKS. 

principal  not  liable  to  agent  or  servant  for  risks  incident  to  business,  656. 
SAFES. 

agent  to  sell  has  no  implied  authority  to  warrant  burglar  proof,  350. 
SALE. 

unauthorized,  ratified  by  accepting  proceeds,  149. 


INDEX.  9C7 

Beferences  are  to  Sections. 
BAhB,—Oontinued. 

I.       Of    liAND. 

authority  to  sell,  what  is  suflQcient,  818. 
terminates  at  principal's  death,  246. 
when  authority  to  be  exercised,  819. 

authority  to  sell  "immediately,"  319. 
authority  to  sell  "within  a  short  time,"  319. 
what  form  of  execution  authorized,  320. 

when  includes  land  subsequently  acquired,  320. 
implied  right  to  convey,  321. 
to  insert  usual  covenants  of  warranty,  322. 
does  not  imply  power  to  mortgage,  323. 
implies  authority  to  receive  so  much  of  purchase  price  as  is  to  ta  paid 

down,  324. 
does  not  imply  authority  to  give  credit,  325. 
except  where  agent  is  left  to  fix  terms,  325. 

when  no  time  fixed,  agent  authorized  to  give  credit,  may  give  reason 
able  time,  825. 
does  not  authorize  exchange  or  gift  of  lands,  826. 
does  not  authorize  waste,  827. 

or  sale  of  timber  separate  from  land,  327. 
does  not  authorize  changing  boundaries  of  land,  328. 
does  not  authorize  partition,  329. 
does  not  authorize  dedication  to  public  use,  330. 
does  not  authorize  conveyance  in  payment  of  agent's  debts,  881. 
does  not  imply  power  to  revoke  contract,  332. 
floes  not  imply  power  to  discharge  mortgages,  333 

but  agent  having  general  authority  to  deal  in  land  may  assume  mort- 
gage as  part  of  the  purchase  price,  333. 
does  not  imply  power  to  invest  proceeds,  334. 
II.    Ok  personal  property. 
authority  to  sell,  what  constitutes,  335. 
can  not  be  delegated  to  subagent,  when,  186. 
terminates  with  principal's  death, 
when  implies  authority  to  receive  payment,  836. 

authority  to  receive  payment  not  implied  from  possession  of  the  bill, 
837. 
agent  having  possession  of  other  indicia  of  ownership   may  receive  pay- 
ment, 838. 
agent  to  sell  merely  or  to  solicit  orders,  without  possession  of  the 

goods,  not  authorized  to  receive  payment,  339. 
when  traveling  salesman  may  receive  payment,  840. 
how  when  payment  to  agent  was  part  of  the  terms  of  sale,  341. 
notice  of  want  of  authority,  342. 
has  no  implied  authority  to  sell  his  samples,  343. 
purchaser  from  can  not  set  off  debt  due  from  agent,  844. 
when  implies  authority  to  hire  horses,  345. 
or  authority  to  procure  other  supplies,  346. 


063  INDEX. 

Beferences  are  to  Sections. 

BALE,  —Continued. 

when  implies  authority  to  warrant  quality,  347,  348,  349,  350. 

when  implies  authority  to  warrant  title,  351. 

does  not  imply  power  to  barter  or  exchange,  352. 

does  not  imply  power  to  give  credit,  353. 

does  not  authorize  appropriation  to  agent's  use,  854, 

does  not  imply  power  to  release  principal's  right  or  to  pay  his  debts,  355. 

does  not  imply  authority  to  pledge,  856. 

or  to  mortgage,  361. 
does  not  imply  authority  to  promise  commissions  on  subsales,  357. 
does  not  imply  authority  to  sell  at  auction,  358. 
when  authority  is  to  be  executed,  359. 
ageni  to  sell  has  no  implied  power  to  rescind  sale,  860. 

may  fix  the  price  and  terms  of  sale,  362. 

a.  Sales  by  Auctioneer. 

terms  of  sale,  auctioneer  may  fix,  895. 

not  to  be  inconsistent  with  printed  terms,  895. 
acceptance  of  bid,  auctioneer's  power,  896. 

can  not  in  general  refuse  to  accept  bids,  896. 

but  may  of  incompetent  or  irresponsible  bidder,  896. 
price,  auctioneer's  power  to  receive,  897. 

may  receive  price  of  chattels,  897. 

but  only  deposits  on  sale  of  land,  897, 

can  receive  nothing  but  money,  897. 
delegate  his  authority,  auctioneer  may  not,  899. 

but  may  employ  another  to  make  outcry,  899. 

or  wield  the  hammer  under  his  direction,  899. 
credit,  has  no  power  to  grant,  900. 

unless  justified  by  usage,  900. 
rescind  sale,  has  no  power  to,  901. 

or  to  permit  bidder  to  withdraw  accepted  bid,  901. 
private  sale  not  warranted  when  authorized  to  sell  at  auction,  908. 

even  though  better  terms  received,  902. 
bidding  for  himself,  unauthorized,  903. 

or  to  authorize  another  to  bid  for  him,  903. 
warranty  of  quality  unaiiiborized,  904. 

in  absence  of  usage  to  that  effect,  904. 
cash  sales,  duty  to  make,  909. 

must  bear  loss  incurred  from  credit  sale,  909. 
third  persons,  must  sell  only  to,  910. 

sale  to  or  for  himself  not  binding,  910. 
sell  in  person,  duty  to,  911. 

liable  for  losses  from  delegation,  911. 
disclosing  principal,  duty  as  to,  912. 

personally  liable  otherwise.  912. 

sale  of  property  of  A  at  B's  sale  should  be  announced  913. 

b.  Boies  by  Brokers. 

usual  and  necessary  powers  implied,  941. 


INDEX.  969 

Befereaces  are  to  Sections. 

SALE, — Continued. 

effect  of  his  instructions,  943. 
acting  for  both  parties,  943. 

only  with  principal's  consent,  943. 
delegation  of  powers  not  generally  permitted,  944. 

but  usage  may  sanction  it,  944. 
acts  usually  in  name  of  principal,  945. 

but  usage  may  sanction  different  course,  945. 
price  may  be  fixed  by,  when,  946. 

must  be  usual  or  market  price,  946. 
warranty  of  quality  may  be  given,  when,  947. 

may  sell  by  sample,  when,  947. 
credit  may  be  given  on  sales,  948. 

unless  there  be  usage  to  the  contrary,  948. 
payment  to  does  not  generally  bind  principal,  949. 

is  therefore  at  payer's  risk,  949. 
rescission  by,  unauthorized,  950. 

cannot  buy  of  or  sell  to  principal,  when,  953. 

usage  will  not  justify  it,  952. 
acting  for  both  parties  only  allowed  with  consent  of  principal,  953. 

without  such  consent,  transaction  voidable,  953. 
instructions  must  be  obeyed,  954. 

except  in  case  of  sudden  emergency,  954. 
e.  Sales  by  Factort. 
factors  possess  the  implied  and  incidental  powers  necessary  to  accomplish 

object,  988. 

provided  they  are  not  forbidden,  988. 
usage  confers  what  powers,  989. 

factor  presumed  to  be  authorized  to  observe,  989. 

must  perform  in  the  usual  manner,  989. 
credit  sales  may  be  made  in  absence  of  usage  otherwise,  990. 

factor  may  take  note  for  price,  990. 

and  collect  or  discount  it  for  principal,  990. 

but  if  discounts  for  himself,  makes  paper  his  own,  990. 
may  sell  in  his  own  name,  991. 

unless  instructed  otherwise,  991. 
warranty  of  quality,  factor  may  give  when  usual,  993. 
payment  may  be  received  by  factor,  992. 

he  may  give  proper  receipt,  992. 
good  faith  is  required,  1007. 

must  not  put  himself  in  antagonistic  position,  1007. 
obedience  to  instructions  is  required,  1008. 

advances  or  sudden  emergency  may  excuse,  1008. 

liable  for  loss  occasioned  by  disobedience,  1008. 
not  if  instructions  were  ambiguous,  1008. 

acceptance  of  consignment  binds  factor,  1008. 

damages  recoverable  against,  1008. 
instructions  to  sell,  factor's  general  duty  to  obey,  1009. 


970  INDEX. 

References  are  to  Sections. 

BALE, — Continued. 

liable  for  loas  from  disobedience,  1009. 
reimbursing  himself,  factor's  right  to  sell  for,  1009. 
must  not  exceed  the  necessity  of  the  case,  1009. 
right  to,  may  be  waived,  1009. 
cash,  instructions  to  sell  for,  1010. 

usage  can  not  justify  violation  of,  1010. 
responsible  purchaser,  duty  to  sell  only  to,  1013. 

factor  liable  as  guarantor,  1013. 
del  credere  commissions,  effect  of,  1014. 
factor  liable  as  principal  debtor,  1014. 
does  not  extend  his  powers  or  relieve  him  from  duty,  1014. 
undertaking  of,  not  within  statute  of  frauds,  1014 
discretion  as  to  sales,  1016. 

factor  may  exercise,  when,  1016. 
place  of  sale,  what  to  be,  1017. 

presumed  to  be  at  place  where  factor  resides,  1017. 
time  of  sale,  must  be  reasonable,  1018. 

liable  if  he  neglects  to  sell  within,  1018. 
price,  must  sell  at  market,  1019. 

liable  for  loss  from  under  sale.  1019. 
collection  of  price,  duty  as  to,  1020. 
liable  if  lost  by  negligence,  1020. 
d.  Bescission  of, 

See  Rescission. 
SALES  FOR  CASH, 

authority  to  sell  land  presumed  to  be  for  cash,  325. 
authority  to  sell  personal  property  presumed  to  be,  353. 
broker's  sales  not  required  to  be.  when,  948. 
factor's  sales  not  required  to  be,  when,  990. 
auctioneer's  sales  presumed  to  be  for  cash,  900. 
instructions  to  sell  for  cash,  factor  must  observe,  when,  1010. 
SALOON 

contract,  to  carry  on,  when  forbidden,  void,  38. 
SAMPLE— SALE  BY, 

what  warranty  agent  may  give  upon,  349. 
SAMPLES, 

travellinii  salesman  has  no  implied  authority  to  sell,  343. 
SATISFACTION, 

when  agent  who  does  not  give,  may  be  discharged,  210. 
SCHOOL-BOARD, 

when  individually  liable  for  wages  of  teacher,  73. 
SCRIVENER, 

communications  to,  not  privileged,  883. 
SEAL, 

authority  to  execute  sealed  instruments  must  be  under  seal,  93. 
or  to  fill  blanks  in  deeds,  94. 
bow  when  seal  on  instrument  was  superfluous,  95. 


INDEX.  971 

Beferenoes  are  to  Sections. 

SEAL. — Continued. 

how  when  instrument  executed  in  principal's  presence  and  by  his 

direction,  96. 
appointment  of  agent  by  corporation  need  not  be  under,  97. 
even  to  execute  deed  of  corporuie  really,  98. 
ratification  of  sealed  instrument  must  be  under  seal,  137. 
this  rule  re-laxed  in  partnership  cases,  138. 
Massachusetts  rule  in  reference*to,  139. 
modera  rule  more  liberal  than  old  one,  140, 
superfluous  seal  may  be  disregarded,  141. 
execution  of  sealed  instruments,  418-430. 

must  purport  to  be  made  and  signed  in  name  of  principal,  419. 
not  enough  that  agent  is  described  as  such,  431. 
what  form  is  sufficient,  425. 
whether  fact  of  agency  should  appear,  427-43i). 
whether  parol  evidence  admissible  to  show  intention,  430. 
SEALED  INSTRUMENTS, 

See  Seal. 
SECRET  EMPLOYMENT, 

principal  not  bound  when  his  agent  was  also  in  secret  employment  of 
other  party,  798. 
such  conduct  is  a  fraud  upon  principal  which  entitles  him  to  relief, 

798. 
that  he  was  not  in  fact  injured  makes  no  difference,  798. 
SECRET  GRATUITIES. 

given  to  agent  to  influence  his  conduct  against  his  principal,  render  con- 
tracts, etc.,  void,  798,  note, 
that  agent  was  not  in  fact  influenced,  makes  no  difference,  798,  not*. 
that  principal  was  not  injured  makes  no  difference,  798. 
See  Corruption  of  AoKNTa. 
SEDUCTION, 

principal  may  recoup  damages  for,  215. 
may  discharge  agent  for,  315. 
SERVANT, 

how  corresponds  with  agent,  2. 
1.  Rights  against  master. 
master  not  liable  to  servant  for  risks  incident  to  business,  658. 
is  responsible  for  his  own  negligence,  657. 
for  dangerous  premises,  658. 
for  dangerous  tools  and  machinery,  659. 
for  failure  to  repair  as  agreed,  660,  661. 
for  employment  of  incompetent  servants,  663. 
for  employing  servant  outside  of  his  employment,  6G3. 
is  responsible  for  negligence  of  his  general  superintendent,  665. 
when  liable  to  servants  of  contractor, 666. 
not  liable  for  negligence  of  fellow-servant,  667. 
who  is  a  fellow-servant,  668. 
volunteer  assisting  servant,  is,  669. 


972  INDEX. 

Beferences  are  to  Sections. 

SERVANT,— C<m«n««d. 

contributory  negligence  of  servant  defeats  recovery,  670. 

what  constitutes,  670. 
waiver  of  master's  liability,  invalid,  671. 
compensation. 

See  Compensation  op  Agent. 

2.  Duties  akd  liabilities  to  master. 

servant  must  be  loyal  to  his  master's  interests,  454  et  seq. 

must  not  deal  with  business  for  his  own  benefit,  456. 

earnings  of  servant  belong  to  master,  471. 
servant  must  obey  instructions,  473. 

is  liable  for  losses  occasioned  by  his  disobedience,  474,  et  teq. 
servant  must  use  reasonable  care  and  diligence,  490  et  seq. 

is  liable  for  injuries  from  his  negligence,  490,  et  seq. 

3.  Rights  against  third  persons. 

servant  may  sue  on  contracts  made  by  him,  when,  753-759. 

may  recover  money  paid  out  by  him  under  mistake  or  illegal  contract, 

761. 
may  recover  for  trespasses  upon  himself, 764. 

may  recover  for  injuries  to  master's  property  in  servant's  possession, 
765. 

4.  Liabilities  to  thibd  pbbsons. 
a.  In  contract. 

servant  not  liable  to  third  person  for  non-feasance,  539. 
liable  for  misfeasance,  640. 
liable  where  he  acts  without  authority,  542,  550. 

liable  where  he  expressly  warrants  his  authority,  542. 

liable  where  he  makes  false  representations  a9  to,  543. 

liable  where,  while  he  knows  he  has  no  antbority.he  yet  contracts 
as  authorized,  544. 

liable  for  assuming  an  authority  he  (ioes  not  possess,  545. 
but  other  party  must  have  acted  in  good  faith,  545. 
implied  warranty  limited  to  matters  of  fact,  545. 

how  where  he  fully  discloses  his  aulliority,  546. 
liable  where  though  authorized  he  fails  to  bind  principal,  553. 
liable  for  breach  of  implied  warranty  of  autliority,  553. 
liable  where  he  conceals  agency,  554. 
not  liable  where  he  makes  a  full  disclosure,  555. 
liable  where  there  is  no  responsible  principal,  557. 
liable  where  he  contracts  personally,  558. 
not  liable  for  money  paid  over  to  master  before  notice,  561. 

or  where  before  notice  his  situation  has  been  changed,  562. 
liable  for  money  illegally  obtained,  564. 

but  not  if  it  was  voluntarily  paid,  565. 
how  when  servant  was  mere  stockholder,  566. 
when  liable  to  third  persons  for  money  received  for  them,  567. 

what  constitutes  assent  in  such  cases,  568. 


INDEX.  973 

References  are  to  Sections. 

SERVANT. — Continued. 
h.  In  Tort. 

not  liable  for  non-feasance,  569. 

not  liable  to  stranger  for  breach  of  duty  owing  to  principal,  569,  670. 

malicious  motive  is  not  material,  570. 
liable  for  misfeasances,  571. 

distinction  between  non-feasance  and  misfeasance,  573. 
master's  knowledge  or  direction  no  defense,  573. 
fact  that  servant  derived  no  benefit,  no  defense,  573. 
nor  that  he  acted  in  good  faith,  573. 
liability  in  respect  to  subagents,  575. 
See  Master. 
SETTLE.— AUTHORITY  TO, 

authority  to  settle  dispute  does  not  authorize  submission  of  it  to  arbitra> 

tion,  405. 
does  not  authorize  assignment  or  pledge  of  demand,  406. 
when  implied,  to  settle  claims  for  corporation,  86,  note. 
SET  OFF, 

purchaser  from  agent  authorized  to  sell  can  not  set  off  agent's  debt,  344. 
agent's  right  of,  as  against  principal,  535. 
may  be  waived  by  contract,  535. 
cannot  exist  contrary  to  express  trust,  535. 
must  be  with  principal's  consent,  535. 
third  persons  may  avail  themselves  of  set-off  against  agent  in  suit  by 
principal,  when,  773,  774. 
in  suit  brought  by  agent,  762. 
broker's  debt  can  not  be  set  off  against  principal,  986. 
factor's  debt  may  be,  when,  1043. 
SHERIFF, 

can  not  purchase  at  his  own  sale,  463. 
SHIP  BROKERS, 

definition  and  functions  of,  935. 
SICKNESa, 

abandonment  by  agent,  because  of,  no  forfeiture,  631. 
agent  entitled  to  compensation  for  services  already  rendered,  631. 
rule  is  otherwise  where  sickness  could  have  been  anticipated  631 
SLAVE, 

might  be  an  agent,  60. 
SOCIETIES  —  UNINCORPORATED, 

when  liable  for  contracts  of  members,  72,  73,  74. 
mere  membership  does  not  impose  liability,  73,  74. 
are  not  partnerships,  72. 
SOLD  NOTE, 

purpose  and  form  of,  by  broker,  932. 
SPECIAL  AGENT, 
defined,  6. 

how  distinguished  from  general  agent,  6,  9,  284,  285. 
uses  of  this  distinction,  7. 


974  INDEX. 

References  are  to  Sections. 

SPECIAL  AQ'KT^T,— Continued. 
difllculty  in  distinguishing,  8. 
the  true  distinction,  285. 
authority  of,  must  be  strictly  pursued,  288. 

binds  his  principal  only  when  acting  within  limits  of  Ms  authority,  288. 
revocation  of  authority  of,  notice  not  required,  225. 
STATUTE  OP  FRAUDS, 

when  agent  to  making  contract  for  sale  or  leasing  of  lands  must  have 

written  authority,  89. 
not  required  to  be  a  formal  or  a  sealed  writing,  92. 
how  agent  may  be  "  lawfully  authorized  "  under,  145. 
necessity  of  maturity  under,  211. 

employment  of  broker  to  find  purchaser,  not  within,  966. 
del  credere  commission  not  within,  1014. 
STATUTE  OF  LIMITATIONS, 
when  agent's  claim  barred  by,  624. 
when  agent's  liability  barred  by,  533. 
STATION  AGENT, 

may  contract  for  cars,  896. 

but  may  not  employ  physician  to  attend  injured  person,  896. 
STATUTORY  AGENCY, 

agency  required  by  law  not  revocable  at  principara  will,  232. 
agency  to  receive  service  of  process  for  foreign  insurance  company  only 
revoked  upon  appointment  of  another  agent,  233. 
STOCK  BROKERS, 

definitions  and  functions  of,  986. 
mode  of  dealing  by,  936. 
powers,  duties  and  liabilities  of,  936. 
STOCK  GAMBLING, 

contracts  for  void,  35. 
STOPPAGE  IN  TRANSIT, 

agent  liable  for  price  of  goods  may  stop  them  in  transit,  687. 
but  not  if  balance  of  accounts  was  against  agent,  687. 
nor  where  agent  is  mere  surety,  687. 

nor  where  he  delivers  goods  to  third  person  by  principal's  direction, 
687. 
right  exercised  as  in  other  cases,  688. 
agent  may  retain  title  till  goods  are  paid  for,  689. 
"  STREET  ADVICE," 

attorney  not  liable  for  error  in,  497. 
SUBAGENT, 

agent  has  in  general  no  power  to  appoint,  184-197. 

when  attorneys  may  appoint.  187. 

when  arbitrators  may  appoint,  188. 

when  executors  etc.  may  appoint,  189. 

when  auctioneer  may  appoint,  899. 

when  broker  may  appoint,  944. 

when  factor  may  appoint,  998. 


INDEX.  975 

References  are  to  Sections. 

BTJBA.OENT,— Continued. 

appointment  justified  in  certain  cases,  192-196. 
1.  when  duty  is  mechanical  or  ministerial,  193. 
S.  when  necessity  requires  it,  194. 
8.  when  justified  by  usage  or  course  of  trade,  195. 
4  when  originally  contemplated,  196. 
general  result  of  appointment,  197. 
when  his  authority  ceases  with  agents,  237. 
when  notice  of  revocation  must  be  given  to,  287. 
death  of  principal  dissolves  authority,  248. 
when  death  of  agent  dissolves  authority,  252. 
when  insanity  of  agent  dissolves  authority,  262. 
when  agent  liable  for  his  acts,  197. 
when  principal  may  sue,  519. 
to  whom  he  should  account,  524. 
when  responsible  for  his  own  torts,  575. 
has  recourse  to  agent  when,  575. 

how  when  agent  concealed  principal,  578. 
when  principal  is  liable  for  his  compensation,  690. 
when  principal  must  reimburse  and  indemnify  him,  691. 

and  protect  him  from  injury,  692. 
when  entitled  to  lien,  693. 
notice  to,  binds  principal,  when,  728. 
SUBSCRIPTION  LIST, 

possession  of,  not  evidence  of  authority  to  collect,  87. 
SUBSTITUTE,  See  Sxjbagent. 

SUBSTITUTION, 

See  Delegation  op  authokitt. 
SUIT, 

bringing,  based  on  agent's  act.  ratifies  it,  151. 
SUPERCARGO, 
definition  of,  14. 

how  differs  from  foreign  factor,  14,  note. 
TENANTS  IN  COMMON, 

appointment  of  agents  by,  71. 
all  must  concur,  71. 
TITLE, 

agent  purchasing  goods  with  his  own  money  may  retain  title  till  paid  for, 
689. 
TORTS, 

may  be  ratified,  118. 

principal's  ratification  of  agent's  tort  does  not  discharge  agent  from  lia 
bility  to  third  persons,  176—182. 
liable  for  agent's  wrongful  acts  expressly  directed,783. 
liable  for  agent's  neglected  act  in  course  of  employment,  784. 

what  acts  are  within  this  rule,  735,  736. 
not  liable  for  negligence  of  agent  not  in  course  of  employment,  737. 
illustrations  of  the  rule,  738. 


976  INDEX. 

Beferenoes  areto  Seotions. 

TORTB, — Ccntimud. 

liable  for  agent's  fraudulent  acts  in  course  of  employment,  739. 
liable  for  agent's  malicious  act  in  course  of  employment,  740. 

illustrations  of  this  rule,  741. 
liable  for  agent's  use  of  excessive  force,  742. 
liable  for  agent's  false  or  fraudulent  representations,  when,  748. 

third  person's  remedies  in  such  case,  744. 
liable  civilly  for  agent's  criminal  or  penal  act,  when,  745. 
liable  criminally  for  agent's  criminal  or  penal  act,  when,  746. 
liable  for  acts  of  independent  contractor,  when,  747. 

illustrations  of  this  rule,  748. 
effect  of  ratification  on  liability.  750. 
measure  of  damage  recoverable,  751. 

unsatisfied  judgment  against  agent  no  bar  to  holding  principal,  752. 
agent  not  liable  to  third  persons  for  non-feasance,  569. 

not  liable  for  breach  of  duty  owing  solely  to  principal.  569,  570. 

malicious  motive  immaterial,  570. 
liable  for  misfeasances,  571. 

distinction  between  non-feasance  and  misfeasance,  572. 
principal's  knowledge  or  direction  no  defense,  573. 
nor  fact  that  agent  derived  no  profit,  573. 
nor  that  he  acted  in  good  faith,  573. 
third  persons  liable  to  principal  for  injuries  from  their  torts,  792. 
for  enticing  agent  away,  793. 
for  preventing  agent  from  performing  duty,  794. 
for  personal  injury  to  agent  causing  loss  of  services,  795. 
third  persons  liable  to  agent  for  torts  upon  him,  764. 

or  injuries  to  principal's  property  in  agent's  possession,  765. 
TRAVELING  AGENT, 

when  he  may  receive  payment.  340. 

when  payment  to  him  part  of  terms  of  sale,  341. 

how  notice  of  want  of  authority  may  be  given,  343. 

has  no  implied  power  to  sell  his  samples,  343. 

nor  to  use  principal's  goods  to  pay  his  own  debts,  344. 

may  hire  horses  when  necessary,  345. 

but  can  not  bind  principal  for  his  own  board,  when,  848. 
or  for  keep  of  his  horse,  when,  346. 
when  may  warrant  quality,  347,  348,  349. 
but  can  give  no  unusual  warranty,  350. 
when  may  warrant  principal's  title,  351. 
may  not  give  credit,  when,  353. 
may  not  appropriate  goods  to  his  own  use,  354. 
may  not  rescind  the  sale,  360. 
may  fix  price  and  terms  of  sale,  when,  863. 
TREASURER,  OP  COUNTY, 

can  not  purchase  at  his  own  sale,  468. 
TROVER, 

when  agent  liable  to  principal  in,  476,  477. 


INDEX.  977 

References  axe  to  Seotiona. 

TP^OY^B.,— Continued. 

factor  may  maintain,  1041. 

TRUST, 

when  may  be  established  by  parol,  459. 

TRUSTEE, 

cannot  purchase  at  his  own  sale,  463. 
must  account  for  profits  made,  469. 
TRUST  FUNDS, 

principal  may  follow  into  hands  of  third  person,  780,  781. 

no  matter  that  firm  has  been  changed,  780,  781. 

unless  third  person  is  bona  fide  holder  without  notice,  780. 
UNDISCLOSED  PRINCIPAL, 

liable  when  discovered,  on  simple  contracts,  695,  696. 
the  rule  of  liability  stated,  696. 

not  liable  where  he  has  previously  been  misled  by  other  party  into 
settling  with  agent,  697. 

not  liable  where  other  party  has  trusted  agent  exclusively,  698. 
what  constitutes  election  to  hold  agent  alone,  699. 

taking  agent's  note  does  not,  699. 

nor,  charging  goods  to  him,  699. 

or  sending  him  the  bill,  699. 

or  filing  claim  against  his  estate,  699. 

nor  commencing  action  against  him,  699. 
election  must  be  made  within  a  reasonable  time,  700. 
principal  may  be  charged,  although  name  does  not  appear,  701, 

or  although  other  party  supposed  agent  to  be  principal,  701. 

or  although  contract  is  in  writing,  701. 

rule  does  not  apply  to  contracts  under  seal,  702. 
UNIVERSAL  AGENCY, 
defined,  6, 
very  rare,  6,  275. 
how  created,  6,  275. 
UNLICENSED  BROKER, 

not  entitled  to  commissions,  976. 

rule  does  not  apply  to  single  sale  by  private  person,  976 
USAGE, 

principal  deals  in  contemplation  of,  when,  281. 
to  be  valid,  must  be  reasonable,  281. 

and  must  not  violate  positive  law,  281. 

and  must  be  general,  281. 
principal  may  rebut  presumption  where  usage  is  local,  281. 
usage  cannot  change  intrinsic  character  of  agency,  281. 

nor  contravene  express  instructions,  281. 

nor  contradict  express  contract,  281. 

nor  authorize  making  invalid  contracts,  281. 

nor  bind  principal  to  take  thing  he  did  not  order,  281. 
will  not  justify  taking  commissions  from  both  parties,  972. 
will  not  justify  sale  on  short  credit  when  instructed  to  sell  for  cash,  1010. 


978  INDEX. 

Heferenoes  are  to  Sections. 

VSAQB,— Continued. 

will  not  justify  factor  in  shipping  goods  elsewhere  for  sale,  1017, 
or  in  pledging  the  goods,  994. 
USURY, 

when  principal  responsible  for,  in  loans  made  by  agent,  745. 
VOLUNTEER, 

assisting  seryant  is  a  fellow-servant,  669. 
cannot  recover  for  services  rendered,  600. 
broker  must  show  an  employment,  965. 
VOTERS, 

agreements  to  "  work  and  canvass  "  void,  30,  31. 
to  use  personal  influence  upon,  void,  30,  31. 
WAIVER, 

of  liability  fornegligence,  invalid,  671, 
WAR, 

dissolves  agency,  269. 
WARRANTY  OF  AUTHORITY, 

agent  liable  for,  though  made  in  good  faith,  543. 
a  fortiori  liable  when  known  to  be  false,  543. 
agent  liable  on  implied,  when  he  assumes  to  act  as  agent,  545. 
a  fortiori,  liable  when  he  knows  he  is  not  authorized,  544. 
not  liable  on  implied,  when  he  discloses  all  the  facts,  546, 
warranty  is  of  authority  in  faet,  not  in  law,  545,  553,  note, 
no  impl'ed,  in  case  of  public  agent,  547. 
contract  must  have  been  one  enforceable  against  principal  if  it  had  been 

authorized,  548. 
when  agent  liable  in  assumpsit,  549. 

when  in  action  for  the  deceit,  549. 
agent  not  liable  on  contract  itself  unless  containing  apt  words  to  charge 

him,  550. 
remedy  is  for  breach  of  express  or  implied  warranty  of  authority,  550. 
when  agent  warrants  sufficiency  of  authority  to  execute  in  a  certain  man- 
ner, 558. 
warranty  limited  to  facts  only  and  not  to  law,  553,  note. 
WARRANTY  OF  QUALITY, 

when  agent  may  give,  347,  348,  349. 

agent  authorized  to  sell  commercial  paper  may  warrant  its  commercial 

character,  349. 
agent  authorized  to  sell  goods  not  present,  may  warrant  quality,  349. 
agent  selling  machines  may  warrant  quality,  349. 

custom  or  orders  not  to  warrant  immaterial  unless  purchaser  knew 
of  it,  349. 
agent  selling  machines  may  give  privilege  of  return  if  not  satisfactory, 
849. 
or  sell  on  condition  that  machine  does  good  work,  349. 
or  may  waive  return  of  machine,  349. 
fart  that  principal  furnished  ageut  with  a  printed  warranty  does  not  pre- 
cluio  oral  one  unless  purchaser  knew  of  it,  349. 


INDEX.  979 

Heferenees  are  to  Sections. 

WARRANTY  OF  QUALITY,— Cim^mwed. 

agent  may  not  warrant  when  warranty  is  not  usually  given,  850. 
nor  can  he  give  unusual  or  extraordinary  warranty,  350. 

agent  selling  liquors  may  warrant  their  quality,  but  not  that  they  will  not 
be  seized  for  violation  of  revenue  laws,  350. 

agent  to  sell  flour  may  not  warrant  that  it  will  remain  sweet  during  long 
sea  voyage,  350. 

agent  to  sell  safe  cannot  warrant  it  burglar  proof,  350. 

agent  to  sell  horse  may  warrant  it,  when,  350. 

giving  of,  how  ratified,  151. 
WARRANTY  OF  TITLE, 

when  agent  to  sell  lands  may  give,  822. 

when  agent  to  sell  personal  property  may  give,  851. 
WILFUL  ACTS, 

when  principal  liable  for  agents,  741. 
\VITNESS, 

agent  competent  as,  to  prove  his  authority,  103. 
WOOD  V.  GOODRIDQE, 

rule  of,  as  to  execution  of  deeds,  427-428. 
YEARLY  HIRING, 

not  implied  from  yearly  salary  merely,  313. 

but  may  be  implied  from  circumstances,  213. 
instances  of  this,  212. 

continuance  for  second  year,  deemed  to  be,  and  on  same  terms,  212. 


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